Yates v. State

Full title: MELVIN LEWIS YATES, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 19, 2005

Nos. 05-04-01063-CR, 05-04-01064-CR, 05-04-01065-CR, 05-04-01066-CR, 05-04-01067-CR (Tex. App. Aug. 19, 2005)

Opinion

Nos. 05-04-01063-CR, 05-04-01064-CR, 05-04-01065-CR, 05-04-01066-CR, 05-04-01067-CR

Opinion Filed August 19, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-41745-N, F03-41746-N, F03-58146-N, F04-71061-N, F04-71542-N. Affirmed.

Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.

MEMORANDUM OPINION

Opinion By Justice MOSELEY.

Melvin Lewis Yates pleaded guilty to aggravated assault with a deadly weapon (two counts), unauthorized use of a motor vehicle, aggravated robbery, and robbery. There was no plea bargain agreement. The jury assessed punishment at six years' confinement each for the aggravated assault with a deadly weapon and robbery charges, eighteen months' confinement for unauthorized use of a motor vehicle, and 27 years' confinement for the aggravated robbery offense. Yates appeals, asserting as his sole point that the trial court erred by overruling his objection to the State's closing argument, which he characterizes as commenting on his failure to testify. The background of the cases and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgments. Sonya McCall Yates, appellant's wife, testified appellant had shown remorse for his offenses:

Yes, he did wrong. He cried-he calls me crying. He apologized, he wrote letters. I mean, if he had the victim's address, he would have wrote and apologized. He apologizes to me and my son. We already forgave him.

In closing argument, the State made the following argument:

MR. BIRMINGHAM: You know, the other thing that we never heard in Mr. King's [defense counsel] argument, really, throughout the trial is he's sorry for what he did.

MR. KING: We're going to object to that. It's a comment on failure to testify.

MR. BIRMINGHAM: He never told Sonya.

MR. KING: Excuse me, Your Honor, may I have a ruling on my objection?

THE COURT: Overruled.

To constitute a comment on the defendant's failure to testify, it is insufficient that the jury might have inferred the prosecutor alluded to the failure to testify; the language used must make the inference necessary. Eastep v. State, 919 S.W.2d 151, 154 (Tex.App.-Dallas 1996), aff'd on other grounds, 941 S.W.2d 130 (Tex.Crim.App. 1997), overruled by Riney v. State, 28 S.W.3d 561 (Tex.Crim.App. 2000). A comment that calls the jury's attention to the absence of evidence which only the defendant can supply is reversible. Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App. 1995). However, if the comment can reasonably be construed to refer to the defendant's failure to produce evidence other than his own testimony, it is not improper. Id. In the present case, the prosecutor's comment expressly referred to defense counsel's argument directly, and in passing to the evidence adduced in the case. The comment could be construed as referring to appellant's failure to express his remorse-i.e. to take the stand and testify that he was sorry for his actions. However, it could be construed as referring to defense counsel's failure to argue remorse; it could also refer to Sonya's testimony, arguing that her statement that appellant had expressed remorse to her was not credible. Because the prosecutor's comments did not compel the inference that the prosecutor was referring to appellant's failure to testify, the trial court did not err by overruling appellant's objection. See Eastep, 919 S.W.2d at 154. Moreover, even if the trial court erred in overruling appellant's objection, the record must show the error was reversible; even constitutional error is not reversible if we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex.R.App.P. 44.2(a). Here the trial court, at the conclusion of the evidence, instructed the jury as follows:

A defendant may testify in his own behalf if he elects to do so. This is a privilege accorded a defendant, but in the event he elects not to testify that fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to testify and you are instructed that you cannot and must not refer or allude to that fact during your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.

Here guilt was not at issue-appellant had pleaded guilty and was going to the jury for punishment only. After making the above comment, the prosecutor did not allude further to the issue. Also, the jury's verdict imposed less than the maximum sentences available for each offense. In light of these facts and the above instruction, we conclude beyond a reasonable doubt that any error did not contribute to the conviction or punishment. See id. We overrule appellant's issue and affirm the judgments of the trial court.