Barrington J. Thompson v. State ( 2012 )

Dissenting opinion issued November 8, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00350-CR
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BARRINGTON THOMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case No. 1290502
DISSENTING OPINION
Although I agree that the trial court erred in overruling Mr. Thompson’s
objection to the State’s closing argument, I disagree that the error was harmless
and, because I would reverse and remand on that basis, I respectfully dissent.
Constitutional harm analysis under Snowden requires us to take every
circumstance apparent in the record that logically informs our constitutional error
analysis into account. See Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim.
App. 2011). Here, those circumstances dovetail with the remaining Harris factors
that the Snowden court deemed appropriate for appellate consideration. Snowden,
353 S.W.3d at 821–22 (discussing Harris v. State, 790 S.W.2d 568, 587–88 (Tex.
Crim. App. 1989)).
Although the State’s comment on Thompson’s failure to testify was indirect,
made with no apparent animus, and possibly mitigated by the jury instructions, it
nevertheless emphasized to the jury Mr. Thompson’s failure to testify on a topic
that he alone was in a position to know: his intent. After the court overruled
Thompson’s objection, although the prosecutor stepped it back from Mr.
Thompson’s failure to testify, he continued to keep the jury’s focus upon this issue
of Thompson’s intent by then urging the jurors to look to the circumstantial
evidence for proof of intent.
As to the weight a juror might place upon the error, I would note that the
trial testimony revealed that only two persons were present at the time of the
offense: Officer Ayala and Thompson. Ayala, the State’s lone witness, was the
sole source of the State’s evidence. His testimony as to the facts of his encounter
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with Thompson was the only circumstantial evidence from which the jury could
infer intent. The prosecutor’s comment on Thompson’s failure to testify
emphasized for the jury Thompson’s failure to testify as to his intent—a topic that
only Thompson was in a position to know. Because the trial court overruled
Thompson’s objection, no curative instructions were given. Under these facts, it is
quite possible that a juror accorded some weight to the prosecutor’s improper
statement. See Crocker v. State, 248 S.W.3d 299, 307 (Tex. App.—Houston [1st]
2007, pet. ref’d) (applying fifth Harris factor).
Having evaluated the record in a neutral, impartial, and even-handed manner
and taking into account every circumstance apparent in the record that logically
informs this Court’s constitutional error analysis, I cannot say, beyond a reasonable
doubt that the error did not contribute to Thompson’s conviction. See TEX. R. APP.
P. 44.2(a); Snowden, 353 S.W.3d at 821–22; Harris, 790 S.W.2d at 586.
Accordingly, I would sustain Thompson’s second issue and reverse and
remand for further proceedings.
Jim Sharp
Justice
Panel consists of Justices Higley, Sharp, and Huddle.
Justice Sharp, dissenting.
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