Davis v. State

670 S.W.2d 255

• Court: Court of Criminal Appeals of Texas
• Decided: April 4, 1984
• Docket: 253-83
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

Trial was before the jury upon appellant’s plea of not guilty of aggravated robbery. After finding appellant guilty, the jury assessed punishment at 70 years. The conviction was reversed by the Court of Appeals for the Fifth Supreme Judicial District. See Davis v. State, 646 S.W.2d 594 (Tex.App.1983 — Dallas). We granted the State’s petition for discretionary review in order to examine the Court of Appeals’ holding that the State improperly commented on the accused’s failure to testify.

The complained of remark occurred during jury argument at the punishment stage when the prosecutor stated:

“You know, you may find it hard to believe that by age 17 you can be as mean, as vicious, as self-centered and as •totally devoid of fellings [sic] for other human being lives as he is. You think he can be rehabilitated? Look at that witness stand. Was there one shred of evidence before you to tell you he’s going to change, he can be changed, he wants to be changed, he will change?”

Appellant’s objection to the remark as a comment on his failure to testify was sustained by the trial court. The jury was instructed to disregard the comment, but appellant’s motion for mistrial was denied.

A prosecutor’s comment on a defendant's failure to testify offends both our State and Federal Constitutions. Nickens v. State, 604 S.W.2d 101 (Tex.Cr.App. 1980). 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, 554 S.W.2d 688 (Tex.Cr.App.1977). The implication that the language used has reference to the appellant must be a necessary one in order for this Court to hold that the statement was a comment on the defendant’s failure to testify. Bird v. State, 527 S.W.2d 891 (Tex.Cr.App.1975). For an indirect comment to constitute reversible error, it must call for a denial of an assertion of fact or contradictory evidence that only the defendant is in a position to offer. Johnson v. State, 611 S.W.2d 649 (Tex.Cr.App.1981).

The Court of Appeals interpreted the prosecutor’s statement as one calling for contrition on appellant’s part. In Thomas v. State, 638 S.W.2d 481 (Tex.Cr.App.1982), we defined contrition as, “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.” 638 S.W.2d at 484.

We held in Thomas that testimony of third persons that an accused has expressed contrition is not legally admissible evidence in mitigation when offered by an accused.

The Court of Appeals reasoned that since only appellant could offer evidence of contrition, the prosecutor’s reference to the defense’s failure to put on such evidence was necessarily a comment on appellant’s failure to testify.

Plainly, however, the prosecutor spoke of rehabilitation rather than contrition. The desire, potential, and ability of a person to rehabilitate himself can be objectively assessed and testimony on this subject does not have to come from the defendant alone. See Logan v. State, 455 S.W.2d 267 (Tex.Cr.App.1970); Atiaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967).

Since the Court of Appeals’ analysis was premised on the theory that the prosecutor was referring to appellant’s lack of contrition, we must reject it.

Looking anew at the complained of language, it is obvious that the prosecutor was not manifestly intending to comment or necessarily commenting on the accused’s failure to testify. The prosecutor could have just as easily been discussing the failure of the accused to call any witnesses ¹ to testify regarding rehabilitation. Indeed, when looking at the State’s argument as a whole, this is the more likely interpretation. The prosecutor had moments earlier stated, in response to appellant’s plea to the jury to consider rehabilitation:

“I’m gong to ask you to consider what "you know, from the evidence, about Stephen Bernard Davis. You know, Mr. Poole just stood here and said well, consider his background and his upbringing that’s caused him to be the man he is.

“What do you know about that? Not one thing. He could have the nicest parents in the city of Dallas, for all you know. He could have the nicest neighbors and the nicest minister. And for all you know, he’s the rotten apple in the family’s barrel and that’s why none of them are down here to say anything good about him.”

The prosecutor’s comment was not one the jury would naturally and necessarily take as a comment on appellant’s failure to testify.

The judgment of the Court of Appeals is reversed and the cause is remanded for a consideration of appellant’s other grounds of error.

MILLER, J., concurs.

1 . This Court has consistently held that a prosecutor may comment on failure of an accused to present any witnesses in his behalf. See Thomas v. State, supra; McKenzie v. State, 617 S.W.2d 211 (Tex.Cr.App.1981); Tarpley v. State, 565 S.W.2d 525 (Tex.Cr.App.1978); Winkle v. State, 506 S.W.2d 891 (Tex.Cr.App.1974).