Opinion
No. 05-08-01694-CR
Opinion issued November 5, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F08-54061-MW.
Before Justices O'NEILL, FRANCIS, and LANG.
MEMORANDUM OPINION
Marion Curtis Warren appeals his conviction for aggravated assault with a deadly weapon. After finding appellant guilty, the jury assessed punishment at eight years in prison. In a single issue, appellant claims the trial court erred in overruling his objections to statements made by the prosecutor during closing argument. We affirm the trial court's judgment. The complainant, Beatrice Adams, was seven months pregnant when she drove to the apartment complex where her sister, Latrice Moore, was living with appellant. When she got there, Adams noticed her sister had a black eye and a swollen face. Moore indicated appellant had hit her and although Adams wanted Moore to leave, appellant would not let her go. Adams called the police on her cell phone. While Adams was on the phone, Betty Roy, the women's grandmother, arrived and asked Moore what happened to her face. Roy walked upstairs, entered the apartment and when Adams tried to follow her grandmother, appellant stopped her. When the two began to fight, appellant punched Adams and pushed her up against the railing. Roy yelled at appellant to leave Adams alone because she was pregnant, and they stopped fighting. Adams had scratches and bruising from appellant's blows. Appellant then grabbed the keys to Moore's truck. Fearing appellant would leave before the police arrived, Adams ran downstairs and stood in front of the truck. Appellant pulled out a knife and asked Adams if she was "ready to die." Appellant ran away but was soon caught and arrested by police. Both Adams and Moore testified at trial; appellant did not testify nor did he call any witnesses. The jury convicted appellant of assaulting Adams with a deadly weapon. In his sole issue, appellant claims the trial court erred in overruling his objection to the prosecutor's impermissible comment on appellant's failure to testify at trial. Appellant argues he was harmed, and we must therefore reverse his conviction. A comment on a defendant's failure to testify violates the defendant's constitutional right against self-incrimination. See U. S. Const. art. V; Tex. Const. art. I, §§ 10. In determining whether the prosecutor made an impermissible comment, we view the statement "from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear." Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). "The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify." Id. We take into account the context in which the comment was made; it is not sufficient that the comment might be construed as an implied or indirect allusion. Id. At the conclusion of closing argument, the prosecutor asked the jury to find appellant "guilty of everything that he already knows," and "by doing so, it's not telling him anything he doesn't already know." These comments are not a clear reference to appellant's failure to testify, nor did they draw the jury's attention to an absence of evidence that could have been supplied only by appellant. See Brown v. State, 92 S.W.3d 655, 667 (Tex. App.-Dallas 2002), aff'd, 122 S.W.3d 794 (2003). Because the prosecutor's statements were not of such a character that the jury would necessarily and naturally take them as a comment on appellant's failure to testify, we conclude the trial court did not err in denying appellant's objection. We overrule appellant's sole issue. We affirm the trial court's judgment.