Opinion
No. 06-02-00187-CR
Date Submitted: September 17, 2003.
Date Decided: September 18, 2003. Do Not Publish.
On Appeal from the 188th Judicial District Court, Gregg County, Texas, Trial Court No. 29680-A.
Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross.
MEMORANDUM OPINION
Mondrel Jaquia Wilson appeals from his conviction for aggravated robbery. A jury convicted Wilson and assessed his punishment at fifty years' imprisonment and a $10,000.00 fine. Wilson complains on appeal that, during voir dire, the prosecutor impermissibly commented on his failure to testify. During voir dire of the venire, the prosecutor, Lance Larison, made the following comments. Another right a defendant has in a criminal case is the right to remain silent. He doesn't have to say anything. As the Judge told you, the burden always stays with the State of Texas. But even if the defense chooses to put on some evidence, the Defendant doesn't have to testify. There can be several reasons why somebody may not want to testify. They may not make a good witness for themselves. They may be guilty and they may not want to tell you. They may have prior convictions and don't want to be impeached with them. There can be several reasons why someone may not testify. But whatever the reason, the twelve of you selected to sit in this Jury Box can't hold that against him. And I know, growing up as an only child, that if something went wrong, my dad called me up in front of him and asked me about [sic]. If I was ever to have said, "Dad, I love you, but I'm going to invoke my Fifth Amendment privilege," I think the beating would have begun at that point, and I would have been presumed guilty. But, in a criminal case, you can understand why we have that right. The State is the one who's accused him of doing wrong. There's no burden on the defense. So, you cannot hold that against him. If he chooses not to testify, you can't hold it against him. By the same token, if he takes that witness stand, he's fair game. He's just like any other witness. He gets to be impeached like any other witness, cross examined like any other witness. He doesn't get any brownie points for testifying. Counsel correctly points out that prosecutorial comment that refers to an accused's failure to testify violates the accused's Fifth Amendment right against compelled self-incrimination. See Griffin v. California, 380 U.S. 609 (1965); Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001). The comment must clearly refer to the accused's failure to testify, and it is not sufficient if it "might be construed as an implied or indirect allusion." Bustamante, 48 S.W.3d at 765. 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.; Canales v. State, 98 S.W.3d 690, 695 (Tex.Crim.App. 2003). Such a comment also violates a mandatory statute. Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979). Counsel did not object to the prosecutor's commentary. In the absence of a timely objection, the claim of error is not preserved for review. Tex.R.App.P. 33.1; see Broderick v. State, 35 S.W.3d 67, 76 (Tex.App.-Texarkana 2000, pet. ref'd). Further, the objectionable comments occurred during voir dire. Several courts have held that a comment which occurs before testimony in a case has closed cannot be held to refer to a failure to testify which has not yet occurred. Graff v. State, 65 S.W.3d 730, 737 (Tex.App.-Waco 2001, pet. ref'd); Silva v. State, 989 S.W.2d 64, 67 (Tex.App.-San Antonio 1998, pet. ref'd); Reynolds v. State, 744 S.W.2d 156, 159-60 (Tex.App.-Amarillo 1987, pet. ref'd); see also McCarron v. State, 605 S.W.2d 589, 595 (Tex.Crim.App. [Panel Op.] 1980). Similarly, in Sanders v. State, 963 S.W.2d 184, 190 (Tex.App.-Corpus Christi 1998, pet. ref'd), the prosecutor, during voir dire, presented the panel with hypothetical reasons why a defendant might not want to testify (such as family loyalty, fear of drug dealers, or that he or she was guilty). Even though Sanders did not preserve error in that case, the court held that, because the statements were made during voir dire, there was no error-the defendant had not yet invoked his right. Id.; see also Campos v. State, 589 S.W.2d 424, 426 (Tex.Crim.App. [Panel Op.] 1979) (holding because prosecutor had no way of knowing whether defendant would in fact testify, no error committed by prosecution for commenting during voir dire on defendant's failure to testify). The same analysis holds true in this case. At the time the prosecutor made the comments, he could not know whether Wilson would testify; thus, his comments could not have been made about the failure. We therefore conclude in this case that, even if the claim had been preserved for review, reversible error has not been shown. Further, the prosecutor opened his discussion by explaining how a defendant has the right to remain silent and how the burden lies with the State. Here, the prosecutor's comments were only an attempt to instruct the jury on how to treat Wilson's decision to testify or not to testify. They were not direct comments on Wilson's failure to testify and could not have been under the circumstances. See Graff, 65 S.W.3d at 737. We affirm the judgment.