ARMSTRONG v. STATE

OPINION

GREEN, Commissioner.

This is an appeal from a conviction for murder with malice. The jury assessed punishment at death.

The record reflects that at about 4:30 P.M. on September 16, 1970, two black males attempted to rob a Gulf Service Station located at the intersection of Erving Street and Clarendon Street in Dallas. During the course of the attempted robbery, two witnesses observed one of the robbers shoot the operator of the service station and saw the robbers flee the scene of the crime.

The State introduced two witnesses, acquaintances of appellant, who testified that appellant admitted to them that he had shot a man while he was trying to rob a service station. As a result of appellant's admission to the witnesses, the weapon, a sawed-off shotgun, was found concealed in a weeded area near the home of one of the witnesses.

Following appellant's arrest on September 19, 1970, appellant made a written statement admitting that he shot deceased but that the shooting was in self-defense. A Jackson-Denno hearing was held by the court on the voluntariness of appellant's statement. The court found that the statement was voluntarily made following proper warnings and the trial judge admitted the statement into evidence.

Neither the voluntariness of the aforementioned statement nor the sufficiency of the evidence is challenged.

Appellant first contends that the imposition of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. The death penalty was declared unconstitutional by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, and Branch v. Texas, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. However, subsequent to the Supreme Court's opinion, appellant's sentence was commuted to life imprisonment by order of the Governor of Texas. On December 29, 1972, appellant was resentenced by the trial court to life imprisonment.

In Stultz v. State, Tex.Cr.App., 500 S.W.2d 853, we again decided that this question is moot. See Whan v. State, Tex.Cr. App., 485 S.W.2d 275; Antwine v. State, Tex.Cr.App., 486 S.W.2d 578; Hall v. State, Tex.Cr.App., 488 S.W.2d 94.

Appellant's first ground of error is overruled.

Appellant's second ground of error is quoted as follows:

The record reflects that during the course of the prosecutor's closing argument to the jury, appellant's attorney advised the court that appellant wished to make an argument to the jury on his own behalf. The court interrupted the prosecutor's argument and appellant was permitted to argue his case before the jury with admonishment by the court that he could only argue from the testimony. Following appellant's argument, the prosecutor continued his closing summation to the jury during which the prosecutor made the following remarks:

Article 38.08, V.A.C.C.P., prohibits comment on an accused's right to remain silent and his failure to testify. But for the court to find that there was such a comment, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the defendant's failure to testify must be a necessary one. It is not sufficient that the language might be construed on an implied or indirect allusion thereto. Ramos v. State, Tex.Cr.App., 419 S.W.2d 359. See also Hardy v. State, Tex.Cr. App., 496 S.W.2d 635; Ford v. State, Tex.Cr.App., 477 S.W.2d 27; Lipscomb v. State, Tex.Cr.App., 467 S.W.2d 417.

In Meyer v. State, Tex.Cr.App., 416 S.W.2d 415, the prosecutor argued that:

This court held that since the prosecutor was referring to counsel, not the appellant, it was not a comment on the accused's failure to testify.

In Lipscomb v. State, supra, the prosecutor argued as follows:

Similarly we held that in the aforementioned argument, the prosecutor was referring to counsel and there was no allusion to appellant. See Jackson v. State, Tex. Cr.App., 501 S.W.2d 660.

In the case at bar, we are faced with a unique situation in that appellant pro se engaged in final argument to the jury. Unlike Lipscomb v. State, supra, the prosecutor was referring to appellant, not his counsel, but appellant was acting pro se and assumed the role of counsel. The record reflects that during the course of appellant's pro se argument appellant mentioned several matters outside the record. The prosecutor was in the process of responding to appellant's argument outside the record when the complained of argument occurred.

While the statement is made that appellant never said that "he didn't do it," no facts are stated as to make it appear that this was a reference to his failure to testify. In reading the complained of argument, we conclude that the prosecuting attorney was referring to appellant's activities during his pro se argument. See Meyer v. State, supra.

Finally, assuming arguendo that the continuing argument of the prosecutor was error, the trial court sustained appellant's counsel's objections and instructed the jury to disregard the argument. While a mistrial was not granted, the court's charge further instructed the jury not to consider appellant's failure to testify. In light of the instructions and considering all the evidence in view of Ramos v. State, supra, we construe the argument in the case at bar to be harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Fontaine v. California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968); Ford v. State, Tex.Cr.App., 477 S.W.2d 27.

Appellant's second ground of error is overruled.

Appellant's remaining contention is as follows:

In the instant case, appellant did not raise the issue of insanity. During the punishment phase of the trial, appellant's mother and sister testified that they believed appellant could be rehabilitated. In rebuttal, the State called Dr. Grigson, a psychiatrist, to testify over the objections raised in the above mentioned ground of error. Dr. Grigson testified that appellant had not been insane and was not insane at the time of trial. Grigson further stated that appellant had a severe sociopathic personality disorder.3 It was Grigson's conclusion that sociopaths like appellant could not be rehabilitated by incarceration.

Relying on Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), appellant argues that a psychiatric examination constitutes a "critical stage" of a criminal proceeding at which an accused is entitled to the presence and assistance of counsel. We have recently decided this issue adverse to appellant.

In Stultz v. State, 500 S.W.2d 853, appellant presented the precise constitutional claims based on the Fifth Amendment privilege against self-incrimination and the Sixth Amendment's guarantee of the right to counsel. In holding the claim to be without merit this Court, speaking through Judge Douglas, stated:

See also Blankenship v. State, Tex.Cr.App., 432 S.W.2d 945; United States v. Williams, 456 F.2d 217 (5th Cir. 1972).

We held in Stultz, supra, that the trial court did not err in admitting the testimony of the expert medical witnesses on the issue of insanity based on their examinations of the appellant conducted without the assistance of his counsel.

While the issue of insanity was raised in Stultz, supra, and two psychiatrists and a psychologist testified concerning the results of the defendant's mental examination, the fact that the defense of insanity was not relied on by appellant is not dispositive of the instant case. Appellant offered testimony that he was capable of being rehabilitated. Therefore, he is not in a position to complain if the State elicits information in rebuttal of the same issue. See Armstrong v. State, Tex.Cr. App., 476 S.W.2d 703; Frison v. State, Tex.Cr.App., 473 S.W.2d 479.

Appellant's third ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.