The opinion
WHITTINGTON, Justice,
dissenting.
I respectfully dissent.
In closing argument, defense counsel commented to the jury that the State’s proof never disclosed that the robber had a gold tooth:
*481 One other thing, he’s got a gold tooth right here....
That’s natural to him, now. I mean, if he’s talking to someone or whatever, you know that tooth is going to be showing. It’s not something where he’s going to be talking and saying, yes, we’re just here to dive in.... No, he talked to that woman. He was giving orders. Can you imagine, on the other side, if that woman had said the man had a gold tooth, they would have crammed that down our throats so far it would not be funny. Surprise, surprise, guess who’s got a gold tooth, Mr. Manasco. Give us the same consideration. He’s got a gold tooth and not one person said anything about it. (Emphasis added.)
The State then responded to the defense counsel’s rhetorical challenge as follows:
Now, the Defendant Brown, after he jumped over the counter, made some statement, ‘Show me where the safe is,’ ‘Stop jacking around,’ things of that nature, and the Defense wants you to believe that, well, they didn’t see a gold tooth. Nobody got up here on the stand and told you that his client, the Defendant Brown, had a gold tooth and, therefore, it must not have been him. Well, we don’t know what he sounds like when he talks. We know he has a gold tooth. Big deal.
I view the State’s comments in closing argument acknowledging that Brown had a gold tooth and that there was no identification of Brown’s voice as reasonable deductions made from the evidence and as appropriate responses to the arguments of opposing counsel. See Whiting v. State, 797 S.W.2d 45, 48 (Tex.Crim.App.1990); Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973). Viewing the words from the jury’s standpoint, I do not find the language a comment on Brown’s failure to testify. See Madden v. State, 799 S.W.2d 683, 699-700 (Tex.Crim.App.1990). “A mere implication or indirect allusion to a defendant’s failure to testify will not result in reversible error.” Stoker v. State, 788 S.W.2d 1, 17 (Tex.Crim.App.1989) cert. denied, — U.S. —, 111 S.Ct. 371 , 112 L.Ed.2d 333 (1990). Additionally, the language did not call the jury’s attention to the absence of evidence that only Brown’s testimony could supply. See Madden, 799 S.W.2d at 699 .
Rather than being a direct comment on Brown’s failure to testify, the comment was made in a summation of evidence regarding identity. Brown had a gold tooth that the complainant did not mention when identifying Brown. A gold tooth is a physical characteristic that can be an identifying tool. See McQueen v. State, 627 S.W.2d 757, 758 (Tex.App.—Waco 1981, no pet.). I would analogize references to Brown’s tooth to a tattoo or a scar. A defendant can even be ordered to uncover a tattoo on his body. DeLeon v. State, 758 S.W.2d 621, 625 (Tex.App.—Houston [14th Dist.] 1988, no pet.).
“It is well settled that the prosecutor may answer jury argument by opposing counsel so long as the response does not exceed the scope of the invitation.” Lopez v. State, 793 S.W.2d 738, 742 (Tex.App.—Austin 1990) review dism'd as improvidently granted, 810 S.W.2d 401 (Tex.Crim.App. 1991). The invitation may even properly include a comment on the defendant’s failure to testify. Lopez, 793 S.W.2d at 742 .
The reference to what Brown “sounds like” was a response to the defense counsel’s evidence. Defense counsel had stressed that Brown’s gold tooth was an identifying factor. Two defense witnesses, Brown’s sister and his mother, testified that Brown was very proud of his gold tooth, which he had received for his sixteenth birthday. After questioning Brown’s mother, the defense counsel got permission “to allow my client to stand and open his mouth just so the jury can see that he does, in fact, have a gold tooth.” Brown then stood before the jury, opened his mouth, and displayed his gold tooth for all to see.
I do not consider these statements to exceed the scope of the defense counsel’s *482 invitation. The State stayed within the record in responding to the defense witnesses’ information about Brown’s having a gold tooth and the reference to “what he sounds like when he talks” must be considered in that context.
Even if the comments were error, I consider the error to have been harmless under rule 81(b)(2) of the Texas Rules of Appellate Procedure. Tex.R.App.P. 81(b)(2); Madden, 799 S.W.2d at 700 . A full review of the record discloses that the State was not intentionally attempting to taint the trial process with improper argument. The State made only a passing reference to what Brown sounded like when he talked. It made the remark in response to testimony presented by Brown’s mother and sister regarding the gold tooth and the defense that Brown did not rob the store because the complainant never mentioned that the robber had a gold tooth. Defense counsel himself described Brown’s talking to the complainant and asked the jury to consider the fact that Brown’s tooth would be showing when he is talking. Defense counsel himself focused the jury’s attention on Brown’s failure to testify, if such occurred at all.
After the judge sustained the objection to the State’s argument, he admonished the jury to disregard the statement. Since the State did not emphasize or reinforce its comment about not knowing how Brown sounded, the statement’s impact on the jury was minimal. Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989). The general reference did not attempt to call the jury’s attention to the absence of evidence that only Brown could supply, because Brown’s mother and sister had already supplied evidence that Brown had a gold tooth. The State was focusing not on Brown’s failure to testify, but on the circumstance of his having a gold tooth that could have been seen and remembered when he said, “Show me where the safe is, stop jacking around.” Affirming the judgment would not encourage the State to repeat its actions with impunity. Harris, 790 S.W.2d at 589 . Accordingly, I would affirm the trial court’s judgment.