Allen v. State

OPINION ON STATE’S MOTION FOR REHEARING

McCORMICK, Judge.

Appellant was convicted of burglary of a habitation. Punishment, enhanced by a pri- or conviction, was assessed at fifteen years’ confinement. On appeal, appellant argued that the prosecutor indulged in im-porper jury argument by commenting on the appellant’s failure to testify. The Dallas Court of Appeals held that a reasonable jury would not have interpreted the prosecutor’s argument as a comment on the appellant’s failure to testify, but rather as an explanation in response to defense counsel’s prior argument. Allen v. State, 638 S.W.2d 225 (Tex.Cr.App.1982). We agree and affirm the judgments of the trial court and the Court of Appeals.

At trial the complaining witness testified that during the afternoon of May 12, 1980, she left her apartment to go to the laundry room of her apartment complex. She related that she stayed in the laundry room approximately ten minutes. As she was returning to her third floor apartment, she saw the appellant coming out of her apartment and carrying her stereo receiver in his hands. When she asked appellant what he was doing with her stereo receiver, he replied “Maintenance” and ran past her down the steps. The complainant testified that she ran to her apartment and called the police; thereafter she went to the apartment complex parking lot to look for appellant but she was unsuccessful in her quest. Finally, the complainant testified that her stereo receiver had not been recovered.

During his closing argument at the guilt-innocence portion of the trial, the prosecutor argued the following:

“... What was stolen was her Sony AM/FM receiver. Where are we going to find the fingerprints? Mr. Byck said we didn’t bring any fingerprints. Show us the Sony receiver and maybe we will get you some fingerprints. Somebody knows where it is, from the evidence you heard, Johnny Wayne Allen knows what happened to it.
“MR. BYCK: Objection, You honor, that’s a direct comment on the Defendant’s failure to testify.
“THE COURT: The Jury will not consider the last remark of counsel for any purpose.
“MR. BYCK: If taking that was a granting of our exception and objection, we respectfully move for a mistrial.
“THE COURT: Overruled. You have your exception in the record.
“MR. REVESZ [the prosecutor]: The only thing that was taken from that apartment and the only thing he left fingerprints on was the Sony AM/FM receiver and that has not been recovered. She said she doesn’t have it back....”

The appellant continues to maintain that such argument constituted a comment on his failure to testify. However, a reading of the entire jury argument of both sides shows that the prosecutor’s argument was clearly invited by earlier argument of appellant’s attorney. Earlier the defense attorney had made the following argument:

*385“... we talked about the presumption of innocense (sic). Well, certainly the State rebutted that presumption and we go to the next rule, the burden of proof and that is the duty of the State of Texas to bring you all the information and all of the facts and all of the witnesses and all of the evidence that they need and you need to form a conclusion of guilty beyond a reasonable doubt. Has the State of Texas showed that burden? I submit to you that it has not.... You’re being asked to convict Johnny Wayne Allen all on one person’s testimony. See, the State of Texas has a burden of proof and in a criminal jury trial, it’s not a modern art gallery and would the State of Texas even bother to tell you whether or not Johnny Wayne Allen was arrested and wouldn’t you think it would be important if they arrested him the very next day wearing exactly the same kind of t-shirt but you didn’t hear anything like that. The State of Texas didn’t bring any of that evidence, the stereo — the stereo that Ms. McBride recognized three floors away, she read the word three floors away and did the State of Texas make any effort to show you anything about the stereo? Wouldn’t that be important if they had arrested him the next day or the day after? The State of Texas is bringing you an imcomplete picture. I can’t speculate on what else they might have or might not have brought but the truth of the matter is, what you heard in this courtroom for 40 minutes and what you didn’t hear about any efforts of the police officers going out and making any sort of fingerprints or asking if anybody was seen by neighbors or finding individuals to collaborate Ms. McBride’s story and as a result, there is no collaboration.”

Clearly the defense attorney was implying to the jury that the State had some evidence — either the stereo itself or fingerprints taken off the stereo — that it was keeping from the jury. The State’s argument was merely a response to defense counsel’s argument and no more.

A similar situation occurred in Larkin v. State, 157 Tex.Cr.R. 284, 248 S.W.2d 134, 143 (1952) (Opinion on Appellant’s Second Motion for Rehearing), a case in which the defendant, the superintendent of the Lake-view School District in San Angelo, was convicted of embezzlement. Evidence adduced at trial showed that Larkin had never submitted a written accounting to the school board regarding the funds he was accused of embezzling. In his closing argument, Larkin’s attorney argued that the school board had made no accounting of the funds and, in reality, the defendant owed the school board nothing. In response the prosecutor argued the following:

“ ‘E.O. Larkin has not reported to this day what he has done with that money.’ ‘Speaking of reports, here it is the 29th day of November, and still no report from Larkin.’ ‘In answer to Mr. Scarborough’s question ‘Why didn’t we bring the cards and put them on the table.’ E.O. Larkin is the only man that has the cards. E.O. Larkin is the only man that knows. E.O. Larkin is the only man that could bring us that information from his records. Why didn’t E.O. Larkin make a report. Mr. Larkin knew that if he made a report that it would show that he was guilty of embezzlement.’ ”

On appeal, Larkin argued that the prosecutor’s remarks constituted a reference to his failure to testify. This Court overruled appellant’s ground of error and held that the prosecutor’s argument was based on the evidence and was made in answer to defense counsel’s argument.

A prosecutor’s comment on a defendant’s failure to testify offends both our State and Federal Constitutions as well as Article 38.08, V.A.C.C.P. Nickens v. State, 604 S.W.2d 101 (Tex.Cr.App.1980). However, it is well-settled that before a comment is held to be a comment on a defendant’s failure to testify that it must be either manifestly intended, or of such a character that the jury would naturally and necessarily take it to be a comment on the defendant’s failure to testify. Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975). *386A mere implication or indirect allusion to a defendant’s failure to testify will not result in reversible error. Pollard v. State, 552 S.W.2d 475 (Tex.Cr.App.1977).

We find that the argument in the instant case was no of the offending variety. The State was endeavoring to answer the defense counsel’s query as to missing evidence, namely the stereo receiver and the thief’s fingerprints. In this context, we do not believe the jury was led to interpret the prosecutor’s remarks as a comment on the appellant’s failure to testify. We agree with the State that the argument was invited by the previous argument of defense counsel and was merely a summation of the evidence — the evidence showed that only the appellant knew what happened to the stereo receiver. Appellant’s ground of error is overruled.

The judgments of the Court of Appeals and the trial court are affirmed.

TEAGUE, MILLER and CAMPBELL, JJ., dissent. CLINTON, J., not participating.