Coyle v. State

693 S.W.2d 743, 1985 Tex. App. LEXIS 6816

• Court: Court of Appeals of Texas
• Decided: June 12, 1985
• Docket: 05-84-00525-CR, 05-84-00526-CR
• Status: Published

Opinions

WHITHAM, Justice.

Appellant appeals two convictions for aggravated sexual assault. In his third ground of error, appellant complains that the prosecutor commented on his failure to testify. We agree. Accordingly, we reverse and remand.

At the punishment phase of the trial, the prosecutor remarked, the appellant objected and the trial court ruled as follows:

[PROSECUTOR]: I want to talk about what he looks like in the courtroom right now. You’ve looked at him throughout the trial — and that’s all I’m talking about, just his actions here in this courtroom while you’ve watched him.

Have you seen by his actions one single iota of remorse for aggravated rape—

[DEFENSE COUNSEL]: Judge—

[PROSECUTOR]: —and aggravated sexual assault?

[DEFENSE COUNSEL]: Objection, Your Honor. Counsel is commenting on the defendant’s failure to testify.

THE COURT: I’ll overrule that objection.

Appellant argues that Dickinson v. State, 685 S.W.2d 320 (Tex.Crim.App.1984) controls. In Dickinson, the prosecutor remarked during the punishment phase of the trial that “[y]ou haven’t seen one iota of remorse, one iota of shame.” In Dickinson, as in the present case, the accused’s objection was overruled. In Dickinson, the court of criminal appeals reversed.

Asserting that Dickinson does not control, the State directs our attention to the prosecutor’s language in the present case “... and that’s all I’m talking about, just his actions here in this courtroom while you’ve watched him.” The State argues that the prosecutor’s remark commenting on the absence of “one single iota of remorse” from appellant “indicates that Appellant had reluctantly shown his teeth to the jury” during the guilt or innocence stage of the trial. Relying on Hawkins v. State, 660 S.W.2d 65 (Tex.Crim.App.1983), the State asserts that the prosecutor’s remark in the present case was, therefore, calling attention to appellant’s demeanor.

Thus, we look to the record to tell us what transpired when appellant was asked to show his teeth to the jury at the guilt or innocence stage of trial.

[PROSECUTOR]: May I have the defendant come forward at this time, Judge?

THE COURT: Where did you want him, Mr. Carden?

[PROSECUTOR]: If the Court would direct him to show the jury his top teeth?

A JUROR: I don’t see them.

A JUROR: I can’t see his teeth.

THE DEFENDANT: It’s hard to smile under the circumstances, Your Honor.

THE COURT: Did the jury—

A JUROR: I didn’t see his teeth. All I saw was lips.

[DEFENSE COUNSEL]: Show them your teeth. Can you see his teeth?

THE COURT: Thank you, Mr. Coyle.

THE DEFENDANT: You’re welcome.

Other than this teeth exhibition, the State does not refer us to any other place in the record reflecting any act on appellant’s part that might enable us to conclude that appellant misbehaved or conducted himself in an improper manner during the course of his trial. See Dickinson, at 323. We fail to see the connection between appellant’s demeanor in showing the jury his teeth and the emotion of remorse. Therefore, in the present case, as did the court of criminal appeals in Dickinson, we conclude that reliance upon Hawkins is misplaced. We fail to see the connection between the exhibition of appellant’s teeth and “one single iota of remorse for aggravated rape.” Instead, we treat the State’s “teeth exhibition as demeanor” ploy in the present case as the court of criminal appeals treated the “demeanor” remark in Dickinson when it stated:

We are compelled to agree with appellant’s counsel that the attempt by the prosecuting attorney not to comment on the appellant’s failure to testify, by using the word “demeanor,” amounted to a transparent attempt to call the jury’s attention to the appellant’s invocation of his right to remain silent.

Dickinson, at 324. What was transparent to the court of criminal appeals in Dickinson is equally transparent to this court in the present case.

Consequently, we conclude that the attempt by the prosecutor not to comment on the appellant’s failure to testify, by using the words “and that’s all I’m talking about, just his actions here in this courtroom while you’ve watched him”, amounted to a transparent attempt to call the jury’s attention to the appellant’s invocation of his right to remain silent. We conclude further, therefore, that Dickinson is controlling in the present case. Thus, in Dickinson ’s language:

[F]or us to approve the argument that was made by one of the prosecuting attorneys would amount to permitting jurors to infer lack of remorse from the exercise by the appellant of his constitutional right to remain silent. We decline to approve the argument on the specious ground that it only went to appellant’s demeanor in the courtroom.

Dickinson, at 325. It follows, and we so hold, that the challenged argument in the present case constitutes, not a proper expression upon the appellant’s courtroom demeanor, but, instead, constitutes an indirect comment on the appellant’s failure to testify. Dickinson, at 824. As put by the court in Dickinson-.

The necessary and natural effect of the prosecutor’s comments, that went to “re-morsefulness,” ... amounted to directing the jury’s attention to the failure of the appellant to testify to [this mental state] which, as there is no showing that [it was] ever unlocked and [its] secrecy removed, could have only been known by the appellant, or the appellant was the only person who could have given evidence going to [this mental state], which would have required him to give up his right of self-incrimination.

Dickinson, at 324.

Having found error, we consider whether that error is reversible error. The court of criminal appeals has often held that:

[W]hen a prosecuting attorney violates the provisions of Art. 38.08, ... and the matter is brought before this court for review, this Court’s duty is clear, and the responsibility for the reversal must rest solely upon the prosecuting attorney.... Such error is rarely cureable [sic] by an instruction to the jury to disregard.

Dickinson, at 322. In Dickinson, the prosecutor remarked on the absence of one iota of remorse from the accused and the trial court overruled the accused’s objection. In the present case, the prosecutor remarked on the absence of one iota of remorse from the appellant and the trial court overruled appellant’s objection. In Dickinson, the court of criminal appeals reversed and remanded. We conclude, therefore, that in the present case, we must reverse and remand.

Reversed and remanded.

SPARLING, J., concurs.