State v. Lopez

810 S.W.2d 401, 1991 Tex. Crim. App. LEXIS 127, 1991 WL 99944

• Court: Court of Criminal Appeals of Texas
• Decided: June 12, 1991
• Docket: No. 891-90
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was convicted by a jury of the offense of murder and was sentenced by the trial court to life imprisonment. On appeal, the Third Court of Appeals reversed the conviction on appellant’s ground for review contending that the trial court erred in refusing to declare a mistrial when the prosecutor commented on his failure to testify at the guilt stage of the trial. 793 S.W.2d 738.

We originally granted the State’s petition on the ground for review claiming that the court of appeals erred in ignoring defense arguments that implicitly questioned the existence of a motive by emphasizing the bizarre nature of the slaying coupled with bad-faith suggestions that appellant was peaceable and that exculpatory evidence was secreted; and that the court of appeals erred in concluding the argument is a flagrant comment on a defendant’s failure to testify, incurable by instruction.

Upon review of the briefs and arguments of both the State and appellant, we conclude that the State’s petition was improvidently granted. Although this offense represents a heinous crime, we are compelled by the record, by argument of counsel, and by review of the reasoning of the Third Court of Appeals, that its judgment should not be disturbed. The record supports the court of appeals’ decision that the prosecutor’s argument was a violation of Article I, § 10 of the Texas Constitution and the Fifth Amendment to the United States Constitution. The role of this Court as a reviewing tribunal is to diligently preserve the integrity of our Constitution. Accordingly, the State’s petition for discretionary review is dismissed.

McCORMICK, P.J., and WHITE, J„ dissent.