Opinion
No. 05-09-00141-CR
Opinion Filed November 30, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause No. F07-73633-UH.
Before Justices O'NEILL, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
Appellant appeals his conviction for aggravated assault with a deadly weapon. After finding appellant guilty, the jury assessed punishment at eighteen-years' confinement. In two issues, appellant contends the prosecutor impermissibly commented on his failure to testify. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for stabbing Clarence Williams in the chest. At trial, the State presented evidence that shortly before the stabbing, several people were standing around a Dallas apartment complex arguing. Williams walked by the crowd and started rapping "freestyle" and said something about his finger "itching." As Williams walked away, appellant approached and tapped him on the shoulder. When Williams turned around, appellant stabbed him. After the stabbing, everyone fled. Appellant's primary defense was mistaken identity. More specifically, he asserted his brother, whom he resembles, was the person that committed the stabbing. However, Williams testified he was familiar with both appellant and his brother, he could tell the difference between them, and appellant was the person that stabbed him. The apartment manager of the apartments likewise testified that she had seen both appellant and his brother around the apartments and that appellant was the person that stabbed Williams. To show mistaken identity, appellant relied on evidence that Williams told police after the offense that the perpetrator had dreadlocks. Appellant presented evidence that he never had dreadlocks, but his brother did. Appellant also presented evidence that he and his brother look "strikingly similar." In closing the State argued: The question that still remains, if this wasn't [appellant] that night, then where was [appellant]? You didn't see any witnesses that the Defense brought to you of where was the guy. Appellant objected that the remark violated his " Fifth Amendment right." The trial court overruled his objection. In two issues, appellant asserts the trial court erred in overruling his objection. It is a violation of the Fifth Amendment of the United States Constitution and Article I, § 10 of the Texas Constitution for a prosecutor to comment on a defendant's failure to testify. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). In determining whether a complained-of comment violated the defendant's rights, we view the comment from the jury's standpoint and look to see if the comment was manifestly intended to be or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. Id. An indirect or implied allusion is insufficient. Id. Calling attention to the absence of evidence which only the defendant could produce will result in reversal only if the remark can be construed to refer to a defendant's actual failure to testify and not his failure to produce evidence. Banks v. State, 643 S.W.2d 129, 134-35 (Tex. Crim. App. 1982). Viewing the complained-of comment from the jury's standpoint, we conclude it was neither manifestly intended nor of such character as to be construed as a comment on appellant's failure to testify. Rather, the comment was directed at appellant's failure to present alibi witnesses. Cf. Cook v. State, 702 S.W.2d 597, 599 (Tex. Crim. App. 1984) (commenting on appellant's failure to present alibi defense improper because prosecutor referred to defendant in first person); Cherry v. State, 507 S.W.2d 549 (Tex. Crim. App. 1974) (same). Thus, appellant has not established a constitutional violation. We resolve the first and second issues against appellant. We affirm the trial court's judgment.