Griffin v. State, 53467

• Decision Date: 29 June 1977
• Docket Number: No. 53467,53467
• Citation: 554 S.W.2d 688
• Parties: Dewey Paul GRIFFIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 688

554 S.W.2d 688

Dewey Paul GRIFFIN, Appellant, v. The STATE of Texas, Appellee.

No. 53467.

Court of Criminal Appeals of Texas.

June 29, 1977.

Rehearing Denied Sept. 14, 1977.

Robert L. Rose, Dallas, court appointed on appeal, Richard C. Jenkins, Dallas, court appointed on appeal, for appellant.

Henry Wade, Dist. Atty., William M. Lamb, Rider Scott and Dan C. Guthrie, Jr., Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

Dewey Paul Griffin appeals from a conviction for the misdemeanor offense of driving while intoxicated. The jury assessed punishment at one year in jail and a fine of $500.00. He contends that the court erred in not allowing his attorney to change his plea from not guilty to guilty and in refusing to grant a mistrial after sustaining an objection to argument. We overrule both contentions and affirm.

Griffin personally entered a plea of "not guilty" when the court inquired of him as to his plea. Counsel then attempted on his own motion to withdraw the plea and enter a plea of "guilty" and waive a jury trial. Griffin said nothing further after his plea of "not guilty" and there is no other showing in this record that he desired to change his plea. While it is true that an attorney may enter a plea of "guilty" or a plea of "nolo contendere" in a misdemeanor case under the provisions of Article 27.14, V.A.C.C.P., he can neither enter such a plea nor change a plea contrary to the express desire of his client. In the instant case appellant personally entered his plea; there is no showing in this record that he wished to change his plea even after his attorney attempted to get him to do so. To deny a defendant the right to enter a plea of "not guilty" or to allow his attorney to change his plea from "not guilty" to "guilty" would be to deny a defendant his rights under Articles 1.04 and 1.05, V.A.C.C.P. No error is shown.

He contends that certain remarks made by the prosecutor during closing argument constituted a comment on his failure to testify. The rule is well established by this Court that before an argument of the prosecution will constitute a comment on the failure of the appellant to testify the language used must be looked to from the standpoint of the jury and the implication that the language used had reference to the appellant must be a necessary one. It is not sufficient that the language might be construed as an implied or indirect allusion. McDaniel v. State, 524 S.W.2d 68 (Tex.Cr.App.1975); Nowlin v. State, 507 S.W.2d 534 (Tex.Cr.App.1974), and cases cited therein.

Appellant did not testify at the guilt stage of the trial nor did he produce any other witnesses in his behalf. Appellant's complaint is directed at the last statement of the following remarks by the prosecutor:

"MR. SCOTT: (Prosecutor) Reasonable doubt is not speculation, conjecture or guess work. And as Mr. Guthrie told you, you are bound not by what the attorney said or asked or questioned in this case, you are bound by the evidence from the testimony that you hear from this stand. Did you hear anybody testify that the Defendant has an impairment in his hearing? Did you hear anybody testify that the Defendant had broken ankles? Did you hear anybody testify that the Defendant had been in a truck all day?"

His objection was sustained and the jury was instructed to disregard the last statement. His motion for mistrial was overruled.

For indirect comments such as this to constitute reversible error they must call for a denial of an assertion of fact or contradictory evidence that only the appellant is in a position to offer. Nowlin v. State, supra.

It is equally well established that counsel may in argument draw from the facts in evidence all inferences that are reasonable, fair, and legitimate and he will be afforded latitude without limitation in this respect so long as his argument is supported by the evidence and offered in good faith. See 56 Tex.Jur.2d, Trial, Section 257, page 590, and Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973).

In the instant case appellant was represented by two attorneys who vigorously attempted to impeach and discredit the State's only witnesses, the officers who had arrested appellant for the instant offense. At one point during cross-examination the following colloquy took place between Officer Kenney and appellant's counsel:

"Q. (Mr. Jenkins) You testified, I believe that he stumbled and that this was one of the factors that you based your opinion that he was under the influence. Is that correct?

"A. (Officer Kenney) It was one of the factors. Yes, sir.

"Q. Yes. That's what I asked.

You don't know how long he had been behind the wheel of that pickup...