holding that a lengthy and relentless diatribe directed at defendant's in-court demeanor during final argument improperly focused on the defendant’s neutral nontestimonial demeanor and thereby created an unreasonable inference of guilt
How later courts described this case
- holding that a lengthy and relentless diatribe directed at defendant's in-court demeanor during final argument improperly focused on the defendant’s neutral nontestimonial demeanor and thereby created an unreasonable inference of guilt
- holding that prosecutor’s argument on truthfulness of witness was reasonable deduction from witness’s testimonial demeanor, which is considered to be in evidence
- stating that that a trial court, by overruling an objection to an improper argument, puts “the stamp of judicial approval” on the improper comments, thus magnifying the possibility for harm
- stating that trial court, by overruling objection to improper argument, puts "the stamp of judicial approval" on improper comments, thus magnifying possibility for harm.
Written by the judges who cited it.
The opinion
*739 CLINTON, Judge,
concurring.
While I join the opinion of the Court, I doubt that the line it attempts to draw for counsel in referring to “demeanor of a testifying witness” is “bright” enough. 1 In this, it seems to me, this Court must be careful, cautious and precise in terms.
For both this Court and the Austin Court of Appeals, Langley v. State, 129 Tex.Cr.R. 254 , 86 S.W.2d 755 (1935), is the common genesis of notions of propriety in alluding to “demeanor of a testifying witness.” The opinion of this Court reads Langley as supporting only “the narrow principle that a party may allude to ... the demeanor of a testifying witness if the jury had the same opportunity to observe the demeanor during the witness’ testimony.” 2
Yet, neither opinion in Langley speaks of “alluding to testimonial demeanor.” Rather, writing for the Court on original submission, Judge Hawkins “perceive[d] no vice in the argument” quoted at page 736 of the opinion by Judge Campbell, because:
“Both House and appellant had been before the jury while testifying, and the district attorney seemed to have been stating the impression made upon him from an observation of them, which observation the jury had equal opportunity to make.”
Id., 86 S.W.2d at 757 . On rehearing Judge Lattimore found “manifest” that the jury has the same opportunity as the district attorney “to inspect the faces of appellant and the prosecuting witness;” therefore:
“[T]hat fact must show that the remarks of the state’s attorney expressing his opinion as to the difference between the appearances of the two men could neither add to nor take from knowledge possessed by every member of the jury as to the appearance of said individuals.”
Id., at 757.
Thus given conditions presented Langley allowed a prosecutor to express to a jury his own “impression” or “opinion” of contrasting character reflected in faces of opposing witnesses. 3 That is not, I submit, the same exercise as “alluding to testimonial demeanor,” which the Court says may be done in final argument on guilt. P. 737. Merely to allude to objective testimonial demeanor that jurors could themselves observe is plainly more benign than to characterize demeanor according to a partisan impression or opinion. The Court finds as much when it comes to evaluate the critical characterization at issue here as reasonable deduction from the evidence, holding that it is not. Pp. 736-737. If such a comment is not a reasonable deduction, it cannot be an “allusion to testimonial demean- or” and should not be allowed in the first place. 4
*740 With those observations, I join the opinion of the Court.
. Emphasis in original opinion by Judge Campbell at page 736. All other emphasis is mine throughout unless otherwise indicated.
. Emphasis in original opinion by Judge Campbell, page 736.
. Langley was first interpreted by the Court in Reynolds v. State, 505 S.W.2d 265 (Tex.Cr.App.1974), vi z:
"Such statements may be said to be in the nature of observations requiring no expertise, and therefore incapable of adding to or subtracting from the knowledge of the jurors who had likewise viewed the witnesses.”
Id., at 267 . Thus the Court approved a comment by defense counsel that his client "was shaking on the stand and appeared afraid;” but it found reversible error in a rejoinder statement by the prosecutor that accused was “coming down from an addictive drug,” because there was no evidence that he had such an “appearance” and the Court was unable to say that kind of condition "is of such common occurrence that its recognition requires no expertise." Ibid.
See also Jordan v. State, 646 S.W.2d 946, 948 (Tex.Cr.App.1983) (usually permissible for attorneys to comment on impressions made upon them where the jury has equal opportunity to make same observation) and Dupnik v. State, 654 S.W.2d 780, 788 (Tex.App.—Corpus Christi 1983) PDR refused (Langley permits prosecutor to direct jury to look at contemporaneous courtroom demeanor of accused: "just the way he glares at me_ Sits there and smirks.").
. Like Judge Teague, I am puzzled by the further treatment of Langley, viz:
"To the extent that Langley, supra, supports the conclusion that a reasonable inference of guilt may be drawn from neutral, orderly courtroom demeanor, it is overruled.”
P. 737. In that it implicates testimonial appearances only, Langley supports the conclusion that an attorney for a party may convey to a jury his own impression or opinion of good or bad char *740 acter traits reflected in the face of a testifying witness, it and its progeny should be overruled.