Opinion
No. 05-04-01109-CR
Opinion issued April 14, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-57077-PR.
Affirmed.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
MEMORANDUM OPINION
Leon Davonne Phillips appeals his conviction for murder. After pleading not guilty, a jury found appellant guilty and entered a finding that appellant used or exhibited a deadly weapon. The court assessed punishment at confinement for life. Appellant brings one issue on appeal, complaining the prosecutor's argument constituted reversible error. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4. We affirm the trial court's judgment. In his sole point of error, appellant argues that during closing argument, the prosecutor made a comment on appellant's failure to testify. We disagree the statement was a comment on appellant's failure to testify. Proper jury argument must encompass one of the following: (1) a summation of the evidence presented at trial, (2) a reasonable deduction drawn from that evidence, (3) an answer to the opposing counsel's argument, or (4) a plea for law enforcement. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996). To constitute a comment on the defendant's failure to testify, the statement, when viewed from the jury's perspective, must be manifestly intended as a comment on the accused's failure to testify or be of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify. See Montoya v. State, 744 S.W.2d 15, 35 (Tex.Crim.App. 1987) (op. on reh'g.), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). The facts and surrounding circumstances of each case determine if the argument is improper. Id. A conviction may be subject to reversal if it calls "the jury's attention to the absence of evidence that only the testimony from the appellant could supply." Id. Appellant complains specifically about the following statement made by the prosecutor:
Let's talk about the statement for just a second, folks. Detective Trevino told you, he writes down whatever the man tells him to write. It doesn't mean it's a true statement. Doesn't mean it's the truth. And what did he tell you? He told you from the witness stand that the defendant gave him several versions, folks, before he finally wrote something down. I'm not going to introduce the statements to you all that has nothing to do with the evidence, if it doesn't fit with the evidence. What purpose would that serve to do that, to give him a chance to give an alibi in a statement that doesn't fit with physical evidence?Appellant's counsel objected, and the trial court sustained the objection and instructed the jury to disregard. The trial court denied appellant's motion for mistrial. Before the prosecutor made this remark, however, appellant's counsel had stated the following:
We'll ask you to consider that Victoria Gray, is she good enough as a witness to make you believe and vote for a finding of guilty? We would argue not.Is the DNA good enough? Folks, there are holes with it. We know that there were many other contributors, based on a lot of this evidence. Is that good enough? Who was out there with Gray to witness what she saw other than Gray? We know that my client signed a consent form, they had his apartment searched, they had his car searched and the police could take it off if they wanted to. We know that he gave Detective Trevino-we know he gave him a voluntary statement. The prosecutor's statement in this case appears to be a response to appellant's counsel's discussion of the statement given to Detective Trevino and the State's choice not to introduce that statement into evidence. An answer to the opposing counsel's argument is proper jury argument. See Shannon, 942 S.W.2d at 597. We conclude the complained-of statement was neither manifestly intended as a comment on appellant's failure to testify nor was of such a character that the jury would necessarily and naturally take it as a comment on his failure to testify. See Montoya, 744 S.W.2d at 35. Furthermore, even assuming the prosecutor's statement could be construed as a comment on appellant's failure to testify, we conclude the trial court's instruction to disregard cured the error, if any. See Moore v. State, 999 S.W.2d 385, 405 (Tex.Crim.App. 1999) (instruction to disregard will cure all but most egregious errors). We resolve appellant's sole issue against him.
We affirm the trial court's judgment.