When evidence is admissible, no error occurs when the prosecution refers to that evidence during opening statements. SeeWatts v. State, 630 S.W.2d 737, 738 (Tex.App.–Houston [1st Dist.] 1982, no pet.) (stating that because complainant could permissibly testify to identification of defendant in pre-trial photo array and line up, prosecution could permissibly refer to such during opening statement). Code of Criminal Procedure article 38.37, section 1(b) provides, in aggravated sexual assault of a child cases:
Appellant claims this comment was an indirect reference to his failure to testify in that it called for a denial of facts that only the appellant was in a position to offer. Dubose v. State, 531 S.W.2d 330 (Tex.Crim.App. 1975); Watts v. State, 630 S.W.2d 737, 739 (Tex.Civ.App. — Houston [1st Dist.] 1982, no pet.). To say that a prosecutor's argument amounts to a comment on the defendant's failure to testify, the statement must be viewed from the jury's perspective and the implication that it referred to the defendant's failure to testify must be a necessary one.
During its opening statement, the State may properly set out what it expects to prove, even if the State does not introduce supporting evidence at trial. See Marini v. State, 593 S.W.2d 709, 715 (Tex.Crim.App. 1980); Watts v. State, 630 S.W.2d 737, 738-39 (Tex.App. — Houston [1st Dist.] 1982, no pet.) (not reversible error that mug shot or composite drawing not admitted at trial even though mentioned in State's opening statement where defendant vigorously opposed their admission and the trial court agreed); TEX.CODE CRIM.P. art. 36.01(a)(3) (Vernon Supp. 1994). We also note that during their deliberations, the jurors sent out a request asking to see "A copy of the opening statement by the prosecution regarding 'the watch.' "
TEX.CODE CRIM.PROC.ANN. art. 36.01(a)(3) (Vernon Supp. 1993).See Watts v. State, 630 S.W.2d 737, 738 (Tex.App. — Houston [1st Dist.] 1982, no pet.).See Alejandro, 493 S.W.2d at 231.
In applying this test, facts and circumstances of each case must be analyzed to determine whether language used was of such character. In Watts v. State, 630 S.W.2d 737, 739 (Tex.App. — Houston [1st Dist.] 1982, no writ), the court held that where the State's argument can be reasonably construed as referring to the accused's failure to produce other testimony than his own, it is not improper. This is the nature of the subject remarks by the prosecutor when he referred to ". . . his friends and neighbors or his family. . . ."