Watkins v. State

698 S.W.2d 698, 1985 Tex. App. LEXIS 12393
CourtCourt of Appeals of Texas
DecidedSeptember 4, 1985
DocketNo. 09 82 111 CR
StatusPublished
Cited by1 cases

This text of 698 S.W.2d 698 (Watkins 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
Watkins v. State, 698 S.W.2d 698, 1985 Tex. App. LEXIS 12393 (Tex. Ct. App. 1985).

Opinion

[700]*700OPINION

BROOKSHIRE, Justice.

Appellant was convicted by a jury for the offense of aggravated rape and his punishment was assessed at confinement for forty-five (45) years. No challenge to the sufficiency 'of the evidence has been made.

The evidence, briefly stated, reflects that the complainant, Darla Lambert, and her two year old daughter were at their home on the night in question, and after putting her daughter to bed at approximately 7:30 P.M., began watching television. Lambert recounted that “I heard a noise behind me, a clicking noise behind me.... I turned around and he was standing behind — up to my throat with a knife.... The man was behind me, with a knife at my throat.” She testified that the intruder ordered her into the bedroom where he, after forcing her to undress, committed an act of rape upon her. She further related that, after a second act of rape, the man “got up and went back in the living room and a few minutes later he left.” The police were subsequently called.

While the police officers, in responding to the call to investigate the incident, were driving to Lambert’s home, they observed a black male riding a bicycle at a distance of “less than a mile” from Lambert’s home. They stopped him and found that he had nothing upon his person to identify him and upon being asked his name, he replied by giving the name of appellant. This man was not arrested at that time and was permitted to leave. The officers made an in-court identification of the man as the appellant.

The State’s fingerprint expert witness testified that a fingerprint lifted from the scene of the rape, when compared with appellant’s fingerprint, was appellant’s fingerprint.

When an arrest warrant and search warrant was executed approximately four or five days following the rape, a knife was found in the pocket of appellant’s pants at the time of the arrest and certain articles of clothing were found which were identified by Lambert, at the time of trial, as those worn by appellant at the time of the offense.

Appellant did not testify and offered no testimony in his behalf during the guilt-innocence or the penalty stage of the trial.

Appellant’s first ground of error contends “[rjeversible error resulted from improper prosecutorial jury argument.”

Appellant complains of the following jury argument made by the prosecuting attorney, during the guilt-innocence stage of the trial, as being a reference to appellant’s failure to testify:

You are not supposed to go out and make up defenses. You are not supposed to speculate about defenses. You are just supposed to look at the evidence. The evidence is uncontroverted. The Defense didn’t put on one witness in their behalf. The evidence, here, is uncontro-verted.

Appellant argues the above quoted remarks were a comment on his failure to testify and constituted a violation of TEX. CODE CRIM.PROC.ANN. art. 38.08 (Vernon 1979). In order to violate Article 38.-08, the language, when viewed from the jury’s standpoint, must be manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the accused’s failure to testify. Banks v. State, 643 S.W.2d 129 (Tex.Crim.App.1982); Lee v. State, 628 S.W.2d 70 (Tex.Crim.App.1982). It is not sufficient that the language might be construed as an implied or indirect allusion. Nowlin v. State, 507 S.W.2d 534 (Tex.Crim.App.1974).

If the language used can be reasonably construed as referring to the appellant’s failure to produce evidence other than his own testimony, it is not an improper remark. Nowlin v. State, supra.

Appellant’s counsel argued to the jury, inter alia, as follows:

The police, on their way to a call from somebody that says she’s been raped and, conveniently, they come upon Mr. Watkins. The testimony is Mr. Watkins cooperated with the police and gave them [701]*701his name. Didn’t have an identification, so he could have told them he was King Kong.... He said, “Yes, my name is Nolan Watkins. I live at so and so.” He didn’t try to run from them and he didn’t try to escape, and they go on about their business.
Now, if Mr. Watkins were [sic] a suspect at that time all they would do is take him down and say, “That’s him.” Didn’t do that.
... Did they bring anybody in here to show you that Nolan Watkins ran out of the house? No. A mile away on a bicycle. Cooperative. Not nervous. Not afraid. Not trying to run_

With reference to the fingerprint taken from the scene of the rape, defense counsel made the following argument to the jury:

... [T]hey go to get the fingerprints and they bring on the expert and the expert goes and lifts one partial and, according to one of their witnesses, a partial latent.... He lifts a fingerprint and he gets up here and he testifies that there are an inderterminate [sic] number of possible comparisons on a fingerprint, but by their own exhibit there are ten, so I get him up there and I asked him, “Well, show me this comparison.” ... You folks take that and you make some comparisons and you determine if there’s anything similar about that. I looked at it, and I don’t see it. It’s their expert, and the expert works for the police department.
... They are not out there to show anybody innocent. They are out there to prove people guilty. They are not out there to find points of dissimilarity. They are out there to prove that one print is like another print. All the stuff comes from the folks that enforce the law....

The prosecuting attorney, in his closing argument, reviewed the evidence, and referring to the fingerprint argument made by defense counsel, stated the following:

[Defense counsel] says, “Who does the fingerprints? The police.” I told you at the beginning the Defense has the right to bring in anybody they want to testify. [Defense counsel] knew about that fingerprint long before yesterday, but you didn’t see him bring an expert. You didn’t see one witness from the stand to say “Oh, this is a barrel of garbage.” Why didn’t he bring in his expert?
The question for you to decide, and you will decide this case, is to look at the evidence in this case.

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Bluebook (online)
698 S.W.2d 698, 1985 Tex. App. LEXIS 12393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watkins-v-state-texapp-1985.