Stafford v. State

578 S.W.2d 394, 1978 Tex. Crim. App. LEXIS 1471

• Court: Court of Criminal Appeals of Texas
• Decided: November 22, 1978
• Docket: 56400, 56401
• Status: Published

Opinions

OPINION

ODOM, Judge.

These are appeals from convictions for the burglary of a Tom Thumb grocery store in Dallas during which a large quantity of cigarettes was taken. Appellant Stafford's punishment, enhanced by two prior convictions, was assessed at life. Appellant Gardner’s punishment, enhanced by one prior conviction, was assessed at 25 years.

Appellants contend that the trial court committed error by overruling their objection to a statement made by the prosecution during final argument which they construe as a comment on appellants’ failure to testify and that such error deprived them of a fair trial.¹

On the morning of April 29, 1976, police officers, who knew nothing about the burglary which had occurred earlier in the morning, were stopped by a man who stated he had stayed the night at the Lawnview Motel. He reported that during the night he had observed men carrying large quantities of cigarettes into room 126. The officers went to the motel to investigate. There they came upon appellants who matched the descriptions given by the man and discovered 496 cartons of cigarettes in their room. These cigarettes were later identified as having come from the burglarized Tom Thumb store. Shortly thereafter the officers were informed of the burglary by another officer and appellants were placed under arrest.

Prosecutor’s statement during closing argument to which appellants object was as follows:

“Mr. Mitchell told you in one breath that what lawyers have to say in the case is not evidence because they’re not witnesses; that you must gain and gather your evidence from that witness stand. Those who raised their right hand and under penalty of oath swear to tell the truth so help you God. By way of example what witness took the stand and told you jurors those cigarettes were already in that room at three a. m., April 29th, 1976.

“MR. MITCHELL: Objection, Your Honor, that could be construed as a comment on the failure of the Defendant to testify.

“THE COURT: Overrule your objection.”

It is well settled in this State that the failure of accused to testify on his own behalf cannot be made the subject of comment by the prosecution. Such a comment is a violation of the privilege against self-incrimination guaranteed by Article I, Sec. 10 of the Texas Constitution and the express provisions of Article 38.08, V.A.C.C.P., which provides in part that “ . . . 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.” See Bird v. State, Tex.Cr.App., 527 S.W.2d 891 and the cases cited therein. Such a comment is also a contravention of the federal constitutional guarantees against self-incrimination contained in the Fifth Amendment, made applicable to the states by the Fourteenth Amendment. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In order for a comment made by the prosecution to violate Article 38.08, the language used when viewed from the standpoint of the jury, must make the inference that the comment had reference to defendant’s failure to testify a necessary one. “It is not sufficient that the language might be construed as an implied allusion to the accused’s failure to testify.” McDaniel v. State, Tex.Cr.App., 524 S.W.2d 68, 70.

The only testimony which bears directly on the question is that of the motel clerk on duty that morning. He testified that appellant Stafford had checked into room 126 at 3:00 a. m. on April 29, paying the double occupancy rate.² He also stated that someone had rented the room for two hours earlier in the night and that at approximately 2:30 a. m. he had gotten a call from the maid who told him the room was clean.

The comment of the prosecution in the instant case directed the jury’s attention to room 126 at the Lawnview Motel at 3:00 a.m. on April 29, 1976, the time appellants checked into the motel. The question we must answer is, who could have testified as to the condition of the room at that time? Appellants certainly could have. The State contends that the comment was not necessarily directed at appellants because the maid, who was not called as a witness, could also have testified about the presence of cigarettes in the room at that time. The only basis for this contention was the clerk’s testimony that the maid had called about 2:30 a. m. to say the room was clean. The prosecutor’s arg-ument was directed at 3:00 a. m. not 2:30. The only event before the jury occurring at 3:00 a. m. was appellant Stafford’s check-in to the motel. The only persons who could have testified that there were cigarettes in the room at 3:00 a. m. were appellants. Thus, the jury’s attention was forcibly directed to the fact that appellants had not testified. The prosecutor’s argument, which must be construed as a comment on appellants’ failure to testify, violated both their constitutional and statutory rights.

The judgments are reversed and the causes remanded.

DALLY, J., dissents.

Before the Court en banc.

1 . Appellants were tried together and it is apparent from the record that the attorneys for appellants were working closely together such that the objection of Stafford’s attorney to the prosecutor’s statement is sufficient to preserve the error for Gardner as well.

2 . Appellant Gardner admitted he shared the room with Stafford when approached by police later in the morning.