Hicks v. State

525 S.W.2d 177, 1975 Tex. Crim. App. LEXIS 1034

• Court: Court of Criminal Appeals of Texas
• Decided: July 16, 1975
• Docket: 49508
• Status: Published

Opinions

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for statutory rape, where the punishment was assessed at life imprisonment by the court following a jury’s verdict of guilty.

At the outset we are confronted with the complaint that the assistant district attorney improperly alluded to the failure of the appellant to testify. See Article 38.08, Vernon’s Ann.C.C.P.¹

During the argument of the prosecutor at the guilt stage of the trial, he stated, “I’ll tell you what. You know that defendant sits over there, and he’s had the benefit of this court appointed lawyer, and he has had the psychiatrist and he has had a couple of bites at the apple — you know that — .”

Then shortly thereafter he argued:

“But, anyway, he looks — you know — he is sitting over there — you know — we had Dr. Anderson — Dr. Anderson had that thing there, and he had his lawyer arguing to you and everything. But there is somebody that we haven’t heard from in this case. And I think you all know who it is.

“MR. CANTRELL: Your Honor, we’re going to object to that comment. He is obviously commenting — inferring by the place he stood — let the record reflect that he stood right behind the defendant, raised his voice, at that time, and objected — excuse me — not objected — said, ‘We haven’t heard from somebody in this court.’ At that time, Mr. Casey looked down at the defendant in such that by his actions and inferences and comments made, was a comment on not testifying by the defendant.

“MR. CASEY: I was referring to Dr. Stockton, Your Honor.

“MR. CANTRELL: You were not.

“MR. CASEY: Let the record clearly reflect that I was talking about the medical testimony, and Dr. Stockton, the man that took the EEG wasn’t up here testifying in Court.

“THE COURT: I’ll overrule your objection.

“MR. CANTRELL: Note our exception.” ²

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. Winkle v. State, 506 S.W.2d 891 (Tex.Cr.App.1974); Turner v. State, 504 S.W.2d 843 (Tex.Cr.App.1974); Yates v. State, 488 S.W.2d 463 (Tex.Cr.App.1972); Ramos v. State, 419 S.W.2d 359 (Tex.Cr.App.1967). Further, “[i]t is not sufficient that the language might be construed as an implied or indirect allusion thereto.” Yates v. State, supra, at p. 466; Winkle v. State, supra; Turner v. State, supra.

In Garcia v. State, 513 S.W.2d 559, 561-562 (Tex.Cr.App.1974), a McLennan County ease involving the same prosecutor as in the instant case, this court wrote, “It is asserted in appellant’s brief that when the prosecutor said, ‘there is one person we didn’t hear from in this trial,’ he stood behind appellant, then when the objection was made, he said, ‘from defendant’s mother.’ If this occurred as appellant recited in his brief, it would doubtless be a direct reference to the failure of appellant to testify, but the record does not support the claim that the assistant district attorney stood behind appellant and thus directed his remarks to his failure to take the stand.”

In the instant case the alert defense counsel stated for the purpose of the record that the prosecutor was standing behind the appellant when he raised his voice, looked down at the appellant and stated, “But there is somebody that we haven’t heard from in this case. And I think you all know who it is.”

This statement, made for the purpose of the record and recorded by the court reporter as to the prosecutor’s physical actions, was undisputed by the prosecutor and unquestioned and unqualified by the court in whose presence the statement was made.

Article 40.09, subd. 4, Vernon’s Ann.C. C.P., 1965, reads in part as follows:

“. . . A transcription of the reporter’s notes when certified to by him and included in the record shall establish the occurrence and existence of all testimony, argument, motions, pleas, objections, exceptions, court actions, refusals of the court to act and other events thereby shown and no further proof' of the occurrence or existence of same shall be necessary on appeal; provided, however, that the court shall have power, after hearing, to enter and make part of the record any finding or adjudication which the court may deem essential to make any such transcription speak the truth in any particular in which the court finds it does not speak the truth and any such finding or adjudication having support in the evidence shall be final.”

The record was so certified by the court reporter.

There were no objections to the record and the court caused no hearing to be held in order that the record speak the truth. The record was approved by the trial court. Article 40.09, subd. 7, Vernon’s Ann.C.C.P. And we note the State’s brief does not contend that the event referred to did not occur.³

The State points out, however, that Dr. Jack Anderson, a psychiatrist who testified for the defense on the issue of insanity, related on cross-examination that the tracing of an electroencephalogram “run” on the appellant, to which he had referred on direct examination, had been read by Dr. Robert Stockton, a neurosurgeon. Dr. James Grigson, a State’s rebuttal witness, testified that an electroencephalogram was useful but not essential to a proper diagnosis, that if he thought it was important he would talk to the doctor who interpreted it, that if Dr. Anderson had told him he (Anderson) didn’t know how to interpret the tracing he would “want to hear from Dr. Stockton.” Then the record on re-direct examination reflects:

“Q And if you were sitting on a jury, you would want to hear the same thing too, wouldn’t you?

“A I don’t think it would make a bit of difference in this case.”

While the State clearly has the right to comment upon the accused’s failure to call a certain witness to support his defensive theory, Miller v. State, 458 S.W.2d 680 (Tex.Cr.App.1970); Joines v. State, 482 S.W.2d 205 (Tex.Cr.App.1972), this right may not be utilized in such a way that the prosecutor can improperly comment on the defendant’s failure to testify and then excuse the same, upon objection, by stating he was referring to someone else. In the instant ease the prosecutor stated, upon objection, he was referring to Dr. Stockton, while in Garcia the same prosecutor, upon objection, stated he was referring to the defendant’s mother. Unlike Garcia, however, this record shows without dispute that when the complained of remark was made in the jury’s presence the assistant district attorney was standing behind the appellant, raised his voice and looked down at the appellant.

The argument in conjunction with the prosecutor’s physical actions was manifestly intended to be, and was, of such a character that the jury would naturally or necessarily take it as a comment on the failure of the appellant to testify. Chapman v. State, 504 S.W.2d 912 (Tex.Cr.App.1974); Lipscomb v. State, 467 S.W.2d 417 (Tex.Cr.App.1971); Ramos v. State, supra. This was a clear violation of Article 38.08, Vernon’s Ann.C.C.P.

It is regrettable that a prosecutor would continue to engage in improper conduct depriving a defendant of a fair and impartial trial when such conduct is totally unnecessary to secure a conviction. See and compare Roller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975) (reversed because of this same prosecutor’s comments on the defendant’s failure to testify), as well as Anderson v. State, 525 S.W.2d 20 (Tex.Cr.App.1975) (also reversed because of improper jury argument by this same prosecutor).

For the reasons stated, the judgment is reversed and remanded.

1 . Article 38.08, Vernon’s Ann.C.C.P., reads as follows:

“Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.”

2 . It is observed that earlier during the-cross-examination of a lay witness for the defense as to the appellant’s mental condition the record reflects:

“BY MR. CASEY:

, “Q Are you telling this jury that if George Washington Hicks was to take this stand and testify, that they couldn’t believe anything that he said, because he wouldn’t know wrong from right?”

The objection that the same was a comment on the appellant’s failure to testify was overruled.

3 . The dissent relies upon Salazar v. State, 397 S.W.2d 220 (Tex.Cr.App.1965), a murder prosecution which was tried before the 1965 Code of Criminal Procedure and Article 40.09, Vernon’s Ann.C.C.P., became effective, and was thus controlled by the former Code of Criminal Procedure. In the opinion on original submission in Salazar the court held that his “bill of exception” could not be considered because the facts related by the defense counsel (that the deceased’s brother, a State’s witness, was showing his scars to the jury) was not certified by the trial court. In support thereof the court quoted from 5 Tex.Jur.2d, Appeal and Error — Criminal Cases, Sec. 200, p. 330, that such certification was required. However, this quote dealt with the statutory requirements of a formal bill of exception under the former Code of Criminal Procedure. Highly significant is the fact that in the opinion on rehearing this court, without setting out any further facts or reasoning, concluded the bill of exception was properly before this court and that exhibition of the scars was not error. An examination of the record in Salazar shows that the bill of exception involved was an informal bill of exception found in the statement of facts as opposed to a formal bill of exception. Salazar is clearly not controlling or applicable. The dissent also cites Wingate v. State, 487 S.W.2d 89 (Tex.Cr.App.1972), which involved a hearing on a motion for new trial wherein counsel merely stated he had received “new evidence” since the trial that the witness Moore used a wheelchair and not a stretcher as he had done during trial and that a “hoax” had been perpetrated on the court. This statement was not supported by evidence at the hearing and related to something counsel had learned out of court after the trial. Wingate was correctly decided, but it is not applicable to the instant case.

The dissent also calls attention to Barrien-tez v. State, 487 S.W.2d 97 (Tex.Cr.App. 1972). Barrientez is distinguishable. There, defense counsel asserted that pictures the State had offered and which had been ruled inadmissible were in a position where they could be seen by the jury. Such assertion was not sufficient, standing alone, to establish that the jurors had seen the pictures since such fact was not within the knowledge of the assertor. It was necessary to establish that the jurors had seen the pictures before there would have been any basis to appellant’s claim that the prosecutor had exhibited the pictures to the jury.

Ross v. State, 504 S.W.2d 862 (Tex.Cr. App.1974), mentioned by the dissent, did not involve a question of necessity of certification by the judge of the remarks made by defense counsel. It involved the right of the accused to call his wife as a witness before the jury as to the issue of the voluntariness of his confession. In the course of the opinion this court quoted defense counsel’s statement that the court had refused to permit the wife to testify and the court responded, “Yes, sir, bring the Jury in please ..” If the “Yes, sir” did in fact refer to the statement of counsel, the Ross case did not turn on that fact.

The dissent appears to argue that the court’s approval of the record is not the certification required and tries to limit the certification encompassed by the approval of the record. We find no such limitation in the words of Article 40.09, Vernon’s Ann.C. C.P., cited by the dissent. Further, Ticer v. State, 166 Tex.Cr.R. 334, 313 S.W.2d 301 (1958), also cited in support of such limitation, did not involve the approval of the record but involved the approval of a formal bill of exception under the former Code of Criminal Procedure.

It appears the dissent would not accept an unchallenged and unqualified statement of defense counsel made in open court as to an occurrence there duly recorded by the court reporter until such officer of the court gets

the court to certify that the event referred to occurred. The dissent suggests in part that evidence may be offered at a hearing on a motion for new trial. It is well settled, however, that any conflict in evidence is for the trial judge at such hearing. A formal bill of exception was mentioned, but Article 40.09, subd. 6, Vernon’s Ann.C.C.P., makes clear that the office of such bill and a possible subsequent bystander’s bill relates to such action, evidence, occurrence, etc., “not otherwise shown by the record.” We repeatedly find appellate records where the prosecutor, also an officer of the court, elicits identification testimony from a witness and then states, without certification from the court, “Let the record reflect the witness had identified the defendant.” I know of no case where this court has held that such statement by the prosecutor could not be considered. There should be no double standard.