Opinion
No. 04-05-00616-CR
Delivered and Filed: February 13, 2008. DO NOT PUBLISH.
Appealed from the 226th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-5444, Honorable Sid Harle, Judge Presiding. Affirmed.
Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION ON REMAND
Defendant was charged on eight counts of sexual assault and indecency with a child. At trial, defendant did not deny having sexual relations with the complainant; instead, he disputed her age at the time they had sex, arguing she was at least seventeen years old. A jury found defendant guilty on four counts of sexual assault and two counts of indecency with a child. The jury assessed punishment at ten years' confinement and a $10,000 fine, but recommended that defendant be placed on community supervision for ten years. Defendant appealed and in an opinion and judgment dated January 31, 2007, we reversed the trial court's judgment and remanded for a new trial. In our January 31, 2007 opinion, we addressed defendant's complaints regarding the admission into evidence of the testimony of two State witnesses, and defendant's argument that his conviction must be reversed because counts three, four, and seven of the indictment alleged actions that were not offenses in 1992, 1993, and 1994. Because it was not dispositive of the appeal, we did not address defendant's final complaint regarding the prosecutor's closing argument. See Hammons v. State, 221 S.W.3d 720 (Tex.App.-San Antonio 2007). The State petitioned the Court of Criminal Appeals for discretionary review, challenging our conclusion that the trial court erred in admitting the statements of the two witnesses. The Court of Criminal Appeals reversed the judgment of this court and remanded for this court to consider defendant's remaining issues. See Hammons v. State, 2007 WL 3375262 (Tex.Crim.App. Nov. 14, 2007). The Court of Criminal Appeals did not address our resolution of the complaints regarding the indictment because neither the State nor the defendant raised those issues. Since remand to this court, defendant has filed an amended brief in which he complains only about the prosecutor's closing argument. We now affirm.
PROSECUTOR'S CLOSING ARGUMENT
Defendant asserts the trial court erred when it overruled his objection to the prosecutor's closing argument, which defendant contends was an improper comment on his failure to testify. A prosecutor cannot comment on a defendant's failure to testify because such a comment violates the privilege against self-incrimination and the freedom from compulsion to testify contained in the Fifth Amendment of the United States Constitution and Article 1, section 10, of the Texas Constitution. Bustamante v. State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001). A prosecutor's statement constitutes a direct comment on a defendant's failure to testify if it references evidence that only the defendant can supply. Silva v. State, 989 S.W.2d 64, 66 (Tex.App.-San Antonio 1998, pet. ref'd). An indirect comment constitutes reversible error when "it must call for a denial of an assertion of fact or contradictory evidence that only the defendant is in a position to offer." Davis v. State, 670 S.W.2d 255, 256 (Tex.Crim.App. 1984). To determine if the offending language violated a defendant's right against self-incrimination, we must view it from the jury's standpoint. Bustamante, 48 S.W.3d at 765. The prosecutor's reference must make a clear allusion to the defendant's failure to testify, and language that might be construed as an implied or indirect allusion to a defendant's failure to testify is insufficient. Id. This standard requires us to test whether the prosecutor used language that 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 apply this standard by viewing and analyzing the context in which the prosecutor used language of such a character. Id. A jury argument should be evaluated in terms of the entire argument and not just isolated portions of counsel's statements. See Drew v. State, 743 S.W.2d 207, 220 (Tex.Crim.App. 1987). During defense counsel's closing argument, counsel focused on the lack of evidence regarding the locations where the alleged sexual assaults took place. The prosecutor countered defense counsel's argument with the following:Prosecutor: [Y]ou will see that Count VI and VIII having to do with indecency with a child are the ones that are labeled as being involved at the Hampton Inn. Let's give Mr. Taylor every benefit of the doubt and his client. Throw those counts out. Find him not guilty on VI and VIII on the Hampton Inn. Because, you know what? Mr. Taylor's right, the Hampton Inn incident and the date that [complainant] relates to it in her mind, they don't — they don't click. They don't. They don't. But let me tell you something. Just like Mister — just like I have the ability to call witnesses, so does Mr. Taylor, and you will notice what he brought you. He only brought you the Hampton Inn. Why? Because he didn't have anything else.
Defense: Judge, that's a comment on the Fifth Amendment and I'm going to object.
Court: Overruled.
Prosecutor: He did not bring you anything about the Scotsman Inn, he did not bring you anything about the Motel 6, he did not bring you anything about the Ruby Inn. And his very witness, his experts, told you that there were a huge number of hotels up and down 35 that had been there for 15, 20, and 30 years, all of which were in the area that [complainant] described. You want to talk about — he wants to make a big deal about the fact that Holmes High School was in one part of town and this affair, so-called, with the defendant was in another part. If you're going to be having illicit sex with an under-aged child, are you going to be doing it near where your church is? Near where her school is? Near where you're going to be recognized? No. You're going to take that child to another part of town. And that's precisely what he did.It appears the prosecutor's statements, taken in the context of his entire argument, were not intended to refer to defendant's failure to testify, but were meant to focus the jury on the lack of evidence to rebut all the locations where the sexual assaults took place. We conclude the prosecutor's argument did not amount to a prohibited reference to defendant's failure to testify. Therefore, the language used was not manifestly intended to be or was of such a character that the jury would necessarily and naturally take it as a comment on defendant's failure to testify. See Bustamante, 48 S.W.3d at 765.