Floyd v. State

¶1dissenting.

¶2I respectfully dissent. TEX.CODE CRIM.PRO.ANN. art. 38.08 (Vernon 1979) specifically declares:

Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.

¶3Johnson v. State, 611 S.W.2d 649 at 650 (Tex.Cr.App.1981), states:

A prosecutor’s comment on a defendant’s failure to testify offends both our State and Federal Constitutions.... If the remark complained of called the jury’s attention to the absence of evidence that only the testimony from the appellant could supply, the conviction must be reversed....

(T)he prohibition against a comment on the defendant’s failure to testify is mandatory and the adverse effect of any reference to the accused’s failure to testify is not generally cured by an instruction to the jury.

¶4Appellant was being jointly tried for two offenses, aggravated robbery and attempted capital murder. There was a single trial, and when the prosecutor commented on appellant’s failure to testify in his own behalf 1 as to the attempted capital murder, it constituted a violation of Article 38.08, supra. I believe the jury would “naturally and necessarily take it to be a comment on the defendant’s failure to testify,” not only as to one offense but also as to the other offense which was being tried at the same time. The trial court correctly granted a new trial on the attempted capital murder case. In my judgment, the trial court should have also granted a new trial in the aggravated robbery case, and this court should reverse that conviction and remand the cause for trial.