Snowden, Rion Pheal

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1524-10

RION PHEAL SNOWDEN, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

DALLAS COUNTY

P RICE, J., delivered the opinion of the Court in which K ELLER, P.J., and M EYERS,

J OHNSON, K EASLER, H ERVEY, C OCHRAN and A LCALA, JJ., joined. W OMACK, J.,

dissented.

OPINION

Rion Pheal Snowden, the appellant, was convicted by a jury of family-violence assault

on Lavondra Jennings, who was about thirty-eight weeks pregnant with the appellant’s child

at the time of the assault. The jury assessed punishment at two years’ imprisonment. In an

unpublished opinion, the Fifth Court of Appeals in Dallas reversed the appellant’s conviction

and remanded the cause to the trial court for a new trial. The court of appeals held that the

Snowden — 2

trial court erred in overruling the appellant’s objection to the State’s improper jury argument

commenting on his failure to testify.1 The court of appeals was unable to conclude beyond

a reasonable doubt that the trial court’s error did not contribute to the appellant’s conviction

or punishment.2 In her petition for discretionary review, the State Prosecuting Attorney

(SPA) argues that this Court should reassess the appropriateness of certain factors set forth

in Harris v. State in assessing the harmfulness of constitutional error.3 We granted the SPA’s

petition for discretionary review to address this issue, and we now reverse.

FACTS AND PROCEDURAL POSTURE

At Trial

Jennings testified at trial that she and the appellant were at the public library in

Garland when she discovered that the appellant was cheating on her. They left the library

together, and an argument ensued while Jennings and the appellant were in the car. The

appellant cursed at her and hit her in the face several times, but without much force, while

he was driving them back to their apartment. Once they arrived at the apartment, Jennings

ran inside and locked herself in a bathroom to call 911. As the appellant was forcing the

bathroom door open, he hit her in the face again several times, but again without much force.

1

Snowden v. State, 2010 WL 2927472, No. 05-09-00652-CR (Tex. App.—Dallas, delivered

July 28, 2010) (not designated for publication).

2

Id.

3

790 S.W.2d 568 (Tex. Crim. App. 1989).

Snowden — 3

Once he gained entry into the bathroom, however, he deliberately punched her once in the

stomach with a closed fist.

At the end of her summation at the guilt phase of trial, in the course of urging the jury

to credit Jennings’s account of the altercation in the bathroom because it was consistent with

content of the 911 recording, the prosecutor continued:

What does she say? What does she say? Please, just don’t hurt the baby. Just

leave. Just go. She doesn’t want to. She’s not there to get him in trouble.

She’s not trying to make it worse. She’s not trying to put on a big production.

She wants him to just get out. She is there to protect her baby as mothers do.

And he [the appellant] doesn’t give two hoots about the mother of his baby or

his baby because he looks her in the eye and punches her in her 38 week old

stomach without remorse, just like he is today.

The appellant immediately objected that this argument constituted a comment on his failure

to testify, but the trial court overruled the objection. The jury found the appellant guilty, and

he appealed.

In the Court of Appeals

On appeal, the appellant argued, inter alia, that the trial court erred in overruling his

objection to the prosecutor’s argument as quoted above. The court of appeals agreed with

the appellant that the prosecutor’s remark constituted an improper comment on his failure to

testify because it called the jury’s attention to the absence of evidence that only the appellant

could supply.4 The prosecutor’s remark, according to the court of appeals, could not be

4

Snowden, supra, at *2. Prosecutorial comment on an accused’s failure to testify violates his

state and federal constitutional privileges against self-incrimination. Moore v. State, 849 S.W.2d

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construed as a reference to a failure to provide evidence from a source other than the

appellant, and there was no other testimony concerning the appellant’s lack of remorse.

After concluding that the trial court erred in overruling the objection, the court of appeals

then proceeded to determine whether the error caused the appellant harm.

Because the error infringed upon the appellant’s privilege against self-incrimination,

and was thus of constitutional magnitude, the court of appeals analyzed the error under Rule

44.2(a) of the Texas Rules of Appellate Procedure.5 In addition, in conducting its harm

analysis, the court of appeals applied the factors for determining the harmfulness of

constitutional errors that this Court identified in Harris. After reviewing the record and

performing the harm analysis required by Rule 44.2(a), and specifically considering the

Harris factors to aid in this undertaking, the court of appeals declared itself unable to

conclude beyond a reasonable doubt that the trial court’s error did not contribute to the

appellant’s conviction or punishment.6 Therefore, the court of appeals reversed the trial

350, 351 (Tex. Crim. App. 1993). In order for a comment to violate a defendant’s right against self-

incrimination, the language used must be “manifestly intended or . . . of such a character that the jury

would necessarily and naturally take it as a comment on the defendant’s failure to testify.”

Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). Under some circumstances, a

comment concerning a defendant’s lack of remorse constitutes a comment on the defendant’s failure

to testify. Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992).

5

See TEX . R. APP . P. 44.2(a) (“If the appellate record in a criminal case reveals constitutional

error that is subject to harmless error review, the court of appeals must reverse a judgment of

conviction or punishment unless the court determines beyond a reasonable doubt that the error did

not contribute to the conviction or punishment.”).

6

Snowden, supra, at *4.

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court’s judgment and remanded the cause for “further proceedings consistent with” its

opinion—presumably a new trial.7 We granted the SPA’s petition for discretionary review

to reconsider the propriety of the court of appeals’s reliance on the Harris factors.

THE HARRIS FACTORS

When a prosecutorial remark impinges upon an appellant’s privilege against self-

incrimination under the constitution of Texas or of the United States, it is error of

constitutional magnitude.8 When confronted with a constitutional error, a reviewing court

must analyze the error under Rule 44.2(a), reversing the judgment unless it can conclude

beyond a reasonable doubt that the error did not contribute to the defendant’s conviction or

punishment. In conducting an analysis for harm, vel non, under Rule 44.2(a), this Court has

sometimes, but not always, utilized the factors we set out in Harris.9

Harris was decided in 1989, before the adoption of Rule 44.2 in 1997. At that time,

former Rule 81(b)(2) governed, applying the same harmless-error standard—the

constitutional harm analysis—regardless of whether the error was of constitutional

7

Id.

8

Canales v. State, 98 S.W.3d 690, 695 (Tex. Crim. App. 2003); Bustamante v. State, 48

S.W.3d 761, 764 (Tex. Crim. App. 2001).

9

See Mason v. State, 322 S.W.3d 251, 257 n.10 (Tex. Crim. App. 2010) (rejecting uncritical

reliance on all of the Harris factors for harmless-error analysis of non-constitutional error under Rule

44.2(b), while acknowledging that “the Harris factors might still be applicable in Rule 44.2(a)

analyses”).

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magnitude.10 In Harris, this Court found that the trial court erred in allowing the introduction

of the defendant’s extraneous offenses—a non-constitutional error. We then determined

whether the erroneous introduction of those extraneous offenses should result in reversal

under former Rule 81(b)(2), which we characterized as the “rhetorical and semantic

equivalent of the harmless error standard announced by the Supreme Court for constitutional

errors in Chapman v. California.”11 Under a constitutional harm analysis, a reviewing court

must reverse unless it “concludes beyond a reasonable doubt that the error did not contribute

to the conviction or the punishment assessed.” 12

What Harris found lacking, however, both in Supreme Court case law and from the

face of Rule 81(b)(2) itself, were “objective standards that must be explored to reach a

legally correct resolution.”13 More specifically, we noted an apparent ambivalence on the

part of the Supreme Court with respect to the proper role of so-called “overwhelming

10

See former TEX . R. APP. P. 81(b)(2) (“If the appellate record in a criminal case reveals error

in the proceedings below, the appellate court shall reverse the judgment under review, unless the

appellate court determines beyond a reasonable doubt that the error made no contribution to the

conviction or to the punishment.”).

11

Harris, supra, at 584. See Chapman v. California, 386 U.S.18, 24 (1967) (“before a federal

constitutional error can be held harmless, the court must be able to declare a belief that it was

harmless beyond a reasonable doubt.”).

12

Harris, supra, at 584.

13

Id. at 585.

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evidence” in the conduct of a constitutional harm analysis.14 While we ultimately

acknowledged the proper role that the existence of overwhelming evidence may play in the

determination whether an error can truly be said to have contributed to the conviction or

punishment in a given case,15 we rejected the proposition that a constitutional error may be

deemed harmless simply because the reviewing court is confident that the result the jury

reached was objectively correct or that, in any event, the jury could have reached the same

14

Id. at 586-87. To a certain extent, the ambivalence we noted apparently continues, as

evidenced by a comparison of Supreme Court cases decided since Harris. Compare Sullivan v.

Louisiana, 508 U.S. 275, 279 (1993) (“The inquiry . . . is not whether, in a trial that occurred without

the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually

rendered in this trial was surely unattributable to the error.”) with Neder v. United States, 527 U.S.

1, 17 (1999) (“[W]here a reviewing court concludes beyond a reasonable doubt that [an element of

the offense that was erroneously omitted from the jury charge authorizing conviction] was

uncontested and supported by overwhelming evidence, such that the jury verdict would have been

the same absent the error, the erroneous instruction is properly found to be harmless.”), and

Washington v. Recuenco, 548 U.S. 212, 219-20 (2006) (same with respect to punishment-phase facts

that must be determined by a jury). See also Wayne R. LaFave, et al., 7 CRIMINAL PROCEDURE §

27.6(e) (3d ed. 2007), at 134 (noting that, since the constitutional harmless-error rule was originally

recognized in Chapman, the Supreme Court “has appeared to move back and forth between relying

heavily upon the presence of proof of guilt in its harmless error analysis, and considering that proof

as less central to the inquiry”).

15

See, e.g., Yates v. Evatt, 500 U.S. 391, 403-405 (1991) (“To say that an error did not

‘contribute’ to the ensuing verdict is not, of course, to say that the jury was totally unaware of that

feature of the trial later held to have been erroneous. * * * To say that an error did not contribute

to the verdict is, rather, to find that error unimportant in relation to everything else the jury

considered on the issue in question, as revealed in the record. * * * Since that enquiry cannot be

a subjective one into the jurors’ minds, a court must approach it by asking whether the force of the

evidence [apart from the error] is so overwhelming as to leave it beyond a reasonable doubt that the

verdict resting on that evidence would have been the same in the absence of [the error]. It is only

when the effect of [the error] is comparatively minimal to this degree that it can be said, in

Chapman’s words, that [the error] did not contribute to the verdict rendered.”).

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result no matter how much the error may have facilitated that resolution.16 Instead, we

repeatedly emphasized that Rule 81(b)(2) requires reviewing courts to focus, not upon the

perceived accuracy of the conviction or punishment, but upon the error itself in the context

of the trial as a whole, in order to determine the likelihood that it genuinely corrupted the

fact-finding process.17

However, having concluded in Harris that the constitutional harmless-error standard

should ultimately serve to vindicate the integrity of the fact-finding process rather than

simply looking to the justifiability of the fact-finder’s result, we nevertheless declared

ourselves unable to articulate a hard and fast rule that would invariably accomplish this goal.

The most we found we could do to effectively guide future harmless-error analyses was to

“state a general formulation of what [Rule] 81(b)(2) requires, set out general considerations

16

Harris, supra, at 585 (“overwhelming evidence” test for harmless error “is incorrect because

the language of the rule focuses upon the error and not the remaining evidence” and “dictates that

a reviewing court’s responsibility transcends determining whether the conviction was correct[,]” thus

avoiding “substituting [the appellate court] for the trial court or the jury”); id. (inappropriate simply

to inquire in a harmless-error analysis, “would the appellant have been convicted in any event?”);

id. (quoting Fahy v. Connecticut, 375 U.S. 85, at 88 (1963), for the proposition that the harmless-

error rule is “not concerned . . . with whether there was sufficient evidence on which the [accused]

could have been convicted”); id. at 586 (noting that Fahy rejected a “correct result” standard for

harmless error).

17

Id. at 587-88 (“In summary, a reviewing court in applying the harmless error rule should not

focus upon the propriety of the outcome of the trial. Instead, an appellate court should be concerned

with the integrity of the process leading to the conviction. * * * [T]he reviewing court should focus

not on the weight of the other evidence of guilt, but rather on whether the error at issue might

possibly have prejudiced the jurors’ decision-making; it should ask not whether the jury reached the

correct result, but rather whether the jurors were able properly to apply law to facts in order to reach

a verdict.”).

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which may be relevant, and trust individual judges to use these observations in their personal

calculus.”18 Along the way, we identified certain factors we deemed relevant in most cases:

[T]he [reviewing] court should examine the source of the error, the nature of

the error, whether or to what extent it was emphasized by the State, and its

probable collateral implications. Further, the court should consider how much

weight a juror would probably place upon the error. In addition, the Court must

also determine whether declaring the error harmless would encourage the State

to repeat it with impunity.19

Since the advent of Rule 44.2, we have rejected the applicability of some of these factors for

purposes of an analysis for harm, vel non, of non-constitutional error under Rule 44.2(b).20

The SPA now argues that at least some of those factors likewise do not belong in an analysis

of harm for constitutional error under Rule 44.2(a). We agree with the SPA that at least some

of the specific Harris factors have no logical bearing on whether a particular constitutional

error “did not contribute to the verdict obtained.”21 We think that the present case well

illustrates the point, and so we turn next to an examination of the court of appeals’s

application of the Harris factors here.

ANALYSIS

In concluding that the prosecutor’s comment on the appellant’s lack of remorse was

18

Id. at 587.

19

Id.

20

See note 9, ante.

21

Chapman, supra, at 24.

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not harmless beyond a reasonable doubt, the court of appeals addressed each of the Harris

factors in turn.22 First, the court of appeals noted that the source of the error was the State,

rejecting the State’s argument that the prosecutor’s argument might legitimately have been

construed by the jury as a comment on the appellant’s lack of remorse as evidenced by his

conduct at the time of the assault.23 Next, the court of appeals found that the nature of the

error was an improper comment on the appellant’s failure to testify, in derogation of

“mandatory constitutional and statutory protections”—essentially just reiterating its

conclusion that error of such a nature had occurred.24 Addressing the extent to which the

State may have emphasized the error, the court of appeals observed that, later, during her

brief punishment-phase argument, the prosecutor asserted no fewer than four times that the

appellant “doesn’t care” what injury he may have caused the victim or her baby.25 The court

of appeals then repeated this observation in its analysis of the fifth and sixth Harris factors,

the probable implications of the error and weight the jury likely would have placed upon it.26

Finally, while expressly declining to attribute any “intentional misconduct or ill will on the

22

Snowden, supra, at *3-4.

23

Id. at *3.

24

Id.

25

Id.

26

Id. at *4.

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part of the State[,]” the court of appeals nevertheless, in addressing the last Harris factor,

whether declaring the error harmless would encourage future misconduct by the State,

declared itself “loathe to open the door to similar comments in other cases.” 27 Considering

all of these factors together, the court of appeals was unable to conclude beyond a reasonable

doubt that the error did not contribute to the appellant’s conviction or punishment.28

We think the court of appeals’s analysis serves to demonstrate the actual disutility of

several of the Harris factors. To begin with, addressing the first factor, we fail to see how

purporting to identify the State as the “source” of constitutional error reveals anything about

whether, or to what extent, the error may have contributed to the conviction. The parties do

not ordinarily commit error; the trial court does, whenever it acts, or fails to act, over the

legitimate objection of a party or it conducts trial proceedings in a manner inconsistent with

a constitutional or statutory requirement that is not optional with the parties.29 That in a

particular instance the trial court committed error at the behest of the State does not

ordinarily tell a reviewing court anything useful about the corrupting impact the error may

27

Id.

28

Id.

29

See Marin v. State, 851 S.W.2d 275, 278-80 (Tex. Crim. App. 1993) (appealable errors fall

into three categories: 1) violation of forfeitable rights, which must be preserved for appeal by timely

and specific objection; 2) violation of rights that must be expressly waived, which may be vindicated

on appeal in the absence of such a waiver; and 3) violation of a systemic prohibition or requirement

not optional with the parties at trial, which may always be remedied on appeal, regardless of waiver

or forfeiture).

Snowden — 12

have had on the fact-finder’s deliberative function. It smacks, instead, of a purely punitive

impulse. But punishing the party responsible for leading the trial court into error is not the

same thing as, and is not a logical component of, calculating the influence that error had upon

the fact-finder’s decision-making process.

For essentially the same reason, we fail to see the utility of the last Harris factor,

namely, whether declaring the error harmless would encourage repeat performances by the

State. As Judge Clinton remarked in his separate opinion in Higginbotham v. State, the

harmless-error standard was never intended to satisfy any punitive, deterrent, or remedial

purpose.30 While Harris appropriately focused on the integrity of the process by which

convictions and punishments are obtained, it erred to include within its ambit any concern

for the integrity of future trials. The harmless-error inquiry under Rule 44.2(a) should adhere

strictly to the question of whether the error committed in a particular case contributed to the

verdict obtained in that case. The court of appeals was misled to the extent that it relied

upon the first and last of the Harris factors, which we now expressly disavow.

The remaining Harris factors—the nature of the error (e.g., erroneous admission or

exclusion of evidence, objectionable jury argument, etc.), whether it was emphasized by the

State, the probable implications of the error, and the weight the jury would likely have

30

807 S.W.2d 732, 739-40 (Tex. Crim. App. 1991) (Clinton, J., concurring) (“While one can

only surmise what Harris means by ‘the source of the error,’ . . . surely it does not include subjective

intent of the prosecutor in the case. The harmless error rule is not an exclusionary device to deter

prosecutorial overreaching or police misconduct.”).

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assigned to it in the course of its deliberations—remain as viable considerations in deciding

whether trial error of a constitutional dimension contributed to the conviction or punishment

in many cases. But they are not exclusive considerations in any particular case; many other

considerations may logically serve to inform a proper harm analysis in a given case. On the

other hand, not every remaining Harris factor will invariably have logical application with

respect to every conceivable constitutional error that may be subject to an analysis for harm.

At bottom, an analysis for whether a particular constitutional error is harmless should take

into account any and every circumstance apparent in the record that logically informs an

appellate determination whether “beyond a reasonable doubt [that particular] error did not

contribute to the conviction or punishment.” 31

31

TEX . R. APP. P. 44.2(a). There is no set formula for conducting a harm analysis that

necessarily applies across the board, to every case and every type of constitutional error. Perhaps

the most that can be said is that what Harris called the “nature” of the constitutional error will

frequently suggest, and sometimes dictate, other relevant considerations in an appropriate harm

analysis. For example, in Delaware v. Van Arsdall, 475 U.S. 673 (1986), the constitutional error was

the exclusion of evidence, rather than the erroneous admission of evidence, in violation of the Sixth

Amendment Confrontation Clause. “The correct inquiry” for whether the exclusion of evidence in

violation of the Confrontation Clause is harmless, the Supreme Court announced, “is whether,

assuming that the damaging potential of the [excluded evidence] were fully realized, a reviewing

court might nonetheless say that the error was harmless beyond a reasonable doubt.” Id. at 684.

After indulging this preliminary assumption, however, an appellate court should go on to examine

“a host of factors” that are relevant to many harmless error analyses and are

all readily accessible to reviewing courts. These factors include the importance of

the witness’ testimony in the prosecution’s case, whether the testimony was

cumulative, the presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points, the extent of cross-examination

otherwise permitted, and, of course, the overall strength of the prosecution’s case.

Id.; see also Davis v. State, 203 S.W.3d 845, 850 (Tex. Crim. App. 2006) (“Most of these factors

apply regardless of whether the constitutional error was in the admission or exclusion of evidence.”).

Snowden — 14

In this particular case, we do not believe that the court of appeals erred to take the

remaining Harris factors into account. How emphatically the prosecutor invited the jury to

consider the appellant’s failure to testify, whether he repeated the invitation once the

appellant’s objection was overruled, and how much heft the jury would likely have placed

upon that invitation in light of the weight and character of the State’s evidence in the case,

are certainly relevant questions here. However, we believe the court of appeals was

ultimately mistaken in its assessment of these remaining factors. Specifically, in addressing

each of these factors, the court of appeals assigned undue significance to the fact that the

prosecutor, during her later summation at the punishment phase, continued to emphasize that

the appellant “doesn’t care” about the consequences of his actions.32

Our conclusion that the court of appeals mis-analyzed the remaining factors stems

from a disagreement with that court about the true scope of the error that actually occurred.

Unlike the court of appeals, we accept the State’s appellate assertion that at least a portion

of the prosecutor’s contested guilt-phase argument in fact constituted a legitimate summary

of the evidence or, failing that, an invitation to draw a reasonable inference from the

Constitutional errors of a different nature, however, such as a burden-shifting jury instruction that

violates due process, may call for a somewhat narrower set of considerations, relevant strictly to the

question “whether the jury actually rested its verdict on evidence establishing the presumed fact

beyond a reasonable doubt, independently of the presumption.” Yates, supra, at 404. See also

Neder, supra, at 18-19 (where jury charge omits an essential element of the offense, constitutional

defect may yet be declared harmless if it appears from the record that the prosecution’s evidence

overwhelmingly established the omitted element and the “defendant did not, and apparently could

not, bring forth facts contesting” it).

32

Snowden, supra, at *3.

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evidence.33 Jennings had testified that, on the drive home from the library and in the

bathroom, the appellant had struck her in the face as many as six times in all, albeit without

enough force to really hurt her. But once the appellant barged into the bathroom:

Q. Did he punch you in the stomach?

A. Yes.

Q. How did he punch you in the stomach?

A. With a closed fist.

Q. Where on your stomach did he punch you?

A. Right above my belly button.

Q. Is there – is it possible that he could have accidently punched you in the

stomach?

A. No.

Q. Why not?

A. Because he lifted his fist up, and he looked at me, and he just drew

forward.

In our view, this and other testimony in the record amply supports the prosecutor’s guilt-

33

The SPA did not seek, and we did not grant, discretionary review in this cause in order to

address the question whether the court of appeals was mistaken to conclude that error actually

occurred. Nevertheless, as part of its analysis of the Harris “source” factor for ascertaining harm,

the court of appeals explicitly rejected the State’s argument that the prosecutor’s challenged

summation constituted a legitimate invitation to infer an absence of remorse from the circumstances

of the offense itself. See id. (“In essence, the State seeks to have us infer a lack of remorse from the

commission of the crime itself. According to the State, because appellant’s actions evidence a lack

of remorse, the jury could have interpreted the prosecutor’s comment as a reference to this

evidence.”). In light of this aspect of the court of appeals’s harm analysis, we deem the question of

the true scope of the error that occurred to be embedded within SPA’s ground for review.

Snowden — 16

phase argument, at least to the extent that she asserted that the appellant “doesn’t give two

hoots about the mother of his baby or his baby because he looks her in the eye and punches

her in her 38-week-old stomach without remorse[.]”

Of course, this is not to reject the court of appeals’s conclusion that a constitutional

error occurred. The prosecutor clearly overreached when she continued her summation with

the assertion that the appellant’s lack of remorse at the time of the assault was “just like he

is today.” Whether the appellant was presently remorseful as he sat in the courtroom was a

circumstance that only he could have testified to; a jury is not entitled to infer as much from

its impression of his courtroom demeanor.34 Therefore, the prosecutor’s remark about the

appellant’s lack of remorse in the courtroom was an objectionable comment on the

appellant’s failure to testify because it highlighted for the jury the appellant’s failure to take

the stand and claim present remorse. But the inference that the appellant experienced no

remorse at the time that he punched Jennings in the stomach was circumstantially supported

by the record, and it was only this lack of remorse that the prosecutor re-emphasized in her

later punishment-phase summation. She argued:

34

We have held that prosecutorial comments on a defendant’s lack of remorse based solely on

his in-court demeanor constitutes an impermissible comment on his failure to testify. Dickinson v.

State, 685 S.W.2d 320 (Tex. Crim. App. 1984); George E. Dix & John M. Schmolesky, 43 TEXAS

PRACTICE : CRIMINAL PRACTICE AND PROCEDURE § 45:24 (3d ed. 2011). Cf. Archie v. State, 340

S.W.3d 734, 740 (Tex. Crim. App. 2011) (prosecutor’s question directed at defendant in courtroom

during final summation asking, “Do you still hear [a witness to the murder] screaming, Trent?” was

an improper comment on the defendant’s failure to testify inasmuch as it called for a present-sense

impression that only the defendant himself could supply).

Snowden — 17

We also have to look at [Jennings’s] testimony, if you can recall it. I

know it’s a few days ago. But if you can, recall her testimony and recall some

of the things that she said so that we can try to get a picture of what kind of

man we’re talking about, what kind of man this is.

Remember, [Jennings] said – she told him, I feel like I’m going into

labor. He doesn’t care. He says, if you get out of the car, I’m going to run you

over. What else does she say?

She says, I think I’m going into labor. I think I’m going to pass out.

He says, you know what, good. I hope you pass out. Then I can cut the baby

out of you and leave you here for dead. Okay? Remember those things that

she said.

Remember that on the 911, remember all that he cared about during the

whole thing – he didn’t care if she was going into labor. He didn’t care. But

he just looked her in the eye and intentionally punched her in the stomach, not

just her head, not just her arms, but in the stomach where his baby lived. He

punched her there looking her in the eye.

And remember, she’s going through all this. She’s in pain. She’s

doubled over, and he says – all he says is, did you call the police on me? Did

you call the police on me? He doesn’t care about her. He only cares about

himself and what’s about to happen to him, not what’s about to happen to this

sweet little baby and his girlfriend.

All of this argument was supported by Jennings’s testimony, and it merely called attention

to the appellant’s quite evident lack of remorse at the time of the offense. None of it served

to reinforce the prosecutor’s earlier guilt-phase argument that had improperly invoked the

appellant’s failure to take the stand to testify about his present-sense lack of remorse during

the trial itself. We therefore reject the court of appeals’s assertion that the punishment-phase

argument “underscored” the prosecutor’s improper guilt-phase allusion to the appellant’s

Snowden — 18

failure to take the witness stand and assert his remorse at the time of trial.35

To the extent that the trial court erred, therefore, it erred only in failing to sustain the

appellant’s objection to that part of the prosecutor’s summation directing the jury to consider

the appellant’s lack of present, in-court remorse. This error was isolated, and was imbedded

within a legitimate argument that invited the jury to draw an inference of lack of remorse at

the time of the offense, an inference that could reasonably be derived from the evidence at

trial. The illegitimate inference—that the jury should also hold the appellant’s apparent lack

of courtroom remorse against him, in derogation of his constitutional right to remain

silent—was never repeated or emphasized. Moreover, a jury that was legitimately invited

to consider the appellant’s apparent remorselessness at the time of the offense was not likely

to have been substantially prejudiced by an additional comment on his present lack of

remorse. The evidence against the appellant was substantial, if not overwhelming. The case

essentially boiled down to whether the jury found Jennings’s testimony credible in light of

the defensive posture that she had a motive to falsely accuse the appellant in retaliation for

his infidelity. A jury that did not believe Jennings would have no reason to hold the

appellant’s lack of courtroom remorse against him; a jury that did believe Jennings would

not likely find it necessary to resort to the prejudice inherent in a comment on his failure to

express courtroom remorse to convict him. In short, the precise error in this case, in our

view, did not move the jury from a state of non-persuasion to a state of persuasion on any

35

Snowden, supra, at *3.

Snowden — 19

material issue in the case;36 nor is it reasonably likely to have caused such prejudice as to

distract the jury or divert it from its proper fact-finding role. We are persuaded to a level of

confidence beyond a reasonable doubt that it made no contribution to the jury’s determination

that the appellant was guilty of assaulting Jennings.

It is at least conceivable that the prosecutor’s comment on the appellant’s lack of in-

court remorse could have influenced the jury in another way at the guilt phase of trial. In

order for the jury to find that the simple assault the appellant committed against Jennings

constituted a third-degree felony, the jury had to find that Jennings was a member of his

family or household at the time of the assault, and that he had previously been convicted of

a similar family-violence offense.37 The information alleged that the appellant had been

convicted of family-violence assault in cause number 02-290-K26 in Williamson County on

May 31, 2002, and the State introduced the judgment reflecting this conviction into evidence

at the conclusion of its presentation of evidence at the guilt phase of trial. The appellant did

not challenge the fact of his prior conviction. Perhaps it is possible that the jury could have

considered the appellant’s lack of in-court remorse in some kind of subliminal way as

evidence buttressing his status as a repeat family/household-violence offender. We regard

this possibility, however, as exceedingly remote. We conclude beyond a reasonable doubt

that the error in allowing the prosecutor to comment on the appellant’s lack of in-court

36

E.g., Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010).

37

TEX . PENAL CODE § 22.01(b)(2).

Snowden — 20

remorse was simply “unimportant in relation to everything else the jury considered on the

issue” of whether the appellant was previously convicted of family-violence assault.38

Nor, finally, do we regard the error as harmful with respect to punishment. The

appellant received a two-year sentence and no fine—the absolute minimum punishment he

could have received for this third-degree conviction.39 The jury heard substantial evidence,

in addition to the specific 2002 conviction in Williamson County, of the appellant’s prior

history of family violence and could also legitimately have considered his apparent lack of

remorse at the time he committed the instant offense, yet still chose to impose the least

punishment available. Under these circumstances, we are satisfied beyond a reasonable

doubt that any residual prejudice emanating from the prosecutor’s illegitimate guilt-phase

remark that called the jury’s attention to the appellant’s lack of in-court remorse contributed

not at all to its assessment of his punishment.

CONCLUSION

Accordingly, we reverse the judgment of the court of appeals and remand the cause

to that court to address the appellant’s remaining point of error.

DELIVERED: September 28, 2011

PUBLISH

38

Yates, supra, at 403.

39

TEX . PENAL CODE § 12.34.