Opinion
Number 13-02-593-CR.
Opinion Delivered and Filed March 20, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 94th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and KENNEDY.
Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to TEX. GOV'T CODE ANN. § 74.003 (Vernon 1998).
OPINION
Appellant was indicted for the murder of Brandie Ramos. She was found guilty by a jury and her punishment was assessed by the court at confinement for forty-five years. Appellant's brief brings two issues, the first of which alleges error when the trial court allowed the jury to separate without appellant's consent, following oral argument. The code of criminal procedure in article 35.23, provides that: "The court on its own motion may and on the motion of either party shall, after having given its charge to the jury, order that the jury not be allowed to separate, after which the jury shall be kept together and not permitted to separate except to the extent of housing female jurors separate and apart from male jurors, until a verdict has been rendered or the jury finally discharged." The TEX. CODE CRIM PROC. art. 35.23 CODE CRIM. P (Vernon 2002) law was changed in 1989 to read as aforesaid. Prior to the 1989 enactment the law provided, in pertinent part, "When jurors have been sworn in a felony case, the court may, at its discretion, permit the jurors to separate until the court has given its charge to the jury, after which the jury shall be kept together, and not permitted to separate except to the extent of housing female jurors separate and apart from male jurors, until a verdict has been rendered or the jury finally discharged, unless by permission of the court with the consent of each party." TEX.CODE CRIM. PROC. ANN. art. 35.23 (Vernon 1989). The record does not show that appellant moved to sequester the panel. The cases submitted as authority by appellant for this issue all were decided before 1989. The record before us does not show that either party made a motion to not allow the jury to separate. We deny the relief sought in appellant's first issue. Appellant's second issue is:
Whether the trial court violated the appellant's Fifth Amendment right to due process of law when it failed to grant a mistrial following repeated improper arguments by the prosecution.
In support of this issue, appellant quotes from the record the State's argument which she found objectionable:
. . . This trial has probably gone on long enough for you and we could have made this a six-month long Los Angeles trial and brought everybody, brought all fifty cops or however many showed up. We don't have to do that. And if those witnesses knew anything, that would help them. They come [sic] bring them — they got the same power, subpoena.
. . . told me she didn't do it. It was Andrew Doria. `She tells the cop it was Andrew Doria.' How does she know Andrew Doria did it? How can she — I almost forgot about that. How can she tell the cop Andrew Doria did it? Where's the evidence she knew who did it?Appellant's objection in each instance was sustained by the trial court and in one instance counsel requested a mistrial which was denied. The prosecutor may comment on the defendant's failure to produce witnesses and evidence so long as the remark does not fault the defendant for exercising his right not to testify. Jackson v. State, 17 S.W.3d 664, 674 (Tex.Crim.App. 2000). The prosecutor's arguments did not amount to faulting the defendant for exercising her Fifth Amendment right not to testify. We deny the relief sought by issue number two and AFFIRM the judgment of the trial court.