Dubose v. State

531 S.W.2d 330, 1975 Tex. Crim. App. LEXIS 1175

• Court: Court of Criminal Appeals of Texas
• Decided: November 26, 1975
• Docket: 50606
• Status: Published

Opinions

OPINION

BROWN, Commissioner.

The appellant was convicted of robbery. The jury found that the appellant had previously been twice convicted of felony offenses prior to the instant offense. Punishment was assessed at life in accordance with Sec. 12.42(d) of the Penal Code.

The sufficiency of the evidence is not challenged.

Appellant complains of the following argument, made by the prosecutor at the guilt or innocence stage:

“Now, not one time during this entire proceeding, not one single time, not one sentence, not one scintilla of evidence, not one word in any way did this defendant or these attorneys challenge the credibility of Peggy Lou Edwards.

“MR. ZIMMERMANN: Your Honor, I object to Mr. Johnson’s innuendo on the defendant’s failure to testify.

“THE COURT: Overruled.

“MR. JOHNSON: When the Judge overrules the objection, you may consider what I have to say.” (Emphasis Supplied)

The argument complained of becomes even more clearly a comment on the failure of the appellant to testify when the facts of the case are considered. The record reflects that during the robbery which occurred on September 4, 1973, only the complainant, Mrs. Peggy Lou Edwards, and the robber were present. The jury was aware that there was no other witness that could be called to testify about the appellant’s presence. It is uncontroverted that there was no other witness to the robbery than the victim and the robber. In this context and from the perspective of the jury the argument becomes even more clearly a comment on the failure of the appellant to take the stand and testify.

The argument complained of clearly falls within the prohibition of Art. 38.08, V.A.C. C.P., Art. 1, Sec. 10, of the Constitution of the State of Texas, and the Fifth Amendment of the United States Constitution. See Bird v. State, 527 S.W.2d 891 (Tex.Cr. App.1975) where Presiding Judge Onion cites and discusses most of the recent cases on prosecutorial comment on the failure of the defendant to testify.

In the case before us there can be no doubt that the remarks of the prosecutor amounted to a nearly direct comment on the failure of the appellant to testify.

Because of the manifestly improper argument of the prosecutor the judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, J., not participating.