Nickens v. State

604 S.W.2d 101, 1980 Tex. Crim. App. LEXIS 1070

• Court: Court of Criminal Appeals of Texas
• Decided: January 30, 1980
• Docket: 57034
• Status: Published

Opinions

OPINION ON APPELLANT’S MOTION FOR REHEARING

W. C. DAVIS, Judge.

This appeal is from a conviction for rape of a child with appellant’s punishment assessed at twelve (12) years’ imprisonment. Our prior opinion 576 S.W.2.d 91 (Tex.Cr.App.) is withdrawn. By per curiam opinion, on January 17, 1979, we overruled appellant’s contention that the prosecutor’s jury argument constituted a comment on appellant’s failure to testify, because the comment did not necessarily refer to appellant. Upon re-examination of the evidence adduced at trial, we conclude that we were in error.

The prosecutrix, appellant’s 13-year-old daughter, was living with appellant and his second wife, Jeannie. She testified that on the date of the offense, Jeannie came to her bedroom and told her to go into appellant’s bedroom. The prosecutrix testified that she did so, and that after she did, her father started “bothering” her and thereafter had sexual intercourse with her.

At trial, only two other witnesses testified besides the prosecutrix. Police Officer Dana Franklin testified that he had a conversation with the prosecutrix’s sister and that he arrested appellant. Antoinette Hernandez, Deputy District Clerk, testified concerning the date which the indictment was filed. This was the sum total of the State’s case against appellant. Appellant presented no evidence whatsoever.

During his argument to the jury at the guilt or innocence phase of the trial, the prosecutor argued that the prosecutrix was worthy of belief, and stated:

“. . . Now ask yourself that, what does that little girl have to gain or lose by coming in here and telling you a lie? Now, she didn’t have to do it. What does she have to gain or lose? Can you think of anything? She is no longer staying with her father any more. She wants to go back to her mother and she is already there. What reason did she have to tell this jury anything but the truth?

I said I’d ask for a little understanding. Now, ladies and gentlemen, there are only two real witnesses to this case. The little girl came in here and told you what happened. There is no other witness to it. Either you believe her—

MR. BRAUCHLE (defense counsel): We object to this argument by the State’s Attorney in that it goes to the Defendant’s failure, to testify.

THE COURT: The Court has instructed the jury in its charge that they will not consider that for any purpose whatsoever of any evidence. I do not take it that that is what Counsel has in mind in his argument, Counsel.

MR. BRAUCHLE: Is our objection overruled?

THE COURT: Overruled.”

(Emphasis added)

A prosecutor’s comment on a defendant’s failure to testify offends both our State and Federal Constitutions as well as Article 38.-08, Vernon’s Ann.C.C.P. Pollard v. State, 552 S.W.2d 475 (Tex.Cr.App.1977); Bird v. State, 527 S.W.2d 891 (Tex.Cr.App.1975). 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); Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975); McDaniel v. State, 524 S.W.2d 68 (Tex.Cr.App.1975). 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. For an indirect comment such as this 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. See Griffin v. State, supra; Hicks v. State, supra; Koller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975); Nowlin v. State, 507 S.W.2d 534 (Tex.Cr.App.1974).

In the instant case, the record reflects only two witnesses to the offense: the pros-ecutrix and appellant. The prosecutrix testified; appellant did not. There is no testimony that Jeannie, appellant’s wife, was present or nearby during the commission of the offense, nor is there any testimony from which we might infer that she was. The only mention at trial of a third person was that Jeannie came and got the prosecutrix and told her to go to her father’s bedroom. Given this state of the record, we can only conclude that the comment by the prosecutor was necessarily a reference to appellant’s failure to testify. Thus, the trial court erred in overruling appellant’s objection. Such error requires reversal. See Bird v. State, supra; Hicks v. State, supra; McDaniel v. State, supra; Koller v. State, supra.

Appellant’s motion for rehearing is granted; the judgment is reversed and the cause remanded.

ONION, P. J., dissents.