Dickinson v. State

• Decision Date: 05 December 1984
• Docket Number: No. 292-84,292-84
• Citation: 685 S.W.2d 320
• Parties: Russell Kent DICKINSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 320

685 S.W.2d 320

Russell Kent DICKINSON, Appellant, v. The STATE of Texas, Appellee.

No. 292-84.

Court of Criminal Appeals of Texas En Banc.

Dec. 5, 1984.

Arch C. McColl, III, S. Michael McColloch, David W. Coody, Dallas, for appellant.

Henry Wade, Dist. Atty., Anne B. Wetherholt, Janice Warder and Chris Stokes, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

We granted the petition for discretionary review that was filed on behalf of Russell Kent Dickinson, appellant, in order to make the determination whether the Dallas Court of Appeals correctly rejected appellant's contention that the prosecuting attorney's jury argument, that was made at the punishment stage of the trial, that appellant had failed to express in the courtroom "remorse," "shame," or "pity" towards or for his victim was an impermissible comment on the appellant's failure to testify. See Dickinson v. State, 667 S.W.2d 576 (Tex.App.--Dallas 1984). Because we find that the court of appeals erroneously decided appellant's contention, we will reverse its judgment.

Appellant was convicted on a plea of not guilty by a jury of the offense of aggravated rape of a child, who the record reflects was nine years of age at the time and had an I.Q. of only 35. Thereafter, a punishment hearing was conducted, after which the jury assessed punishment at thirty (30) years' confinement in the Department of Corrections. Appellant did not testify at either stage of his trial. We have carefully examined the record to see whether at any time during the trial, when appellant was in the courtroom, he conducted himself in an unacceptable manner, but our reading of the record reflects that appellant during all of these times conducted himself in an acceptable manner.

Although we find that the facts of this case would easily shock the sensibilities of the average person, nevertheless, such did not permit the prosecuting attorney to make improper argument to the jury. In sum, a prosecuting attorney, though free to strike hard blows, is not at liberty to strike foul ones, either directly or indirectly. Jackson v. State, 529 S.W.2d 544, 546 (Tex.Cr.App.1975).

It is now elementary that the object and principal purpose of argument to the jury is to aid and assist it in properly analyzing the evidence and to arrive at a just and reasonable conclusion based on the evidence alone. The law provides for, and presumes a fair trial, free from improper jury argument by the prosecuting attorney. Richardson v. State, 158 Tex.Cr.R. 536, 257 S.W.2d 308 (1953). Improper argument on the part of the prosecuting attorney occurs when in his or her argument to the jury the prosecuting attorney violates a mandatory provision of a statute, makes a manifestly improper, harmful, or prejudicial argument, or the prosecuting attorney injects through his argument some new and harmful fact into the case. Vineyard v. State, 131 Tex.Cr.R. 476, 100 S.W.2d 362 (1937).

Art. 38.08, V.A.C.C.P., expressly provides that if the accused invokes his right not to testify during his trial, such shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by the prosecuting attorney. Recently, in Brown v. State, 617 S.W.2d 234 (Tex.Cr.App.1981), this Court stated that "the right of self-incrimination does not end with the jury finding the defendant guilty for, as Presiding Judge Onion said in Brumfield v. State, [445 S.W.2d 732 (Tex.Cr.App.1969) ] 'The mere finding of guilt does not terminate the privilege against self-incrimination .... the privilege ceases only when liability to punishment no longer exists...' " This Court went on to hold in Brown, supra, that it was reversible error if the trial court, at the punishment stage of the trial, over objection, failed to give an instruction on the defendant's failure to testify at that stage of the trial. In this instance, the trial judge instructed the jury at both stages of the trial that they could not consider the appellant's failure to testify in deciding his guilt or his punishment.

This Court has often held that when a prosecuting attorney violates the provisions of Art. 38.08, supra, and the matter is brought before this court for review, this Court's duty is clear, and the responsibility for the reversal must rest solely upon the prosecuting attorney. Lankford v. State, 156 Tex.Cr.R. 113, 239 S.W.2d 394 (1951). Such error is rarely cureable by an instruction to the jury to disregard.

In this instance, one of the prosecuting attorneys, near the end of her jury argument at the punishment stage of the trial, argued to the jury, inter alia, ¹ "And you know, another pretty important [piece of] evidence that you can consider is what you've observed of this man right here..." The prosecuting attorney soon thereafter, after pointing towards the appellant, argued the following: "You haven't seen one iota of remorse, one iota of shame." Appellant's objection to this argument was overruled. The prosecuting attorney also, but later, after again pointing towards the appellant, argued the following to the jury: "And you didn't see any pity for that nine-year old retarded girl that was led into this courtroom from that man over there." ² Appellant's objection to this argument was also overruled. The court of appeals held that "the comments directed the jury's attention only to the appellant's demeanor in court and not to the absence of his testimony." [Our Emphasis]. We are unable to agree with this holding.

The above statements the prosecuting attorney made to the jury clearly do not fall within the permissible perimeters of proper jury summation, which are stated in Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973), and thus need not be restated here. Also see Campbell v. State, 610 S.W.2d 754 (Tex.Cr.App.1981); Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980); Dunbar v. State, 551 S.W.2d 382 (Tex.Cr.App.1977).

There is not anything in the record of appeal that might tend to reflect or indicate what appellant's "demeanor" might have been when he was in the courtroom during his trial. As noted, we have carefully read the record and have yet to find any instance where appellant misbehaved or conducted himself in other than an acceptable manner during the times he was in the courtroom.

The word "demeanor" is usually defined to mean the following: "The way in which a person behaves or conducts himself; deportment; manner." 350 The American Heritage Dictionary of the English Language (1973 Edition). Thus, had the record reflected that appellant misbehaved or conducted himself in the jury's presence in an unacceptable manner, then it would have been proper for the prosecuting attorney, in her jury argument, to have commented on the appellant's "demeanor." But as noted, we have yet to find, and the State does not refer us to any place in the record, any act on the part of the appellant that might enable us to conclude that he misbehaved or conducted himself in an improper manner during the course of his trial.

We also do not find that the statements the prosecuting attorney made concern an act or event of such common occurrence that its recognition does not require any expertise. Before it is permissible for either attorney to call to the attention of the jurors that which the jurors had an equal opportunity to observe, such must be reflected in the record or be of such common occurrence that its recognition requires no expertise. Jordan v. State, 646 S.W.2d 946, 948 (Tex.Cr.App.1983).

Furthermore, for us to put our stamp of approval on the prosecuting attorney's statements that appellant had not shown the jury that he was remorseful or shameful for what he was accused of committing would amount to overruling what is now axiomatic in our law: that a prosecutor's comment on a defendant's failure to testify offends both our State and Federal Constitutions, as well as our statutory law. Owen v. State, 656 S.W.2d 458 (Tex.Cr.App.1983). In Owen, we expressly stated the following: "If the remark complained of called the jury's attention to the absence of evidence that only the testimony from the appellant could supply, the conviction must be reversed." (459).

It is now well settled in this State that for the argument or comment of the prosecuting attorney to offend against Art. 38.08, supra, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the accused's failure to testify must be a necessary one. It is not sufficient that the language used might be construed as an implied or indirect allusion thereto. Ramos v. State, 419 S.W.2d 359, 367 (Tex.Cr.App.1967). The test employed is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the accused's failure to testify. Banks v. State, 643 S.W.2d 129, 134 (Tex.Cr.App.1982). Also see Garrett v. State, 632 S.W.2d 350 (Tex.Cr.App.1982). Of course, in applying this test, the facts and circumstances of each case must be analyzed to determine whether the language used was of such character. McDaniel v. State, 524 S.W.2d 68 (Tex.Cr.App.1975); Koller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975); Overstreet v. State, 470 S.W.2d 653 (Tex.Cr.App.1971).

The court of appeals concluded that the prosecutor's comments regarding the appellant's failure to show the jury that he was remorseful or shameful, or had pity for his victim, was directed only to the appellant's "demeanor" in the courtroom and not to the absence of his testimony. In so holding, the court of appeals relied upon...