Thomas v. State

• Citation: 638 S.W.2d 481
• Decision Date: 15 September 1982
• Docket Number: No. 108-82,108-82
• Parties: David Sheppard THOMAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 481

638 S.W.2d 481

David Sheppard THOMAS, Appellant, v. The STATE of Texas, Appellee.

No. 108-82.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 15, 1982.

John P. Knouse, Dallas, for appellant.

Henry Wade, Dist. Atty. and Gilbert P. Howard, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

The offense is aggravated robbery, for the commission of which the jury that found him guilty assessed punishment at confinement for a period of thirty three years. The Court of Appeals affirmed, one Justice dissenting with opinion. Thomas v. State, 629 S.W.2d 112 (Tex.App.--Dallas, 1981).

The sole question presented is whether the Court of Appeals correctly decided that the trial court did not commit reversible error during punishment stage when the prosecutor was winding down his final argument and the following occurred:

"MR. WILSON --- I'll tell you something else you didn't hear. You didn't hear one single solitary bit of contrition on the part of this defendant from his witnesses nor his attorney. He had his wife and sister up there. They didn't tell you, 'Boy, he's sorry about this. He's sorry and he wants to do right. He just wishes he hadn't have done it.' You didn't hear that. You didn't hear one single bit of that and I guarantee you if he was sorry for what he had done--and I submit he is not in the least bit sorry--you would've heard about it from his witnesses.

[DEFENSE COUNSEL]: Objection, Your Honor. The Prosecutor is pointing at my client. He has attempted to comment on the Defendant's failure to testify, which he has a right not to do and I object on that basis.

THE COURT: Overrule your objection. Counsel, I think your time is up."

Under a heading "Comment on Appellant's Lack of Contrition," the Court of Appeals considered the contention of appellant that such argument was "improper and prejudicial," id., at 114, and, construing it "as a reference to the failure of the character witnesses to give evidence of appellant's contrition rather than on the appellant's failure to testify," ¹ held that the argument was not improper, id., at 115. The dissenting opinion joined issue with the majority and opined that "the prosecutor's remarks ... concerning appellant's lack of contrition, together with the prosecutor's gesture in pointing to the appellant as he made the remark, constitute reversible error." Id., at 116. We perceive a deeper problem, albeit raised inartfully by appellant in his petition for review: Whether during final argument on punishment the State may properly comment on the failure of an accused who did not testify to adduce from his witnesses who did testimony of contrition on his part about committing the offense of which he has just been found guilty. ²

After an accused has been found guilty, the ultimate issue of punishment to be assessed remains for determination. Essential ingredients of that determination have been legislatively prescribed and judicially crafted. Stiehl v. State, 585 S.W.2d 716, 718 (Tex.Cr.App.1979). Thus, regardless of whether assessed by judge or jury, Article 37.07, § 3(a), V.A.C.C.P., prescribes that "evidence may be offered by the State and the defendant as to the prior criminal record of the defendant, his general reputation and his character." ³ And to that judicial craftsmen have added: "Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, ⁴ if any, ⁵ is also admissible." Allaben v. State, 418 S.W.2d 517, 519 (Tex.Cr.App.1967).

So it is that a prosecutor may comment on failure of an accused to present any witnesses or evidence at all in his behalf or to call certain particularized competent and material witnesses to testify about character, reputation or other relevant matters. McKenzie v. State, 617 S.W.2d 211, 219 (Tex.Cr.App.1981); Tarpley v. State, 565 S.W.2d 525, 532 (Tex.Cr.App.1978); Winkle v. State, 506 S.W.2d 891, 897 (Tex.Cr.App.1974). But if the Court has ever held in a noncapital case that contrition is a matter included in the statutory prescription of Article 37.07, § 3(a), supra, such that an accused may offer affirmative testimony of others to show his contriteness, the parties have not called that opinion to our attention. Similarly, "legally admissible" evidence in mitigation of punishment, that Allaben, supra, teaches is proper, ⁶ has not yet embraced, so far as we are advised, testimony of third persons that an accused has become contrite. Therefore, whether it is appropriate for a prosecutor to remark on failure of an accused to adduce evidence of contrition from witnesses other than himself seems to be a question of first impression in this Court.

Despite the danger of self interest influencing falsification, a witness is allowed to testify as to his own state of mind. Ray, Law of Evidence (Third Edition) § 1428, 2 Texas Practice 87. So, when an accused does take the stand at a punishment hearing the Court has held that he may be crossexamined as to his feeling of remorse. Wills v. State, 501 S.W.2d 925, 927 (Tex.Cr.App.1973); Santiago v. State, 444 S.W.2d 758 (Tex.Cr.App.1969). ⁷

Contrition is a dogma of theology. It connotes "sincere sorrow for sin, wrongdoing or offense, especially as arising from a sense of baseness of sin and of God's loving mercy," Standard Handbook of Synonyms, Antonyms & Prepositions (Revised Edition) Funk & Wagnalls (New York 1947) 363. It is, in short, a state of mind--and a highly personal one at that. Indicia of contriteness is necessarily generated after an offense by the one who is sorrowful for what he has done. That one is contrite about it must be communicated in order for others to know. ⁸

However, in criminal cases "selfserving declarations" by an accused are ordinarily inadmissible in his behalf, 24 Tex.Jur.2d 163, § 612; Ray, Law of Evidence § 786, 1A Texas Practice 13. So third parties testifying such declarations were made by accused do not provide evidence of probative value, DeRusse v. State, 579 S.W.2d 224, 233 (Tex.Cr.App.1979); Mendoza v. State, 522 S.W.2d 898, 899 (Tex.Cr.App.1975); see Ray, Law of Evidence § 872, 1A Texas Practice 115-117. Therefore, we hold that testimony of third persons that an accused has expressed contrition is not "legally admissible" evidence in mitigation when offered by an accused.

Consequently, we do not approve of holding that the argument in question was "not improper." It was improper because the prosecutor faulted appellant for that which he could not accomplish through testimony of his wife and sister in that they were not competent and material witnesses on the subject of the state of his mind with respect to contrition. See McKenzie v. State, supra, at 219-220 and n. 27.

Having concluded that the Court of Appeals erred in overruling appellant's second ground of error for the reason it did, we decide how to treat the decision of the Court of Appeals. See Tex.Cr.App. Rule 304(k). It is our best judgment that in the interest of judicial economy the ground of error overruled by the Court of Appeals should now be directly addressed by this Court.

We have set forth ante a rationale somewhat like that indicated in the dissenting opinion below, to the effect that contrition is personal to an accused and remains his secret unless unburdened to others. Still, the law with respect to an argument smacking of failure of an accused to testify obtains:

"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. [citations omitted] Further, '[i]t is not sufficient that the language might be construed as an implied or indirect allusion thereto.' Yates v. State, [488 S.W.2d 463 (Tex.Cr.App.1972) ] at p. 466. [Other citations omitted]."

Hicks v. State, 525 S.W.2d 177, 178 (Tex.Cr.App.1975); Johnson v. State, 650 S.W.2d 649 (Tex.Cr.App.1981); ⁹ cf. Griffin v. State, 554 S.W.2d 688, 690 (Tex.Cr.App.1977).

Contrastively to Johnson v. State, supra, the argument complained of in the case at bar was not "a direct and flagrant reference to what the jury had not heard appellant say," id., at 650. Rather it called attention to not hearing even a "bit of contrition on the part of this defendant from his witnesses nor his attorney," and suggested that if appellant were sorry for what he had done "you would've heard about it from his witnesses." Though, as we have held, the prosecutor was operating under a misconception of applicable law of evidence, his language literally indicted others than appellant individually and personally. For reasons already developed the argument is improper, but from the standpoint of a lay jury it does not constitute a necessary implication that appellant has failed to testify in his own behalf.

Accordingly, the ground of error is overruled.

The judgment of the Court of Appeals is affirmed.

ROBERTS, TOM G. DAVIS and W. C. DAVIS, JJ., concur in the result.

TEAGUE, Judge, dissenting.

Finding myself in total agreement with the dissenting opinion of Justice Whitham of the Dallas Court of Appeals, see Thomas v. State, 629 S.W.2d 112, 116 (Tex.App.--Dallas 1981), and because I believe that Justice Whitham has stated in his extremely well written opinion everything that needs to be stated concerning the appellant's complaint that the prosecuting attorney's jury argument was so prejudicial that it deprived the appellant of a fair trial, this Court should merely state in an opinion that the appellant's petition for discretionary review is granted and that Justice Whitham's opinion is adopted in toto as this Court's opinion. To do more than that adds nothing to the jurisprudence of this State.

However, a...