Summary
holding that failure to object to prosecutor's comment on defendant's failure to testify preserved nothing for appellate review
Summary of this case from Berrett v. StateOpinion
No. 038-82.
March 31, 1982.
Appeal from the Criminal District Court No. 5, Dallas County, James K. Allen, J.
Kerry P. Fitzgerald, Dallas, for appellant.
Henry M. Wade, Dist. Atty., Stanley Keeton, Rider Scott and Todd Meier, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
This is an appeal from a conviction for the offense of aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. Punishment, enhanced under the provisions of V.T.C.A. Penal Code, Sec. 12.42(d), was automatically assessed at imprisonment in the Texas Department of Corrections for life. The Court of Appeals affirmed. Johnson v. State, 630 S.W. 291, (opinion delivered December 30, 1981). Appellant filed no motion for rehearing in the Court of Appeals.
In his petition for discretionary review, appellant contends that the prosecutor committed fundamental error in his argument to the jury when he directly alluded to the appellant's failure to testify. The Court of Appeals concluded that the complained of argument did not constitute a comment on appellant's failure to testify. A concurring opinion, filed by Associate Justice John Vance, concluded that the complained of argument was necessarily a reference to appellant's failure to testify. However, the concurring Justice noted that the appellant did not specifically object to the prosecutor's comment. Therefore, nothing was presented for review.
We have examined the record on appeal and agree with the concurring opinion. On the basis of the concurring opinion, we find that this case does not warrant the exercise of our discretionary jurisdiction. Appellant's petition for discretionary review is refused.
Although I acknowledge that the majority is correct in refusing discretionary review in this case, I cannot agree that the concurring opinion of the Court of Appeals is the correct disposition. Believing that the majority of the panel of the Court of Appeals is correct in holding that the complained of argument was not a comment on the appellant's failure to testify, I concur in the refusal to grant appellant's petition for discretionary review.