No. 05-01-00335-CR.
Opinion Filed January 14, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F01-00211-RH. AFFIRMED.
Before Chief Justice THOMAS, JUSTICES RICHTER, and HADDEN.
The Honorable Roby Hadden, Former Judge, Twelfth Court of Appeals, Tyler, Texas, sitting by assignment.
Opinion By Justice HADDEN
A jury found Juan Carlos Ramirez guilty of aggravated robbery. Appellant pleaded true to one enhancement paragraph, and the jury assessed punishment at forty-five years confinement and a $10,000 fine. In one issue, appellant asserts the trial court erred in overruling his objection to the prosecutor's comment on appellant's failure to testify. We affirm.
Background
On the afternoon of December 28, 1999, the complainant Ilcia Gonzalez (Gonzalez), was leaving a laundromat. Appellant approached Gonzalez, pointed a gun at her, demanded her car keys, and ordered her to get out of her car. Gonzalez complied. Appellant got in the car, picked up a person waiting nearby, and drove away. Two days later, Gonzalez saw appellant driving her car near the laundromat. She flagged down a police officer who was able to recover her vehicle and detain appellant. Two passengers were with appellant in the vehicle. At the scene, Gonzalez identified appellant as the person who had robbed her of her vehicle at gunpoint. She also identified one of the passengers as the person who was waiting nearby when appellant took her vehicle. The police found a gun underneath the passenger-side floor mat and arrested appellant. At trial, Gonzalez identified appellant as the person who robbed her at gunpoint. She also testified that the gun found in her car was similar to the one appellant used in the robbery. Appellant did not testify nor did he present any defense testimony or witnesses. During closing arguments the prosecutor made the following argument to which appellant objected: [Prosecutor]: She was telling you she looked him right in the eye. She told you that was the person who robbed her. The gun was in the car. He was in the car and nobody else was here to tell you that he isn't the person who robbed her.
If he borrowed the car from somebody and miraculously ended up in his possession, and has no earthly idea where the car came from, there was no evidence of that. [Defense Attorney]: Your Honor, that's a direct reflection of failure to testify.
[The Court]: Overruled.
[Prosecutor]: Nobody came to say that.
At the conclusion of the trial, the jury found appellant guilty. Following a punishment hearing, the jury assessed punishment at forty-five years confinement and a $10,000 fine. This appeal followed. Analysis
In his sole point of error, appellant asserts the trial court erred in overruling appellant's objection to the prosecutor's statement. Appellant complains the prosecutor's statement that there was no evidence appellant had borrowed the car and had "no earthly idea" where the car came from, when viewed from the jury's standpoint, clearly implicated appellant's failure to testify because only appellant would know what "earthly idea" he had regarding where the car came from. Appellant argues the prosecutor's comment directly focused the jury's attention on appellant's "idea," which could only have been supplied through appellant's own testimony. The State responds that the prosecutor's argument was not a comment on the appellant's failure to testify but a proper summation of the evidence and a proper answer to appellant's argument. A comment on the defendant's failure to testify violates the privilege against self-incrimination. See U.S. Const. amend. V; Tex. Const. art I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979). To determine if an argument impermissibly referred to an accused's failure to testify, a reviewing court views the language from the jury's standpoint to determine if the comment was manifestly intended 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. See Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001). A comment referencing the defendant's failure to testify must be clear; an implied or indirect allusion is not considered a comment on the defendant's failure to testify. See id. In applying this test, we analyze the comment in the context in which it was made to determine whether the language used was of such a character. See 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 the defendant's actual failure to testify and not his failure to produce any evidence. See Banks v. State, 643 S.W.2d 129, 134-35 (Tex.Crim. App. 1982). In this case appellant, challenged Gonzalez's ability to identify appellant as the person who robbed her of her vehicle. During a preliminary identification hearing outside the jury's presence Gonzalez had difficultly identifying appellant as the robber. However, during the trial before the jury she testified she was sure appellant was the person who robbed her of her car. Appellant used the transcript of the identification hearing to impeach Gonzalez. Gonzalez also testified before the jury that she recognized appellant as the robber even though the robber had worn a hat during the robbery and appellant was wearing sunglasses when she saw him driving her car two days later. Based on this testimony, appellant raised the issue that Gonzalez had misidentified appellant as the person who robbed her. In closing arguments, defense counsel attacked the State's case by arguing, "Nobody is saying that [appellant] is an angel in this Court. And I don't know what he was doing in that car two days later. But I submit to you the State has not proven beyond any reasonable doubt that [appellant] was the same man who robbed her." The State contends that because the appellant suggested someone other than appellant robbed Gonzalez, the prosecutor's statement referring to Gonzalez's testimony was a proper summation of the evidence that appellant was the robber. We agree. Proper jury argument includes a summation of the evidence and an answer to opponent counsel's argument. Gaddis v. State, 753 S.W.2d 396, 398 (Tex Crim. App. 1988). Here, the prosecutor simply reminded the jury of Gonzalez's testimony that appellant was the robber and there was no evidence to support appellant's theory that someone else was the robber and that appellant just happened to be driving Gonzalez's car two days later. See Doty v. State, 820 S.W.2d 918, 923-24 (Tex.App.-Fort Worth 1991, pet. ref'd) (finding prosecutor's comment that if there was any evidence to support defendant's theory, "don't you think they might have brought it to you," was a summation of the evidence and not an impermissible reference to defendant's failure to testify); see also Jones v. State, 863 S.W.2d 254, 257 (Tex.App.-Beaumont 1993, pet. ref'd) (concluding prosecutor's comment that there was "no evidence of self-defense" was merely a summation of the evidence and not a reference to the defendant's failure to testify). Moreover, there was at least one other person who could have testified on appellant's behalf — the who was picked up when the car was taken and who was with appellant in the car when the police recovered the vehicle. The jury could have viewed the prosecutor's comment "nobody else was here to tell you" as a reference to appellant's failure to present that witness on his behalf and not his own failure to testify. See Swallow v. State, 829 S.W.2d 223, 225 (Tex Crim. App. 1992) (a reference to a defendant's failure to introduce evidence through other witnesses does not constitute a comment on the defendant's failure to testify). The State also contends the prosecutor's comments were proper rebuttal to defense counsel's closing argument. Again we agree. In closing argument, defense counsel advanced the theory that someone else robbed Gonzalez of her car and appellant just happened to be driving it two days later. The prosecutor's argument in response reminded the jury there was no testimony to support that theory. Such a response in rebuttal was, therefore, in the realm of proper jury argument. See McKay v. State, 707 S.W.2d 23, 37 (Tex.Crim.App. 1985) (concluding prosecutor's statement that "there is no evidence to that effect" and "there is no evidence of any phantom [killer]" was not improper reference to defendant's failure to testify but was invited by counsel's argument that someone else committed the murder). We conclude the prosecutor's comments were proper summation of the evidence and a proper answer to appellant's argument. Further, viewing the complained-of comment from the jury's standpoint, we conclude the language used was neither manifestly intended nor was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. We overrule appellant's sole issue. We affirm the trial court's judgment.