Cook v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

We granted appellant’s petition for discretionary review to consider whether the prosecutor commented on the appellant’s failure to testify during his argument at the guilt-innocence phase of the trial. The record shows that the prosecutor made the following argument:

“MR. McSPADDEN: During voir dire I told you at that time that I would find out what the defense is the same time you find out, and A., I told you first of all there are several defenses we usually heard. A., would be mistaken identity. They couldn’t do that because everybody identified him. B., using the alibi. Someone else, because, 7 was somewhere else. I’ve got my alibi, because I was playing poker with the guys.’ It wasn’t that. Again, because all of the evidence involved. C., consent. There was no affirmative consent shown as to what happened during the attack. Only innuendoes and suppositions about what may have happened.” (Emphasis added)

The Court of Appeals, 650 S.W.2d 436, found that there was no error in the argument because normally witnesses other than the defendant usually testify to these defenses. The reasoning of the Court of Appeals directly conflicts with the holding of this Court in Cherry v. State, 507 S.W.2d 549 (Tex.Cr.App.1974). In Cherry, the prosecutor argued as follows:

“Now what defenses are available to a person in a case like this? Number one, alibi, I was somewhere else, I was with someone else.” (Emphasis added). Cherry v. State, 507 S.W.2d at 550.

This Court found in Cherry v. State, supra, that the prosecutor’s use of the word “I” contradicted any theory that he was referring to witnesses other than the defendant.

In order to constitute a violation of Article 38.08, Y.A.C.C.P., the language 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. Banks v. State, 643 S.W.2d 129 (Tex.Cr.App.1982); Angel v. State, 627 S.W.2d 424 (Tex.Cr.App.1982); Johnson v. State, 611 S.W.2d 649 (Tex.Cr.App.1981); Griffin v. State, 554 S.W.2d 688 (Tex.Cr.App.1977). The challenged comment must be viewed from the standpoint of the jury and the language must be more than an implied or indirect allusion to the defendant’s silence. Angel v. State, supra; Bird v. State, 527 S.W.2d 891 (Tex.Cr.App.1975); Anderson v. State, 525 S.W.2d 20 (Tex.Cr.App.1975).

This latter precept is most important in the case at bar. The Court of Appeals disposed of this ground of error by noting that it is usual for someone other than the defendant to urge these defenses. Unfortunately, we believe that the average jury is not aware of what is usually done in criminal cases. Thus, we must examine the prosecutor’s argument strictly from the standpoint of a lay person serving on a jury. When the word “I” is used in reference to something the defendant might have testified to, but did not, it is illogical to think that the jury is not reminded of the defendant’s failure to testify. This is a classic example of what Article 38.08 was trying to prevent. We follow the reasoning in Cherry v. State, supra, and find that the prosecutor’s argument was an impermissible comment on the defendant’s failure to testify.

The judgments of the Court of Appeals and the trial court are reversed and the case is remanded for a new trial.