No. 05-06-00595-CR
Opinion Filed April 24, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 282nd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F05-41323-S .
Before Chief Justice, THOMAS and Justices, WRIGHT and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
FRANCES MALONEY, Justice, Assigned.
The jury convicted Brian Matthew Johnson of theft, found all enhancement paragraphs true, and assessed a nineteen-year sentence. In one point of error, appellant complains the trial court violated the Fifth Amendment of the United States Constitution, Article 1, section 10 of the Texas Constitution, and article 38.08 of the Texas Code of Criminal Procedure by denying appellant's objection to the prosecutor's comment on appellant's failure to testify. We affirm the trial court's judgment.
The indictment alleged that appellant appropriated less than $1500 worth of another's property or alternatively appropriated $1500 worth of another's property knowing the property was stolen as well as two prior thefts and two prior felony conviction for possession of a controlled substance.
BACKGROUND
The complainant loaded all his personal belongings and equipment for installing satellite dishes into his Ford Explorer. When he arrived at the customer's house, he left his keys in the Explorer, didn't lock its doors, and went into the customer's house for a few minutes. As he walked out of the house, he saw a man driving his Explorer away. Later that same day, appellant pawned some property that complainant had left in his Explorer. During the State's argument at guilt/innocence, the prosecutor argued as follows: Now he stole it. But[,] for some reason, if anybody has any residual doubt about that, let's look at the rest of the circumstances. I mean, less than one hour later, a car that was found abandoned less than a mile from the pawn shop, less than one hour later, this guy show up sweaty, paranoid, nervous with a radar detector and the batteries and the charger. I mean, and — and the pawn shop guy said this himself. What did he say? "Well, if you're sitting outside that pawn shop and somebody comes up to you and says, 'will you pawn this for me,' — would you think it might be stolen["]?? What did he say? "Well absolutely." Of course, he can't just play dumb and say, "oh, you'll you [sic] could never." We can't go into his head, folks. That's why you in — you're allowed to infer intent, like the handshake example Ms. Ward did. You can infer his intent, his knowledge. If you're standing outside a pawn shop and somebody walks up to you with some property and says, "I'll give you twenty dollars," which by the way, there is no evidence of that; nobody came forward. They want you to speculate. They want you to take a flying leap of faith. Nobody came up here and said, "Yeah, I saw somebody trying to give him some stuff" or "Yeah, it was me" or anything like that. You heard nothing that that is true. They raised it just — is true. They raised it just-. Appellant interrupted the State's argument by objecting to the State "commenting on my client's Fifth Amendment right. FIFTH AMENDMENT
Appellant argues that the State's argument in the guilt/innocence was a comment on appellant's failure to testify. He complains that this argument faulted appellant for not bringing "evidence that the real thief paid [appellant] to pawn the stolen property." Appellant maintains that the comment either directly or indirectly referred to evidence to which only appellant could testify. The State responds that it made this comment in summing up the evidence and responding to appellant's closing argument. 1. Standard of Review
In determining whether the State impermissibly commented on an appellant's right to remain silent, we view the State's argument "from the jury's standpoint" and decide whether the jury would naturally take that statement as a comment on appellant's decision not to testify. Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001). An implied or indirect allusion does not comment on the appellant's right to remain silent. See Canales v. State, 98 S.W.3d 690, 695 (Tex.Crim.App. 2003). 2. Applicable Law
Permissible jury argument includes (1) summarizing the evidence, (2) reasonably deducing from the evidence, (3) answering opposing counsel's argument, (4) pleading for law enforcement. See Bigby v. State, 892 S.W.2d 864, 889 (Tex.Crim.App. 1994). Commenting on an accused's failure to testify violates the accused's federal and state constitutional rights, as well as Texas law. See Tex. Code Crim. Proc. Ann. Art. 38.08 (Vernon 2005). 3. Application of Law to Facts
Appellant did not testify and brought no witnesses to testify. However, in cross examining the pawn shop clerk, appellant questioned whether people hung out behind the pawn shop and if "someone" could offer to pay someone else to pawn their goods. On this basis, appellant argued that no direct evidence existed to show that appellant either committed theft or received and concealed stolen property. He questioned why the State did not charge appellant with theft of the Explorer or the other items missing from the Explorer. Additionally, he argued that the complainant made a "cross-cultural identification" mistake and really didn't see the thief's face. Rather, the complainant's leaving his Explorer running or his keys on the floor caused him embarrassment and influenced his testimony. In general, appellant's closing argument attacked the credibility of the complaining witness. The State answered appellant's closing argument with the complained-of argument. After the trial court overruled appellant's objection, the State never again referred to the lack of evidence to support appellant's argument. Rather, the State reminded the jury that although the complainant could not identify appellant in a photographic line-up, he picked out two photographs that looked like the man who drove off in his Explorer, one of whom was appellant. The State emphasized the complainant's in-court identification of appellant as the man who drove off in his Explorer. The State argued appellant pawned items from the Explorer less than an hour after the Explorer was stolen and the police found the stripped, abandoned Explorer less than a mile from the pawn shop. The State then reminded the jury that they should consider the charge, the credible evidence, and appellant's record-both his convictions and at the pawn shop. The State's language did not directly or indirectly comment on appellant's failure to testify. We overrule appellant's point of error. We affirm the trial court's judgement.