If Byrd's trial counsel had preserved this issue for review, without deciding whether the prosecutor's comments were an improper comment on Byrd's failure to testify, we conclude that any error would have been harmless. See Tex. R. App. P. 44.2(a); Wimbrey v. State, 106 S.W.3d 190, 192 (Tex. App.—Fort Worth 2003, pet. ref'd). Under Texas Rule of Appellate Procedure 44.2(a), if we determine constitutional error exists, we should not reverse the judgment unless we determine beyond a reasonable doubt that the error contributed to the defendant's conviction or punishment.
An improper comment on a defendant's failure to testify is reviewed for constitutional harm under rule of appellate procedure 44.2(a), and we reverse only when we determine beyond a reasonable doubt that the error contributed to the defendant's conviction or punishment. See Tex.R.App.P. 44.2(a); Wimbrey v. State, 106 S.W.3d 190, 192 (Tex.App.-Fort Worth 2003, pet. ref'd.). In applying the "harmless error" test, our primary inquiry is what effect the error had, or reasonably may have had, on the jury's decision.
If the prosecutor's comment called the jury's attention to the absence of evidence that could only be supplied by the testimony of the accused, the comment is improper; however, if the language reasonably can be construed to refer to appellant's failure to present evidence other than his own testimony, the comment is not improper. Wimbrey v. State, 106 S.W.3d 190, 192 (Tex. App.—Fort Worth 2009, pet. ref'd); see Madden v. State, 799 S.W.2d 683, 700 (Tex. Crim. App. 1990). In this case, the State's comment was directed at Jackson's appearance.
Alternatively, even assuming the State's arguments were comments on Jackson's failure to testify, we conclude any error in the trial court's overruling Jackson's objections was harmless. See Tex. R. App. P. 44.2(a); see Wimbrey v. State, 106 S.W.3d 190, 192 (Tex. App.-Fort Worth 2003, pet. ref'd). Under Texas Rule of Appellate Procedure 44.2(a), upon determining constitutional error exists, we should reverse unless we determine beyond a reasonable doubt that the error did not contribute to the defendant's conviction or punishment.
Finally, even if the trial court abused its discretion by overruling the objection to the argument, any error was harmless. See Tex. R. App. P. 44.2(a); see also Wimbrey v. State, 106 S.W.3d 190, 192 (Tex. App.-Fort Worth 2003, pet. ref'd). Under Texas Rule of Appellate Procedure 44.2(a), upon determining constitutional error exists, we should reverse unless we determine beyond a reasonable doubt that the error did not contribute to the defendant's punishment.
Alternatively, even if the trial court erred by overruling Jennings's objection to the State's comment, we conclude that any error was harmless. See Tex. R. App. P. 44.2(a); see Wimbrey v. State, 106 S.W.3d 190, 192 (Tex.App.-Fort Worth 2003, pet. ref'd). Under Texas Rule of Appellate Procedure 44.2(a), upon determining constitutional error exists, we should reverse unless we determine beyond a reasonable doubt that the error did not contribute to the defendants conviction or punishment.
Because appellant asserts that the State's improper comment on a defendant's failure to testify violates both federal constitutional privileges as well as article 38.08 of the Texas Code of Criminal Procedure, we view the State's comment for constitutional harm under Texas Rule of Appellate Procedure 44.2(a), and we should reverse unless we determine beyond a reasonable doubt that the error did not contribute to the defendant's conviction or punishment. See TEX.R.APP. P. 44.2(a); Wimbrey v. State, 106 S.W.3d 190, 192 (Tex.App.-Fort Worth 2003, pet. ref'd). Our primary inquiry is what effect the error had, or reasonably may have had, on the jury's decision.
"This requires us to evaluate the entire record in a neutral, impartial, and even-handed manner, not in the light most favorable to the prosecution." Id. at 211 (quoting Wimbrey v. State, 106 S.W.3d 190, 192 (Tex. App.—Fort Worth 2003, pet. ref'd)). The first such purported instance of inappropriate comment occurred during voir dire.
The State's comments in this case do not fault Appellant for exercising his right to not testify; rather, they are proper comments on Appellant's failure to present evidence in his favor. See Jackson, 17 S.W.3d at 674; see also Wimbrey v. State, 106 S.W.3d 190, 192 (Tex. App.—Fort Worth 2003, pet. ref'd) ("if the language reasonably can be construed to refer to Appellant's failure to present evidence other than his own testimony, the comment is not improper[]"). Because the State's jury argument was permissible, the trial court did not err by denying Appellant's motion for mistrial.
"This requires us to evaluate the entire record in a neutral, impartial, and even-handed manner, not in the light most favorable to the prosecution." Id. at 591 (quoting Wimbrey v. State, 106 S.W.3d 190, 193 (Tex. App.—Fort Worth 2003, pet. ref'd)).