defense attorney's statement that the prosecutor was standing behind the defendant when he raised his voice and looked down at the defendant and said "there is somebody that we haven't heard from in this case," was accepted by this Court as being true since it was "undisputed by the prosecutor and unquestioned and unqualified by the court in whose presence the statement was made."
How later courts described this case
- defense attorney's statement that the prosecutor was standing behind the defendant when he raised his voice and looked down at the defendant and said "there is somebody that we haven't heard from in this case," was accepted by this Court as being true since it was "undisputed by the prosecutor and unquestioned and unqualified by the court in whose presence the statement was made."
- accepting defense counsel statement describing prosecutor’s physical actions –20– during improper argument when statement was undisputed by prosecutor and was unquestioned or unqualified by trial court
- “[T]he prosecutor was standing behind the appellant when he raised his voice, looked down at the appellant and stated, ‘But there is somebody that we haven’t heard from in this case. And I think you all know who it is.’”
- defense counsel's unsworn statements included in statement of facts put matter before the court
Written by the judges who cited it.
The opinion
ODOM, Judge
(concurring).
I concur in the reversal of this conviction, but take exception to the majority’s reliance upon Article 40.09(4), V.A.C.C.P. That provision is authority for finding that counsel made the statement appearing in the record before us. It is not authority for finding that counsel’s statement is an accurate statement of what occurred.
Although Article 40.09(4) is not authority for holding that counsel’s statement for the record is accurate, I believe the statement itself must be taken as accurate because it was not qualified or disputed by the court or prosecutor, both of whom were in a position to view the occurrence and make a statement for the record of what did occur. If the proposition asserted by the dissent, that a statement “let the record reflect” not specially certified by the trial court shows nothing, is correct, then many cases would require reversal for insufficient evidence because of the widespread prosecutorial practice of having State’s witnesses point at someone in the courtroom and the prosecutor then stating, “Let the record reflect the witness has identified the defendant.”
The statement of the prosecutor in the instant case is not a qualification of the statement made by appellant’s counsel. The prosecutor stated, “Let the record reflect that I was talking about the medical testimony, and Dr. Stockton, the man who took the EEG wasn’t up here testifying in Court.” If the prosecutor was attempting to show his intent or negate bad faith, his statement was not sufficient to do so. It did not contradict or conflict with appellant’s statement of what acts occurred in open court. It was itself a statement of mental processes, and therefore could not constitute a recitation to preserve in the record acts occurring in open court and visible to all. The subjective intent is irrelevant; the test is whether the argument, by words and acts, is of such a character that the jury would naturally or necessarily perceive it as a comment on the failure of the accused to testify. Because the record in this case reflects that such an argument was made, I concur in the reversal of appellant’s conviction.