# Pope v. State

> Court of Criminal Appeals of Texas · November 15, 2006 · 207 S.W.3d 352

URL: https://www.frixlaw.com/law-library/cases/9748209

## Case

- **Full name:** Curtis Wayne POPE, Jr., Appellant v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 15, 2006
- **Citations:** 207 S.W.3d 352; 2006 Tex. Crim. App. LEXIS 2235; 2006 WL 3302823
- **Precedential status:** Published
- **Opinion:** Concurrence by Johnson
- **Judges:** Cochran, Keller, Meyers, Price, Womack, Keasler, Hervey, Holcomb, Johnson
- **Cited by:** 77 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9748209

## How later opinions describe it (automated extraction)

- holding that a party may always comment on the fact that an opponent failed to call an available witness, or argue a witness was not called because testimony would be unfavorable
- stating party may always comment on fact that opponent failed to call available witness and argue witness was not called because testimony would be unfavorable
- discussing when an expert is a "testifying" expert rather than a "consulting" expert and holding that the parties to a criminal proceeding may seek information about the opposing side's testifying experts and their opinions
- noting “party may always comment on the fact that the opponent failed to call an available witness and then argue ‘Don’t you know, if Mr. X had anything favorable to say, my opponent would have called him.’”
- holding testimony that defense expert had not requested additional DNA testing did not violate the work product doctrine

## Opinion text

JOHNSON, J.,
filed a concurring opinion.
I concur' in the judgment of this Court, but not its reasoning. It is permissible to argue to the jury that the defendant did not present witnesses to contradict testimony offered by the state. It is not permissible to select a potential, but uncalled, witness such as Dr. Benjamin, tout his knowledge, experience, and standing among his colleagues and then argue, solely because the defendant did not call him as a witness (a circumstance that could have many causes), that even that eminent scholar did not dispute the state’s evidence. Such tactics constitute bolstering of the testimony of the state’s witnesses. The trial court erred in admitting such testimony and in failing to curtail the state’s argument about it. The court of appeals was correct in finding error and that the error was statutory and harmless. Tex.R.App. P. 44.2(b). I would affirm the judgment of the court of appeals and its reasoning.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748209. Public record. Not legal advice.