Hicks v. State

• Decision Date: 16 July 1975
• Docket Number: No. 49508,49508
• Citation: 525 S.W.2d 177
• Parties: George Washington HICKS, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 177

525 S.W.2d 177

George Washington HICKS, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 49508.

Court of Criminal Appeals of Texas.

July 16, 1975.

Charles L. Cantrell, Waco, for appellant.

Martin D. Eichelberger, Dist. Atty., Felipe Reyna and Ward Casey, Asst. Dist. Attys., Waco, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for statutory rape, where the punishment was assessed at life imprisonment by the court following a jury's verdict of guilty.

At the outset we are confronted with the complaint that the assistant district attorney improperly alluded to the failure of the appellant to testify. See Article 38.08, Vernon's Ann.C.C.P. ¹

During the argument of the prosecutor at the guilt stage of the trial, he stated, 'I'll tell you what. You know that defendant sits over there, and he's had the benefit of this court appointed lawyer, and he has had the psychiatrist and he has had a couple of bites at the apple--you know that--.'

Then shortly thereafter he argued:

'But, anyway, he looks--you know--he is sitting over there--you know--we had Dr. Anderson--Dr. Anderson had that thing there, and he had his lawyer arguing to you and everything. But there is somebody that we haven't heard from in this case. And I think you all know who it is.

'MR. CANTRELL: Your Honor, we're going to object to that comment. He is obviously commenting--inferring by the place he stood--let the record reflect that he stood right behind the defendant, raised his voice, at that time, and objected--excuse me--not objected--said, 'We haven't heard from somebody in this court.' At that time, Mr. Casey looked down at the defendant in such that by his actions and inferences and comments made, was a comment on not testifying by the defendant.

'MR. CASEY: I was referring to Dr. Stockton, Your Honor.

'MR. CANTRELL: You were not.

'MR. CASEY: Let the record clearly reflect that I was talking about the medical testimony, and Dr. Stockton, the man that took the EEG wasn't up here testifying in Court.

'THE COURT: I'll overrule your objection.

'MR. CANTRELL: Note our exception.' ²

For there to be reversible error because of an allusion to or comment on the failure of an accused to testify in his own behalf, the language used must be looked to from the standpoint of the jury, and the implication that language used had reference to such failure to testify must be a necessary one. Winkle v. State, 506 S.W.2d 891 (Tex.Cr.App.1974); Turner v. State,504 S.W.2d 843 (Tex.Cr.App.1974); Yates v. State, 488 S.W.2d 463 (Tex.Cr.App.1972); Ramos v. State, 419 S.W.2d 359 (Tex.Cr.App.1967). Further, '(i)t is not sufficient that the language might be construed as an implied or indirect allusion thereto.' Yates v. State, supra, at p. 466; Winkle v. State, supra; Turner v. State, supra.

In Garcia v. State, 513 S.W.2d 559, 561--562 (Tex.Cr.App.1974), a McLennan County case involving the same prosecutor as in the instant case, this court wrote, 'It is asserted in appellant's brief that when the prosecutor said, 'there is one person we didn't hear from in this trial,' he stood behind appellant, then when the objection was made, he said, 'from defendant's mother.' If this occurred as appellant recited in his brief, it would doubtless be a direct reference to the failure of appellant to testify, but the record does not support the claim that the assistant district attorney stood behind appellant and thus directed his remarks to his failure to take the stand.'

In the instant case the alert defense counsel stated for the purpose of the record that the prosecutor was standing behind the appellant when he raised his voice, looked down at the appellant and stated, 'But there is somebody that we haven't heard from in this case. And I think you all know who it is.'

This statement, made for the purpose of the record and recorded by the court reporter as to the prosecutor's physical actions, was undisputed by the prosecutor and unquestioned and unqualified by the court in whose presence the statement was made.

Article 40.09, subd. 4, Vernon's Ann.C.C.P., 1965, reads in part as follows:

'. . . A transcription of the reporter's notes when certified to by him and included in the record shall establish the occurrence and existence of all testimony, argument, motions, pleas, objections, exceptions, court actions, refusals of the court to act and other events thereby shown and no further proof of the occurrence or existence of same shall be necessary on appeal; provided, however, that the court shall have power, after hearing, to enter and make part of the record any finding or adjudication which the court may deem essential to make any such transcription speak the truth in any particular in which the court finds it does not speak the truth and any such finding or adjudication having support in the evidence shall be final.'

The record was so certified by the court reporter.

There were no objections to the record and the court caused no hearing to be held in order that the record speak the truth. The record was approved by the trial court. Article 40.09, subd. 7, Vernon's Ann.C.C.P. And we note the State's brief does not contend that the event referred to did not occur. ³

The State points out, however, that Dr. Jack Anderson, a psychiatrist who testified for the defense on the issue of insanity, related on cross-examination that the tracing of an electroencephalogram 'run' on the appellant, to which he had referred on direct examination, had been read by Dr. Robert Stockton, a neurosurgeon. Dr. James Grigson, a State's rebuttal witness, testified that an electroencephalogram was useful but not essential to a proper diagnosis, that if he thought it was important he would talk to the doctor who interpreted it, that if Dr. Anderson had told him he (Anderson) didn't know how to interpret the tracing he would 'want to hear from Dr. Stockton.' Then the record on re-direct examination reflects:

'Q And if you were sitting on a jury, you would want to hear the same thing too, wouldn't you?

'A I don't think it would make a bit of difference in this case.'

While the State clearly has the right to comment upon the accused's failure to call a certain witness to support his defensive theory, Miller v. State, 458 S.W.2d 680 (Tex.Cr.App.1970); Joines v. State, 482 S.W.2d 205 (Tex.Cr.App.1972), this right may not be utilized in such a way that the prosecutor can improperly comment on the defendant's failure to testify and then excuse the same, upon objection, by stating he was referring to someone else. In the instant case the prosecutor stated, upon objection, he was referring to Dr. Stockton, while in Garcia the same prosecutor, upon objection, stated he was referring to the defendant's mother. Unlike Garcia, however, this record shows without dispute that when the complained of remark was made in the jury's presence the assistant district attorney was standing behind the appellant, raised his voice and looked down at the appellant.

The argument in conjunction with the prosecutor's physical actions was manifestly intended to be, and was, of such a character that the jury would naturally or necessarily take it as a comment on the failure of the appellant to testify. Chapman v. State, 504 S.W.2d 912 (Tex.Cr.App.1974); Lipscomb v. State, 467 S.W.2d 417 (Tex.Cr.App.1971); Ramos v. State, supra. This was a clear violation of Article 38.08, Vernon's Ann.C.C.P.

It is regrettable that a prosecutor would continue to engage in improper conduct depriving a defendant of a fair and impartial trial when such conduct is totally unnecessary to secure a conviction. See and compare Koller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975) (reversed because of this same prosecutor's comments on the defendant's failure to testify), as well as Anderson v. State, 525 S.W.2d 20 (Tex.Cr.App.1975) (also reversed because of improper jury argument by this same prosecutor).

For the reasons stated, the judgment is reversed and remanded.

ROBERTS, Judge (concurring).

I agree that this conviction must be reversed, but I would hold that Article 40.09(4), Vernon's Ann.C.C.P., does not alone control our determination of the issue presented.

Appellant's counsel urged that the record should reflect The occurrence of certain observable events, which counsel described with specificity. On the basis of these events, which were part of the prosecutor's argument, counsel objected that the prosecutor was commenting on the appellant's failure to testify.

The prosecutor then urged that the record should reflect that he was talking about Dr. Stockton in his previous comments. This statement by the prosecutor was merely a self-serving statement of alleged intent; in no way did it dispute the statement of appellant's counsel that the observable events had in fact occurred.

The same is true of the trial court's comment, 'I'll overrule your objection.' This statement failed to dispute or deny the truth of the facts stated by defense counsel. Instead, it merely served to express the trial court's disagreement with counsel's assertion that the stated events were in fact objectionable.

The recitation of counsel thus stood unrebutted and unqualified by court or prosecutor, and hence in the same posture as it would have if neither had spoken.

I concur.

ODOM, Judge (concurring).

I concur in the reversal of this conviction, but take exception to the majority's reliance upon Article 40.09(4), V.A.C.C.P. That provision is authority for finding that counsel made the statement appearing in the record before us. It is not authority for finding that counsel's statement is an accurate statement of what occurred.

Although Article 40.09(4) is not authority for holding that counsel's statement for the record is accurate, I believe the statement itself must be taken as accurate because it was not qualified or...