Opinion
No. 05-01-01050-CR.
Opinion Filed March 24, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F00-54045-MKH. AFFIRMED.
OPINION
A jury found Nazree Brooks guilty of burglary of a building. Appellant pleaded true to two enhancement paragraphs, and the jury assessed punishment at twenty years' confinement and a $5,000 fine. In one issue, appellant asserts the trial court erred in overruling his objection to a certain portion of the prosecutor's closing argument. We affirm.
BACKGROUND
On September 25, 2000, appellant and two other men burglarized a storeroom in a Dallas apartment complex. They took hand tools, drills, and a weed eater, then split up the property and sold it. The next day, appellant asked one of the two men, Kelvin Lang ("Lang"), to accompany him to the same complex for the same purpose, but Lang declined. Appellant, nevertheless, again entered the storeroom and returned with additional property, including a carpet machine and a bag of tools. A tenant in the complex saw the second burglary take place and notified the building manager. While searching the neighborhood, the manager and the eyewitness found appellant and Lang at a nearby store with some of the stolen items. The police were alerted and, after investigating, arrested appellant and Lang. At trial, Lang testified and described appellant's involvement in the burglaries. The tenant identified appellant as the person he saw come out of the storeroom carrying some of the items. The manager testified the items belonged to him and stated appellant was not authorized to take them. Appellant chose not to testify, and he did not present any direct evidence in his defense. However, defense counsel attacked Lang's credibility. Lang admitted his own involvement in the burglaries and his past criminal record. He also admitted he had planned to lie about the burglaries, but he changed his mind and entered into a plea bargain arrangement with the State whereby he agreed to testify against appellant in return for a two-year sentence. During closing arguments on guilt-innocence, the prosecutor made the following comments to which appellant objected: PROSECUTOR:Mr. Lang came in here. Mr. Lang told you I made a deal to tell the truth. That's absolutely what he said. He said yeah, when I came in I had — Mr. Brooks is doing now. I came in and I was going to lie.DEFENSE ATTORNEY:
We object to that comment as a comment on the Defendant's right to remain silent, Your Honor.THE COURT: Well, overruled. I believe that was a quote from the witness. In his sole point of error, appellant asserts the trial court erred in overruling his objection to the prosecutor's comment described above.
WAIVER
The State asserts that any error was waived because appellant's objection at trial does not comport with his complaint on appeal as required by rule 33.1(a) of the rules of appellate procedure. See Tex. R. App. P. 33.1(a). The State argues that, at trial, appellant objected to the prosecutor's comment on his "right to remain silent," whereas on appeal he complains the prosecutor commented on appellant's "failure to testify." The record does not support this argument. Appellant's objection at trial and his allegation on appeal are the same, that is, that the prosecutor improperly commented on appellant's right to remain silent. We see no inconsistency in asserting the prosecutor improperly commented on appellant's right to remain silent and then supporting that assertion by arguing the prosecutor improperly commented on appellant's failure to testify. The State has failed to explain how this is inconsistent and has failed to support its position with any authority. We conclude appellant's complaint on appeal comports with his trial objection and, thus, error was not waived.ANALYSIS
The State next contends that, even if error was not waived, the prosecutor did not improperly comment on appellant's failure to testify. Appellant argues that the comment, viewed from the jury's standpoint, clearly referred to appellant's failure to testify. 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 and looks to see 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. 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, the context in which the comment was made must be analyzed to determine whether the language used was of such a character. See id. Here, the prosecutor was discussing Lang's testimony that he (Lang) was telling the truth although he originally planned to lie to the jury about the burglary. Then the prosecutor added, "just like Mr. Brooks is doing now," which suggested that appellant was lying in this case. Analyzing the context of the comment, it is not clear that the prosecutor was referring to appellant's failure to testify. The prosecutor could not have intended to refer to any testimony given by appellant because appellant did not testify. The prosecutor could have been referring to the testimony of the eyewitness who testified that appellant, when confronted at the store with the stolen goods, essentially told him that he was not in the storage room. Even if the prosecutor's comment was an implied allusion to appellant's failure to testify, it cannot be considered a clear comment on his failure to testify. The State also argues the comment was proper as a reasonable response to the argument of opposing counsel. We agree. Proper jury argument includes an answer to opposing counsel's argument. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988). The record shows that when the apartment manager and the eyewitness confronted appellant and Lang at the nearby store, appellant stated to the eyewitness, "You didn't see me in there, I'm going to get you, you didn't see me in there, you didn't see me in there." Then, during closing argument defense counsel, apparently referring to this evidence, made the following statement to the jury:And so Mr. Brooks has been sitting in jail, just like from the very start, he was obstinate, he said not guilty. He said you didn't see me in there. Maybe his way of communicating was offensive to the people out there. But he said from the very start, every time he had a chance that came through this evidence you heard in this trial. You didn't see me in there.Thus, the defense counsel was using the appellant's plea of not guilty, his obstinacy, and his out-of-court statements to argue that appellant did not commit the burglary. In his rebuttal, the prosecutor responded with the complained-of statement, arguing that Lang was telling the truth and appellant was not. The jury could have reasonably understood that the prosecutor's comment was in response to the argument of defense counsel which included appellant's exculpatory, out-of-court statements to the eyewitness. Thus, we conclude that the comment of the prosecutor was within the realm of proper jury argument.