Burney v. State

DIES, Chief Justice,

dissenting.

I respectfully dissent for the following reasons.

Where not invited, the prosecutor has no business emphasizing to the jury that his argument is not to be taken by them (the jury) as a comment on the defendant’s failure to testify. This is just a roundabout way of making such a comment. In the case at bar, as set forth in the majority opinion, the prosecutor three times made such an argument to the jury. To this writer, this clearly violates the spirit of TEX. CONST. art. I, sec. 10; TEXCODE CRIM.PROC.ANN. art. 38.08 (Vernon 1979); Myers v. State, 573 S.W.2d 19 (Tex.Crim.App.1978), and the authorities cited therein.

In the TEX. CONST art. I, sec. 10, interp. commentary (Vernon 1984), we find, at 443:

“In declaring that the accused shall not be compelled to give evidence against himself, the Constitution guarantees immunity from self-incrimination. Such immunity is granted to prevent repetition of certain inquisitorial proceedings once practiced in England. The principle is hereby established that no one shall be compelled to give testimony which may expose him to prosecution for crimes. Hence, an accused cannot be required to take the stand himself, nor can he be forced to testify. His failure to do so cannot be taken as a circumstance against him and counsel are not permitted to comment thereon. Unless he voluntarily becomes a witness, he is completely immune from inquiry_” (emphasis supplied)

This is not a “technicality” but a bedrock of our conviction. Unless and until the appellate courts speak out clearly and positively rejecting this “negative” way of getting the condemned comment before the jury, some prosecutors will continue to use it. See Nordyke v. State, 682 S.W.2d 589 (Tex.App.—Beaumont, 1984), petition for discretionary review filed Oct. 17, 1984.

This is an erosion we should not tolerate. I would reverse this case and remand it for a new trial.