Myers v. State, 55348
Citation | 573 S.W.2d 19 |
Decision Date | 08 November 1978 |
Docket Number | No. 55348,No. 3,55348,3 |
Parties | Alton Eugene MYERS, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Frank W. Sullivan, III, Fort Worth, for appellant.
Davis S. McAngus, Asst. State's Atty., for the State.
Before DOUGLAS, DAVIS and VOLLERS, JJ.
Appeal is taken from a conviction for possession of more than four ounces of marihuana. Art. 4476-15, Sec. 4.05(a) & (b)(1), V.A.C.S. The jury assessed punishment at ten years and a $5,000 fine.
The appellant and his wife were tried together in a joint trial. As hereinafter noted, a mistrial was declared as to appellant's wife.
Since we find that the prosecutor's commenting on appellant's failure to testify requires reversal of this cause, it is not necessary to set out the facts or reach appellant's other grounds of error.
The argument complained of occurred during the prosecutor's final argument. The record reflects the following occurred during the argument:
While the foregoing argument forms the basis of appellant's ground of error, we note that the argument which followed resulted in a mistrial being granted as to appellant's wife.
The trial court granted a mistrial in the wife's case. The record indicates that the judge ordered the jury to disregard the statement as to the appellant but denied a motion for mistrial.
We first note that the objection to the argument in question was overruled. Therefore we are not presented with a question of whether a timely instruction cured the error in question.
The State maintains that "those two people" referred to the appellant's attorneys. Assuming, arguendo, that this is true, the remark was still improper.
The State may not comment on the accused's failure to testify. Tex.Const., Art. I, Sec. 10; Art. 38.08, V.A.C.C.P., Construed in Pollard v. State, Tex.Cr.App., 552 S.W.2d 475; Dubose v. State, Tex.Cr.App., 531 S.W.2d 330; Bird v. State, Tex.Cr.App., 527 S.W.2d 891; U.S.Const., Amend. V, Construed in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The comment must be more than an implied or indirect allusion to the defendant's...
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