Carrillo v. State

EVANS, Justice,

assigned, dissenting.

I respectfully dissent.

In deciding whether a prosecutor’s argument constitutes a comment on the accused’s failure to testify, a court must look at the language from the standpoint of the jury. Banks v. State, 643 S.W.2d 129, 134 (Tex.Crim.App.1982), cert. denied, 464 U.S. 904 , 104 S.Ct. 259 , 78 L.Ed.2d 244 (1983). From that viewpoint, the court must determine whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the accused’s failure to testify. Id. In making this determination, the court must consider the prosecutor’s comment in light of the facts and circumstances of the particular case. McDaniel v. State, 524 S.W.2d 68, 70 (Tex.Crim.App.1975); Roller v. State, 518 S.W.2d 373, 375-76 (Tex.Crim.App.1975).

The majority has concluded that the prosecutor’s statement in this case was of such a character that the jury would “naturally and necessarily take it to be a comment on appellant’s failure to testify.” Majority Opinion at 698; see also McKay v. State, 707 S.W.2d 23, 37 (Tex.Crim.App.1985), cert. denied, 479 U.S. 871 , 107 S.Ct. 239 , 93 L.Ed.2d 164 (1986). I do not agree with the majority’s conclusion.

As the State points out in its brief, the strategy of the defense was to create in the minds of the jury a reasonable doubt about the credibility and integrity of the State’s case, which was based entirely on the testimony of a police detective and a police chemist. In furtherance of this strategy, Carrillo’s counsel strenuously cross-examined the two State witnesses, trying to show inconsistencies in the testimony of the police detective and striving to create uncertainty about the identity of the contraband tested by the police chemist. In the State’s argument to the jury, the prosecutor first reviewed the evidence relating to the drug transaction and explained the way the police chemist conducted the analysis of the cocaine. The prosecutor then stated, “Ladies and gentlemen, it’s simple, it’s not been uncorroborated evidence, it’s not been disputed, it’s just a simple case.” The trial court sustained appellant’s objection to this statement and admonished the jury not to consider it. The court then overruled appellant’s motion for mistrial.

The record does not clearly reflect whether the prosecutor was referring to the testimony of the police detective, the testimony of the police chemist, or to all the evidence presented. Thus, I do not believe this court can conclude that the jury would “naturally and necessarily” take the prosecutor’s statement as a comment on Carrillo’s failure to testify.

Carrillo could have presented evidence, other than his own testimony, to rebut certain aspects of the State’s case, particularly with respect to the identity of the contraband tested by the police chemist. The prosecutor’s remark did not focus the jury’s attention on issues that only the appellant could rebut by his own testimony, nor did it call to the jury’s attention the absence of evidence that only Carrillo’s tes *701 timony could supply. See Madden v. State, 799 S.W.2d 683, 699-700 (Tex.Crim.App.1990), cer t. denied, — U.S.-, 111 S.Ct. 1432 , 113 L.Ed.2d 483 (1991).

In support of its ruling, the majority cites to Brown v. State, 814 S.W.2d 477 (Tex.App.—Dallas 1991, no pet.). Brown , a panel opinion of this court, is a robbery case in which the prosecutor, during the guilt-innocence stage of the trial commented, “Well, we don’t know what he sounds like when he talks. We know he has a gold tooth. Big deal.” Id. at 478 . The defense counsel objected that the prosecutor’s remark constituted a comment on the accused’s failure to testify; and the trial court sustained the objection and instructed the jury to disregard the remark. The court then overruled the defendant’s motion for mistrial.

A panel majority in Brown concluded that the prosecutor’s argument necessarily referred to the accused, Brown, and to Brown’s failure to testify regarding the circumstances of the offense. The majority determined that Brown was the only witness capable of revealing to the jury “what he sounds like when he talks” and that the prosecutor’s remarks improperly called into question Brown’s right to remain silent. Brown, 814 S.W.2d at 479 .

In my opinion, the facts in Brown distinguish it from the circumstances of this case. Here, although the jury might have inferred from the prosecutor’s statement that the prosecutor was referring to Carrillo’s failure to testify, the jury could also have reasoned that the prosecutor was referring to the absence of any rebutting evidence by the defense. Because the defense could have challenged certain aspects of the State’s case by evidence other than Carrillo’s own testimony, the State’s remark was, at most, an allusion to his failure to present any rebutting evidence. Accordingly, I would hold that the prosecutor’s remark did not “naturally and necessarily” constitute a comment on Carrillo’s failure to testify.

I am of the further opinion that any doubt about the focus of the State’s remark was cured by the court’s instruction to the jury to disregard the comment. Even assuming the prosecutor’s remark was improper, I do not believe the remark was so clearly calculated to inflame the minds of the jury and to be of such character as to suggest the impossibility of withdrawing the impression produced in their minds. See Gardner v. State, 730 S.W.2d 675, 700 (Tex.Crim.App.1987), cert. denied, 484 U.S. 905 , 108 S.Ct. 248 , 98 L.Ed.2d 206 (1987); Davis v. State, 645 S.W.2d 817, 818-19 (Tex.Crim.App.1983).

I would overrule appellant’s third point of error.

Because the majority does not address the appellant’s first two points of error, I am reluctant to do so here. However, I cannot agree with the majority’s suggestion that the cumulative effect of the State’s testimony was so harmful that it could not be cured by the trial court’s instructions.