Opinion
No. 05-07-01080-CR
Opinion issued August 21, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause No. F03-34281-RN.
Before Justices BRIDGES, FITZGERALD, and LANG.
OPINION
Appellant Joaquin Castro Gomez appeals his aggravated sexual assault conviction. In his first three issues, appellant argues the trial prosecutor impermissibly commented on appellant's failure to testify in violation of the United States Constitution, Constitution of the State of Texas, and the code of criminal procedure. In his fourth issue, appellant contends the trial court erred in overruling defense counsel's objection to the prosecutor's characterization of appellant as a "savage." We reverse the judgment of the trial court and remand the case for a new trial.
Background
Juana Felano, the complainant in this case, testified that she was home in her apartment when a man came to her door and asked about insects in her apartment. As she was showing him the infestation, the man locked her door, held a knife to her throat, demanded money and told her "this is an assault." He then forced her into her bedroom where he took her to the bed, removed her pants and underwear, and, without her consent, penetrated her vagina with his penis. The complainant gave a description of her attacker to the police. She viewed a photographic lineup and identified appellant as the man who sexually assaulted her. The complainant underwent a subsequent rape test where a number of items were collected for DNA testing. DNA analysis later "matched" appellant's DNA to seminal fluid and spermatozoa collected during the complainant's rape examination. During the voir dire stage of appellant's trial, the State discussed appellant's right to remain silent as follows:You know the defendant is not required — — he doesn't have to testify in trial. Right? Does everyone know that? The law says he doesn't have to do anything but show up here today. So you can't hold it against him if he doesn't testify. So you may not hear two different stories. Or if he chooses to testify, he may.
. . .
Can everyone promise me that if he were to choose to testify that you would treat him the same as any other witness? And what I mean by that is until he starts talking he has to be treated the same as any other witness. Then when the witness starts talking, whether it's the defendant or a witness for the State, once they start talking, then you begin to judge their credibility. But it's not until they open their mouths and you begin hearing what they're saying. Can everyone promise me that they will do that? Sometimes — — a defendant doesn't have to, but sometimes they choose to present a defense in these sort of cases. . . .Appellant opted not to testify at trial. During the State's closing argument to the jury in the guilt/innocence phase of appellant's trial, the prosecutor remarked:
There is [sic] only two people who can tell you what happened in that room that day, and one of them does not have to testify.
[DEFENSE COUNSEL]: Objection. Improper comment on the right to remain silent, Your Honor.
THE COURT: Overruled.
[THE STATE]: Ms. Felano got up there and she told you exactly what happened back on October 7, 2002. That's why I'm going to remind you of the promise that you also made in jury selection . . . that if the State proved to you everything that we were required to prove to you and we only did it through the testimony of the victim that you would return a verdict of guilty. . . . Folks, we didn't have a confession here, but we had some talking that was done; and it was the science. The DNA did all of the talking for you along with Ms. Juana Felano. . . .(emphasis added). The jury convicted defendant of aggravated sexual assault and this appeal ensued.
Analysis
We discuss appellant's first three issues together. In his first three issues, appellant argues the State impermissibly commented on appellant's failure to testify in violation of the United States Constitution, Constitution of the State of Texas, and the code of criminal procedure. See U.S. CONST. amends. V and XIV; TEX. CONST. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2008) (a defendant need not testify and his failure to testify shall not be alluded to or commented on by counsel). The prohibition against a direct comment on the accused's failure to testify is mandatory. Tovar v. State, 777 S.W.2d 481, 489 (Tex. App.-Corpus Christi 1989, pet. ref'd). To violate the right against self-incrimination, the offending language must be viewed 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); Swallow v. State 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). 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. Bustamante, 48 S.W.3d at 765; Lipscomb v. State, 467 S.W.2d 417, 420-21 (Tex. Crim. App. 1971). In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character. Cruz v. State, 225 S.W.3d 546, 549 (Tex. Crim. App. 2007); Bustamante, 48 S.W.3d at 765. If the remark complained of called the jury's attention to the absence of evidence that only the testimony from appellant could supply, the conviction is subject to reversal. Garret v. State, 632 S.W.2d 350, 353 (Tex. Crim. App. 1982); Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. 1981) (citing Myers v. State, 573 S.W.2d 19 (Tex. Crim. App. 1978)). During the argument in question, the prosecutor stated, "There is [sic] only two people who can tell you what happened in that room that day, and one of them does not have to testify." (emphasis added). After the trial court overruled defense counsel's objection, the prosecutor continued:Ms. Felano got up there and she told you exactly what happened back on October 7, 2002. That's why I'm going to remind you of the promise that you also made in jury selection . . . that if the State proved to you everything that we were required to prove to you and we only did it through the testimony of the victim that you would return a verdict of guilty. . . . Folks, we didn't have a confession here, but we had some talking that was done; and it was the science. The DNA did all of the talking for you along with Ms. Juana Felano. . . .(emphasis added). In this case, the prosecutor commented on the fact that only two people could tell the jury what happened and the appellant did not testify. After appellant's objection was overruled, demonstrating the trial court's agreement with the State, the prosecutor emphasized that the complainant had, in fact, testified and told the jury exactly what happened. Furthermore, the State argued the DNA and complainant "did all of the talking." These comments all followed the State's comments during voir dire that "the defendant is not required — — he doesn't have to testify in trial" and "a defendant doesn't have to, but sometimes they choose to present a defense in these sort of cases." We conclude that the jury would necessarily conclude that the prosecutor's remarks constituted a comment on appellant's failure to testify and answer the charges against him. See Koller v. State, 518 S.W.2d 373, 376-377 (Tex. Crim. App. 1975) ("It is apparent that the prosecutor by his arguments repeatedly attempted to remind the jury of the appellant's failure to testify."); Trevino v. State, 979 S.W.2d 78, 80 (Tex. App.-Austin 1998, pet. ref'd) (holding prosecutor's comment to jury that "[t]wo people were there that night that know what happened, [the defendant] and [the complainant]" emphasized absence of appellant's testimony and constituted reversible error); Norton v. State, 851 S.W.2d 341, 346 (Tex. App.-Dallas 1993, pet. ref'd) (prosecutor's statement that "[t]here were only two people out there and we heard from one of them," is a direct comment on the accused's failure to testify and, thus, reversible error). Thus, we conclude the trial court erred in overruling appellant's objection. As noted above, the prohibition against a direct comment on the accused's failure to testify is mandatory. Tovar, 777 S.W.2d at 489. Still, the Court of Criminal Appeals has held that the prohibition against commenting on a defendant's silence is subject to a harm analysis. Madden v. State, 799 S.W.2d 683, 700 (Tex. Crim. App. 1990). The error which arose during the State's closing argument was an error in the trial process itself. Crocker v. State, 248 S.W.3d 299, 306 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). Thus, a Rule 44.2(a) analysis is required, and we apply the standard of review for constitutional errors as set forth in Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989). See Crocker, 248 S.W.3d at 306 (discussing and applying the Harris factors). In applying the harmless error rules, a reviewing court should not focus on the propriety of the outcome at trial. Id.; see also Harris, 790 S.W.2d at 587. "Instead, an appellate court should be concerned with the integrity of the process leading to the conviction." Id. The court should examine (1) the source of the error, (2) the nature of the error, (3) whether or to what extent it was emphasized by the State, (4) its probable collateral implications, (5) the weight a juror would probably place upon the error, and (6) whether declaring the error harmless would encourage the State to repeat it with impunity. See id. In summary, the reviewing court should ask "whether the error at issue might possibly have prejudiced the jurors' decision-making; it should ask not whether the jury reached the correct result, but rather whether the jurors were able properly to apply law to facts in order to reach a verdict." Id. As discussed more fully below, our consideration of the Harris factors leads us to conclude the error was not harmless. With regard to the first Harris factor, we note that the State was the source of the error here. See Harris, 790 S.W.2d at 587; Crocker, 248 S.W.3d at 306. Under the second and third factors, we conclude the comment was direct and emphasized by the State. Id. Under the fourth and fifth factors of the Harris test, we note that although the jury charge correctly explained the law respecting a defendant's election not to testify, the jury probably still gave some weight to the prosecutor's statement that the jury had only heard from the State's witnesses, especially in light of the fact that the trial court overruled defense counsel's objection. See Harris, 790 S.W.2d at 587; Crocker, 248 S.W.3d at 307. See also Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) ("We generally presume the jury follows the trial court's instructions in the manner presented.") Finally, with regard to the fifth factor, the State may be encouraged to repeat such a mistake if we declared the error harmless. See Harris, 790 S.W.2d at 587; Crocker, 248 S.W.3d at 307. In arguing the error was harmless, the State contends: (1) any error was not severe; (2) that although no curative measures were adopted by the court since the objection was overruled, the comment was not emphasized; and (3) appellant's conviction was certain absent the misconduct. We disagree. With regard to the State's first two arguments, the prosecutor directly commented on the fact that although only two people know what happened that day, the defendant "does not have to testify." After an objection was overruled, demonstrating the trial court's agreement with the State, the prosecutor emphasized appellant's failure to testify by: (1) noting the complainant "told [the jury] exactly what happened"; (2) reminding the jury to return a guilty verdict if the State "only [proved its case] through the testimony of the victim"; and (3) stating that even though the appellant did not confess to the crime, Ms. Felano and the DNA "did all of the talking." Therefore, contrary to the State's assertions, we conclude the error was severe and the comment was emphasized by the prosecutor. Furthermore, we do not believe appellant's conviction was certain absent the misconduct. The State argues the DNA testing and testimony of the complainant contained "overwhelming evidence of appellant's guilt." However, like any other scientific or expert testimony, a jury could have discounted the DNA evidence or found the testing flawed. See Preston v. State, 457 S.W.2d 279, 280 (Tex. Crim. App. 1970); Alvarado v. State, 818 S.W.2d 100, 105 (Tex. App.-San Antonio 1991, no pet.) (A jury may accept or reject in whole or in part the opinion testimony of a witness, and they may even accept lay testimony over that of experts.) Furthermore, the jury could have disbelieved the complainant's testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (As the exclusive judge of the weight and credibility of the witnesses' testimony, the jury is free to believe or disbelieve evidence from either side.) The fact that the prosecutor emphasized the lack of testimony from the appellant leaves us to wonder if the jury would have concluded appellant's silence at trial was an admission of guilt. See Bustamante, 48 S.W.3d at 765. Furthermore, the facts in this case are akin to many in which only the perpetrator and the victim are present and the defendant elects not to testify, electing instead to hold the State to its burden of proof beyond a reasonable doubt. To declare a comment on a defendant's failure to testify harmless here has some potential to open the door to similar comments in other cases. Crocker, 248 S.W.3d at 307. Thus, after due consideration of each of the Harris factors, the totality of the circumstances, and the arguments of the State, we cannot say, beyond a reasonable doubt, that the error did not contribute to appellant's conviction or punishment. Tex. R. App. P. 44.2 (a). Accordingly, we conclude the State's comment on appellant's failure to testify was not harmless and we sustain appellant's first three issues. In light of our disposition of appellant's first three issues, we need not reach appellant's fourth issue. We reverse the judgment of the trial court and remand the case for a new trial.