Marable v. State

802 S.W.2d 3, 1990 WL 178474
CourtCourt of Appeals of Texas
DecidedApril 17, 1991
Docket6-90-007-CR
StatusPublished
Cited by7 cases

This text of 802 S.W.2d 3 (Marable v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marable v. State, 802 S.W.2d 3, 1990 WL 178474 (Tex. Ct. App. 1991).

Opinions

OPINION

BLEIL, Justice.

James Marable appeals his conviction for possession of marihuana. The issues we address on this appeal concern the propriety of the prosecution’s jury argument and the sufficiency of the evidence. We conclude that the prosecution’s jury argument constitutes reversible error, but that sufficient evidence supports the verdict. Therefore, we reverse the judgment and remand the case for a new trial.

In August of 1989, while flying in a light plane, a game warden saw land with vegetation that he recognized as marihuana. Officers obtained a search warrant and searched the property. They found two fields of marihuana. The plants were approximately ten feet tall, planted in rows, and were partially screened from view by weeds and a planted row of corn. The officers harvested the plants, obtaining approximately ninety pounds of marihuana.

The marihuana patches were located on property rented by Mary Marable, the daughter of James and Virginia Marable, about two years before the issuance of the search warrant. All of the Marables resided on the property, which consists of about seventy acres. The largest patch of marihuana was located about 800 feet from the Marables’ residence, approximately twenty feet behind a barn. A three-wheeled vehicle was parked beside the Marables’ mobile home, and witnesses described a well-worn trail from the house, around the barn, to the' marihuana patch. The officers’ search revealed 1,500 to 2,000 used starter pots near the barn. Also near the barn was a homemade sprinkler system that had been painted in camouflage colors. The largest of the two marihuana patches was clearly visible from the barn.

The pivotal issue which we must first address concerns the prosecutor’s jury argument. Marable asserts that the argument constitutes an improper comment on the failure of the defendant to testify.

Marable, his wife, Virginia, and daughter, Mary, were jointly tried and convicted of possession of marihuana. None of the defendants testified. During the summation of the case the prosecutor made the following remarks:

Now, I don’t know what the defense is. Is the defense “Somebody else was growing it”? Is the defense, “We just didn’t know it popped up in rows on our place”? Is the defense, “We were growing a garden and this stuff just popped up”? I don’t know. I mean, I didn’t hear that much of a defense.

The court overruled defense counsel’s objection to the argument and denied a motion for mistrial. We now consider whether the argument constituted an improper comment on the failure of Marable to testify on his own behalf.

When a defendant elects not to testify, his silence is not a proper subject for comment, either directly or indirectly, by the prosecuting attorney. Dickinson v. State, 685 S.W.2d 320, 322 (Tex.Crim.App.1984). Comments on a defendant’s failure to testify violate Tex. Const, art. I, § 10, as well as U.S. Const, amend. V. Additionally, it is statutorily prohibited. Tex.Code CRiM. PROC.Ann. art. 38.08 (Vernon 1979); see also Bird v. State, 527 S.W.2d 891, 893 (Tex.Crim.App.1975). In order for argument of this type to constitute reversible error it must either be manifestly intended [5]*5to be, 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, 690 (Tex.Crim.App.1977). If the prosecutor’s argument directs the jury’s attention to evidence that is lacking, which only the defendant can supply, the defendant’s conviction must be reversed. Owen v. State, 656 S.W.2d 458, 459 (Tex.Crim.App.1983). With these guidelines in mind, we now analyze the argument made by the prosecutor in the case against the Marables. The prosecutor argued that “I don’t know what the defense is.” Is it this? Is it that? “I mean, I didn’t hear that much of a defense.” By arguing that he does not know what the defense is, the prosecutor makes clear that he is not referring to or attacking any defensive theories which have actually been presented. This remark appears to patently direct the jury’s attention to the fact that evidence is lacking that only the defendants could supply.

The argument in this case is similar to that condemned in Cherry v. State, 507 S.W.2d 549 (Tex.Crim.App.1974). There, the prosecutor argued as follows:

Now, what defenses are available to a person in a case like this? Number one, alibi, I was somewhere else, / was with someone else.

In that case, the court found that the prosecutor’s use of the word “I” contradicted any theory that he was referring to witnesses other than the defendant. Cherry v. State, 507 S.W.2d at 550. Concerning argument of this nature, the Cherry decision has been closely adhered to. The Court of Criminal Appeals has subsequently held that,

When the word “I” is used in reference to something the defendant might have testified to, but did not, it is illogical to think that the jury is not reminded of the defendant’s failure to testify. This is a classic example of what Article 38.08 was trying to prevent.

Cook v. State, 702 S.W.2d 597, 599 (Tex. Crim.App.1985). The remarks here, like those in Cook, are a classic example of prohibited argument. Here, however, there were three defendants rather than one, and the first person pronoun “we” was used in reference to something any of the defendants might have testified to but did not. We are compelled to conclude that the prosecutor’s argument in this ease was an impermissible comment on the defendants’ failure to testify. Having found error in the proceedings below and being unable to determine beyond a reasonable doubt that the error made no contribution to the conviction or the punishment, we are required to reverse the judgment. Tex.R. App.P. 81(b)(2).

Ordinarily, we would reverse and remand this cause for a new trial without addressing other issues. However, in this case the defendant has challenged the sufficiency of the evidence to support his conviction. When the evidence is insufficient to support a conviction a defendant cannot be tried again. Therefore we are required to address the sufficiency of the evidence question.

In determining the question of sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). When the State’s evidence is wholly circumstantial, as it is here, the evidence must exclude every reasonable hypothesis except the defendant’s guilt; otherwise, a guilty verdict is not a rational finding. Freeman v. State,

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52 S.W.3d 242 (Court of Appeals of Texas, 2001)
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38 S.W.3d 730 (Court of Appeals of Texas, 2001)
White v. State
890 S.W.2d 131 (Court of Appeals of Texas, 1994)
Skidmore v. State
838 S.W.2d 748 (Court of Appeals of Texas, 1993)
Marable v. State
840 S.W.2d 88 (Court of Appeals of Texas, 1992)

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802 S.W.2d 3, 1990 WL 178474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marable-v-state-texapp-1991.