Nickens v. State

¶1OPINION ON APPELLANT’S MOTION FOR REHEARING

¶2This appeal is from a conviction for rape of a child with appellant’s punishment assessed at twelve (12) years’ imprisonment. Our prior opinion 576 S.W.2.d 91 (Tex.Cr.App.) is withdrawn. By per curiam opinion, *102on January 17, 1979, we overruled appellant’s contention that the prosecutor’s jury argument constituted a comment on appellant’s failure to testify, because the comment did not necessarily refer to appellant. Upon re-examination of the evidence adduced at trial, we conclude that we were in error.

¶3The prosecutrix, appellant’s 13-year-old daughter, was living with appellant and his second wife, Jeannie. She testified that on the date of the offense, Jeannie came to her bedroom and told her to go into appellant’s bedroom. The prosecutrix testified that she did so, and that after she did, her father started “bothering” her and thereafter had sexual intercourse with her.

¶4At trial, only two other witnesses testified besides the prosecutrix. Police Officer Dana Franklin testified that he had a conversation with the prosecutrix’s sister and that he arrested appellant. Antoinette Hernandez, Deputy District Clerk, testified concerning the date which the indictment was filed. This was the sum total of the State’s case against appellant. Appellant presented no evidence whatsoever.

¶5During his argument to the jury at the guilt or innocence phase of the trial, the prosecutor argued that the prosecutrix was worthy of belief, and stated:

“. . . Now ask yourself that, what does that little girl have to gain or lose by coming in here and telling you a lie? Now, she didn’t have to do it. What does she have to gain or lose? Can you think of anything? She is no longer staying with her father any more. She wants to go back to her mother and she is already there. What reason did she have to tell this jury anything but the truth?

I said I’d ask for a little understanding. Now, ladies and gentlemen, there are only two real witnesses to this case. The little girl came in here and told you what happened. There is no other witness to it. Either you believe her—

MR. BRAUCHLE (defense counsel): We object to this argument by the State’s Attorney in that it goes to the Defendant’s failure, to testify.

THE COURT: The Court has instructed the jury in its charge that they will not consider that for any purpose whatsoever of any evidence. I do not take it that that is what Counsel has in mind in his argument, Counsel.

MR. BRAUCHLE: Is our objection overruled?

THE COURT: Overruled.”

¶6(Emphasis added)

¶7A prosecutor’s comment on a defendant’s failure to testify offends both our State and Federal Constitutions as well as Article 38.-08, Vernon’s Ann.C.C.P. Pollard v. State, 552 S.W.2d 475 (Tex.Cr.App.1977); Bird v. State, 527 S.W.2d 891 (Tex.Cr.App.1975). The language of such a comment must be either manifestly intended, or of such a character that the jury would naturally and necessarily take it to be a comment on the defendant’s failure to testify. Griffin v. State, 554 S.W.2d 688 (Tex.Cr.App.1977); Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975); McDaniel v. State, 524 S.W.2d 68 (Tex.Cr.App.1975). The implication that the language used has reference to the appellant must be a necessary one in order for this Court to hold that the statement was a comment on the defendant’s failure to testify. For an indirect comment such as this to constitute reversible error, it must call for a denial of an assertion of fact or contradictory evidence that only the defendant is in a position to offer. See Griffin v. State, supra; Hicks v. State, supra; Koller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975); Nowlin v. State, 507 S.W.2d 534 (Tex.Cr.App.1974).

¶8In the instant case, the record reflects only two witnesses to the offense: the pros-ecutrix and appellant. The prosecutrix testified; appellant did not. There is no testimony that Jeannie, appellant’s wife, was present or nearby during the commission of the offense, nor is there any testimony from which we might infer that she was. The only mention at trial of a third person was that Jeannie came and got the prosecutrix and told her to go to her father’s bedroom. Given this state of the record, we can only *103conclude that the comment by the prosecutor was necessarily a reference to appellant’s failure to testify. Thus, the trial court erred in overruling appellant’s objection. Such error requires reversal. See Bird v. State, supra; Hicks v. State, supra; McDaniel v. State, supra; Koller v. State, supra.

¶9Appellant’s motion for rehearing is granted; the judgment is reversed and the cause remanded.

¶10OPINION ON STATE’S MOTION FOR REHEARING

¶11The State in its motion for rehearing urges that the complained of jury argument was invited. Attention is called to the argument of appellant’s counsel that the State had not called the prosecutrix’s natural mother who could have corroborated the prosecutrix by testifying that the prosecu-trix had reported the matter “back in November,” that there was no medical evidence to show the prosecutrix was not a virgin, that the only evidence heard was from a fourteen year old girl, that while a conviction could be had on the testimony of one witness that witness had to be a believable witness, that the State had failed to prove its case. “They haven’t brought you any of these people to show you that these events actually happened.”

¶12In response to such argument that the state was relying on one witness and she was not credible, the prosecutor told the jury that appellant’s counsel was correct, he (the prosecutor) had not called the girl’s mother and had not offered medical testimony because a doctor could not say for sure whether anyone was a virgin or not. He then argued:

“Now, it comes down, ladies and gentlemen — I’m really about finished — to this: What does that little girl have to gain by lying about what her father did to her? This really is the most important thing you have to consider. What does she gain by telling the Police Department about what happened and coming in here and telling you about it? Does she get out of the house by doing it? Well, the Officer testified that Dugan over here was already in jail. Is that what she gets from it? Why would she have any reason to come down here and tell you a lie about what happened out there? Now, ask yourself that, what does that little girl have to gain or lose by coming in here and telling you a lie? Now, she didn’t have to do it. What does she have to gain or lose? Can you think of anything? She is no longer staying with her father any more. She wants to go back to her mother and she is already there. What reason did she have to tell this Jury anything but the truth?

“I said I’d ask for a little understanding. Now, ladies and gentlemen, there are only two real witnesses to this case. The little girl came in here and told you what happened. There is no other witness to it. Either you believe her—

“MR. BRAUCHLE (Defense Counsel): We object to this argument by the State’s Attorney in that it goes to Defendant’s failure to testify.

“THE COURT: Approach the bench, Counsel.

“(Whereupon, an off-the-record discussion was held at the bench out of the hearing of the Court Reporter and Jury.)

“MR. BRAUCHLE: Your Honor, we would object to the State’s argument in that it goes to the Defendant’s failure to testify.

“THE COURT: The Court has instructed the Jury in its charge that they will not consider that for any purpose whatsoever of any evidence. I do not take it that that is what Counsel has in mind in his argument, Counsel.

“MR. BRAUCHLE: Is our objection overruled?

“THE COURT: Overruled.

“MR. BRAUCHLE: Note our exception.

*104“MR. HUFF (Prosecutor): The issue before you is whether you’re going to believe it or disbelieve it. I tell you, and it is a reasonable deduction from the evidence, that that little girl came in here and told you the truth the way she saw it.”

¶13It is basic and fundamental law in this State that the failure of an accused to testify may not be the subject of comment by the prosecution. Such comment is in violation of the privilege against self-incrimination contained in Article I, § 10 of the Texas Constitution, and in express violation of Article 38.08, V.A.C.C.P. Bird v. State, 527 S.W.2d 891, 893 (Tex.Cr.App.1975), and cases there cited.

¶14Further, a comment on an accused’s failure to testify also presents a federal constitutional question as the same has been held violative of the self-incrimination clause of the Fifth Amendment, which is made applicable to the states by virtue of the Fourteenth Amendment. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1965); Fontaine v. California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968).

¶15It is also well settled in this state that for the argument or comment to offend against the statute (Article 38.08, supra) the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the accused’s failure to testify must be a necessary one. Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975). It is not sufficient that language might be construed as an implied or indirect allusion thereto. Bird v. State, supra, and cases there cited; Pollard v. State, 552 S.W.2d 475 (Tex.Cr.App.1977).

¶16The test employed is 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. See Bird v. State, supra, and cases cited. In applying this test, the facts and circumstances of each case must be analyzed to determine whether the language used was of such character. Overstreet v. State, 470 S.W.2d 653 (Tex.Cr.App.1971); Ramos v. State, 419 S.W.2d 359 (Tex.Cr.App.1967).

¶17The appellant argued the State was relying for conviction upon the testimony of one witness who was not believable. The State responded to such argument during the course of which the prosecutor made the complained of argument, which was interrupted in mid-sentence and never finished. Taken in the context in which it was made, the language used was not manifestly intended or of such character that the jury would naturally and necessarily take it to be a comment on the accused’s failure to testify.1 The trial judge who heard the argument stated in the jury’s presence he did not take it as a comment on the accused’s failure to testify and noted he had instructed the jury that they were not to consider the appellant’s failure to testify for any purpose. While it may have been better for the trial judge to have sustained the objection and instructed the jury to disregard the argument, we cannot agree, under the circumstances of this case, that reversible error was committed. This case was properly disposed of by the original panel opinion. The State’s motion for rehearing is granted, the judgment of reversal is set aside, and the judgment is affirmed.

¶19dissenting.

¶20I concur in the dissenting opinion of Judge Clinton, and agree that the argument of the prosecutor was not invited. I remain convinced of the soundness of my position that the prosecutor’s comment on appellant’s failure to testify is reversible error.

¶21The prosecutrix, appellant’s 13-year-old daughter, was living with appellant and his *105second wife, Jeannie. She testified that on the date of the offense, Jeannie came to her bedroom and told her to go into appellant’s bedroom. The prosecutrix testified that she did so, and that after she did, her father started “bothering” her and thereafter had sexual intercourse with her.

¶22At trial, only two other witnesses testified besides the prosecutrix. Police Officer Dana Franklin testified that he had a conversation with the prosecutrix’s sister and that he arrested appellant. Antoinette Hernandez, Deputy District Clerk, testified concerning the date which the indictment was filed. This was the sum total of the State’s case against appellant. Appellant presented no evidence whatsoever.

¶23During his argument to the jury at the guilt or innocence phase of the trial, the prosecutor argued that the prosecutrix was worthy of belief, and stated:

“. . . Now ask yourself that, what does that little girl have to gain or lose by coming in here and telling you a lie? Now, she didn’t have to do it. What does she have to gain or lose? Can you think of anything? She is no longer staying with her father any more. She wants to go back to her mother and she is already there. What reason did she have to tell this jury anything but the truth?

I said I’d ask for a little understanding. Now, ladies and gentlemen, there are only two real witnesses to this case. The little girl came in here and told you what happened. There is no other witness to it. Either you believe her —

MR. BRAUCHLE (defense counsel): We object to this argument by the State’s Attorney in that it goes to the Defendant’s failure to testify.

* ⅜ …

THE COURT: The Court has instructed the jury in its charge that they will not consider that for any purpose whatsoever of any evidence. I do not take it that that is what Counsel has in mind in his argument, Counsel.

MR. BRAUCHLE: Is our objection overruled?

THE COURT: Overruled.”

¶24(Emphasis added)

¶25A prosecutor’s comment on a defendant’s failure to testify offends both our State and Federal Constitutions as well as Article 38.-08, Vernon’s Ann.C.C.P. Pollard v. State, 552 S.W.2d 475 (Tex.Cr.App.1977); Bird v. State, 527 S.W.2d 891 (Tex.Cr.App.1975). The language of such a comment must be either manifestly intended, or of such a character that the jury would naturally and necessarily take it to be a comment on the defendant’s failure to testify. Griffin v. State, 554 S.W.2d 688 (Tex.Cr.App.1977); Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975); McDaniel v. State, 524 S.W.2d 68 (Tex.Cr.App.1975). The implication that the language used has reference to the appellant must be a necessary one in order for this Court to hold that the statement was a comment on the defendant’s failure to testify. For an indirect comment such as this to constitute reversible error, it must call for a denial of an assertion of fact or contradictory evidence that only the defendant is in a position to offer. See Griffin v. State, supra; Hicks v. State, supra; Koller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975); Nowlin v. State, 507 S.W.2d 534 (Tex.Cr.App.1974).

¶26In the instant case, .the record reflects only two witnesses to the offense: the pros-ecutrix and appellant. The prosecutrix testified; appellant did not. There is no testimony that Jeannie, appellant’s wife, was present or nearby during the commission of the offense, nor is there any testimony from which we might infer that she was. The only mention at trial of a third person was that Jeannie came and got the prosecutrix and told her to go to her father’s bedroom. Given this state of the record, we can only conclude that the comment by the prosecutor was necessarily a reference to appellant’s failure to testify. Thus, the trial court erred in overruling appellant’s objection. Since the error was not invited, such error requires reversal. See Bird v. State, supra; Hicks v. State, supra; McDaniel v. State, supra; Koller v. State, supra.

¶27*106The State’s motion for rehearing should be overruled and the judgment should be reversed and remanded. I dissent.