Johnson v. State, 59987
Decision Date | 20 May 1981 |
Docket Number | No. 59987,No. 3,59987,3 |
Citation | 611 S.W.2d 649 |
Parties | Tommy JOHNSON, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Thomas N. Thurlow, Houston, for appellant.
Carol S. Vance, Dist. Atty. & W. Scott Carpenter and Connie Williams, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.
Appeal is taken from a conviction for aggravated robbery. Following his plea of guilty, the jury assessed appellant's punishment at 5 years.
In his first ground of error, appellant contends that the court erred in failing to grant a mistrial due to improper jury argument. He maintains that the argument was improper as a comment upon appellant's failure to testify. Appellant did not testify, but offered testimony of his parents in support of his application for probation.
The complained of argument and counsel's objection thereto are as follows:
Art. 38.08, V.A.C.C.P. provides as follows:
"Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause."
A prosecutor's comment on a defendant's failure to testify offends both our State and Federal Constitutions. Nickens v. State (Tex.Cr.App.), 604 S.W.2d 101; Pollard v. State (Tex.Cr.App.), 552 S.W.2d 475. The language of such a comment must be either manifestly intended, or of such a character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify. Griffin v. State (Tex.Cr.App.), 554 S.W.2d 688; Hicks v. State (Tex.Cr.App.), 525 S.W.2d 177. 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. Myers v. State (Tex.Cr.App.), 573 S.W.2d 19.
The State does not dispute the contention that the argument was a comment upon appellant's failure to testify. Rather, the State urges that the argument "constituted a cogent response to Appellant's argument with respect to punishment."
The invited argument rule permits prosecutorial argument outside the record in response to defense argument which goes outside the record. Franks v. State (Tex.Cr.App.), 574 S.W.2d 124. However, a prosecutor may not stray beyond the scope of the invitation. Kincaid v. State (Tex.Cr.App.), 534 S.W.2d 340.
The record reflects that appellant's counsel spent the majority of his argument in requesting the jury to recommend that the punishment to be assessed be probated. Counsel concluded his argument in the following manner:
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