Pope, Curtis Wayne Jr.

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0533-05 CURTIS WAYNE POPE, JR., Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY

Johnson, J., filed a concurring opinion.

C O N C U R R I N G O P I N I O N

I concur in the judgment of this Court, but not its reasoning. It is permissible to argue to the jury that the defendant did not present witnesses to contradict testimony offered by the state. It is not permissible to select a potential, but uncalled, witness such as Dr. Benjamin, tout his knowledge, experience, and standing among his colleagues and then argue, solely because the defendant did not call him as a witness (a circumstance that could have many causes), that even that eminent scholar did not dispute the state's evidence. Such tactics constitute bolstering of the testimony of the state's witnesses. The trial court erred in admitting such testimony and in failing to curtail the state's argument about it. The court of appeals was correct in finding error and that the error was statutory and harmless. Tex. R. App. P. 44.2(b). I would affirm the judgment of the court of appeals and its reasoning.

Filed: November 15, 2006

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