Bustamante v. State
Decision Date | 13 June 2001 |
Citation | 48 S.W.3d 761 |
Parties | (Tex.Crim.App. 2001) VICTOR BUSTAMANTE, Appellant v. THE STATE OF TEXAS NO. 1954-99 |
Court | Texas Court of Criminal Appeals |
In Victor Bustamante's murder trial, his attorney asked a State's witness what type of gangs were in Bustamante's neighborhood. When the State objected, the trial judge said "as soon as I hear from the defendant we'll get into it." We hold that the mere fact that this remark was made before Bustamante closed his case does not preclude it from being a comment on his failure to testify.
Close to midnight on Independence Day 1996, Arturo Chavez was at his mother's house drinking beer with his cousin David Avelar. Around 2:00 a.m. Chavez and Avelar left to buy more beer at the Good Time store. On their way back, they saw Bustamante out in his yard. An argument ensued between Avelar and Bustamante, and Bustamante asked Avelar and Chavez to leave. As they were leaving, Bustamante shot Avelar.
During trial, Bustamante attempted to elicit testimony that Avelar was a dangerous gang member that Bustamante feared. Bustamante argued that this evidence was relevant to show his state of mind. The first attempt to introduce this type of evidence occurred when Bustamante asked Chavez during cross-examination whether Avelar ran around town with a shotgun. After the State's relevance objection, the following conversation took place outside the presence of the jury:
During Bustamante's second attempt to introduce this type of information, he was trying to ask Chavez's mother whether Chavez was a gang member. Again the State made a relevance objection. Again, outside the presence of the jury, Bustamante argued the following:
In Bustamante's third and final attempt, he asked a deputy sheriff what sort of gangs were in the area. Instead of approaching the bench again, the following took place in front of the jury:
Then at the bench, out of the hearing of the jury, the following occurred:
The court then instructed the jury:
COURT: The jury is instructed to disregard any comment I made regarding the issue regarding the gang relevance after we hear from the defendant, that I may have said or the prosecutor may have said.
At the close of the State's case, Bustamante chose not to present any evidence and did not testify. The court's charge instructed the jury not to take Bustamante's failure to testify against him for any purpose whatsoever.
On appeal, Bustamante challenged the trial judge's statement - "[w]ell, as soon as I hear from the defendant, we'll get into it" - arguing that it was a comment on Bustamante's failure to testify. Citing McCarron v. State,1 the Court of Appeals stated that "[t]he established rule, if the prosecutor or a witness had made the comment, is that this is not a comment on the defendant's failure to testify, because there could not be a comment on a failure that had not yet occurred."2 The Court of Appeals then held that this "established rule" does not apply to judges because judges are to "maintain an attitude of impartiality" and "their conduct carries special and heavy weight with jurors."3 Subsequently, the Court of Appeals found that this comment was a direct reference to the defendant's failure to testify, that the instruction to disregard did not cure the error, and that Bustamante was harmed.
We granted the State's petition for discretionary review to address whether the Court of Appeals erred in restricting "the rule of McCarron" to witnesses and prosecutors.
Neither the trial judge nor the prosecutor can comment on the failure of an accused to testify.4 Such a comment violates the privilege against self-incrimination and the freedom from being compelled to testify contained in the Fifth Amendment of the United States Constitution and Article I, § 10, of the Texas Constitution.5 Just as it is improper for the State to argue from a defendant's silence, it is also improper for the trial judge to call attention to a defendant's silence.6 As the United States Supreme Court has stated, 7
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.8 It is not sufficient that the language might be construed as an implied or indirect allusion.9 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.10 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.11
The Court of Appeals indicated that, according to McCarron, no comment made before the close of a defendant's case can ever be a comment on the failure to testify. The Court of Appeals found that this "established rule" does not apply to judges. The parties agree with the Court of Appeals that McCarron sets forth a bright-line rule regarding the timing of the comment. We disagree.
The timing of the comment in this case is similar to the timing of a comment in Moore v. State.12 In Moore, during guilt-innocence, the defense attorney asked the examining doctor on cross-examination to read Moore's responses to questions Moore answered during a psychological battery test. There were 175 questions. The prosecutor asked if the responses could be limited and stated that these were "[t]he answers the defendant gave, which the defendant can testify to."13 Without addressing the timing of the comment, we held that this was an improper comment on the defendant's failure to testify even though it was made before the close of the defendant's case.14 This is not to say that timing cannot be a factor to consider in determining whether a comment was a comment on the failure to testify.
In McCarron, during cross-examination, the prosecutor asked "Well, you just have to accept it at face value unless you talk to the person who wrote it, isn't that right?"15 Citing Jackson v. State16 and Terry v. State,17 we initially stated that "we have previously held that a comment such as that in the instant case cannot be held to refer to a failure to testify which has not yet occurred."18 But we went on to hold that there was no error because (1) the "prosecutor had no way of knowing whether [the defendant] would testify at the time the complained of question was asked" and (2) the "question did not refer to her failure to testify, but rather, indicated that she knew whether the check in question was really for a draw." But McCarron did not create a per se rule that a comment made before the close of a defendant's case can never be a comment on the failure to testify. Instead, the timing of the comment was a factor we considered. It was not dispositive.
Nor do the cases we relied on in...
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