HICKS v. STATE

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for statutory rape, where the punishment was assessed at life imprisonment by the court following a jury's verdict of guilty.

At the outset we are confronted with the complaint that the assistant district attorney improperly alluded to the failure of the appellant to testify. See Article 38.08, Vernon's Ann.C.C.P.1

During the argument of the prosecutor at the guilt stage of the trial, he stated, "I'll tell you what. You know that defendant sits over there, and he's had the benefit of this court appointed lawyer, and he has had the psychiatrist and he has had a couple of bites at the apple—you know that—."

Then shortly thereafter he argued:

For there to be reversible error because of an allusion to or comment on the failure of an accused to testify in his own behalf, the language used must be looked to from the standpoint of the jury, and the implication that language used had reference to such failure to testify must be a necessary one. Winkle v. State, 506 S.W.2d 891 (Tex.Cr.App.1974); Turner v. State, 504 S.W.2d 843 (Tex.Cr.App.1974); Yates v. State, 488 S.W.2d 463 (Tex.Cr.App.1972); Ramos v. State, 419 S.W.2d 359 (Tex.Cr. App.1967). Further, "[i]t is not sufficient that the language might be construed as an implied or indirect allusion thereto." Yates v. State, supra, at p. 466; Winkle v. State, supra; Turner v. State, supra.

In Garcia v. State, 513 S.W.2d 559, 561-562 (Tex.Cr.App.1974), a McLennan County case involving the same prosecutor as in the instant case, this court wrote, "It is asserted in appellant's brief that when the prosecutor said, `there is one person we didn't hear from in this trial,' he stood behind appellant, then when the objection was made, he said, `from defendant's mother.' If this occurred as appellant recited in his brief, it would doubtless be a direct reference to the failure of appellant to testify, but the record does not support the claim that the assistant district attorney stood behind appellant and thus directed his remarks to his failure to take the stand."

In the instant case the alert defense counsel stated for the purpose of the record that the prosecutor was standing behind the appellant when he raised his voice, looked down at the appellant and stated, "But there is somebody that we haven't heard from in this case. And I think you all know who it is."

This statement, made for the purpose of the record and recorded by the court reporter as to the prosecutor's physical actions, was undisputed by the prosecutor and unquestioned and unqualified by the court in whose presence the statement was made.

Article 40.09, subd. 4, Vernon's Ann.C. C.P., 1965, reads in part as follows:

The record was so certified by the court reporter.

There were no objections to the record and the court caused no hearing to be held in order that the record speak the truth. The record was approved by the trial court. Article 40.09, subd. 7, Vernon's Ann.C.C.P. And we note the State's brief does not contend that the event referred to did not occur.3

The State points out, however, that Dr. Jack Anderson, a psychiatrist who testified for the defense on the issue of insanity, related on cross-examination that the tracing of an electroencephalogram "run" on the appellant, to which he had referred on direct examination, had been read by Dr. Robert Stockton, a neurosurgeon. Dr. James Grigson, a State's rebuttal witness, testified that an electroencephalogram was useful but not essential to a proper diagnosis, that if he thought it was important he would talk to the doctor who interpreted it, that if Dr. Anderson had told him he (Anderson) didn't know how to interpret the tracing he would "want to hear from Dr. Stockton." Then the record on re-direct examination reflects:

While the State clearly has the right to comment upon the accused's failure to call a certain witness to support his defensive theory, Miller v. State, 458 S.W.2d 680 (Tex.Cr.App.1970); Joines v. State, 482 S.W.2d 205 (Tex.Cr.App.1972), this right may not be utilized in such a way that the prosecutor can improperly comment on the defendant's failure to testify and then excuse the same, upon objection, by stating he was referring to someone else. In the instant case the prosecutor stated, upon objection, he was referring to Dr. Stockton, while in Garcia the same prosecutor, upon objection, stated he was referring to the defendant's mother. Unlike Garcia, however, this record shows without dispute that when the complained of remark was made in the jury's presence the assistant district attorney was standing behind the appellant, raised his voice and looked down at the appellant.

The argument in conjunction with the prosecutor's physical actions was manifestly intended to be, and was, of such a character that the jury would naturally or necessarily take it as a comment on the failure of the appellant to testify. Chapman v. State, 504 S.W.2d 912 (Tex.Cr.App. 1974); Lipscomb v. State, 467 S.W.2d 417 (Tex.Cr.App.1971); Ramos v. State supra. This was a clear violation of Article 38.08, Vernon's Ann.C.C.P.

It is regrettable that a prosecutor would continue to engage in improper conduct depriving a defendant of a fair and impartial trial when such conduct is totally unnecessary to secure a conviction. See and compare Koller v. State, 518 S.W.2d 373 (Tex. Cr.App.1975) (reversed because of this same prosecutor's comments on the defendant's failure to testify), as well as Anderson v. State, 525 S.W.2d 20 (Tex.Cr.App.1975) (also reversed because of improper jury argument by this same prosecutor).

For the reasons stated, the judgment is reversed and remanded.

ROBERTS, Judge (concurring).

I agree that this conviction must be reversed, but I would hold that Article 40.09(4), Vernon's Ann.C.C.P., does not alone control our determination of the issue presented.

Appellant's counsel urged that the record should reflect The occurrence of certain observable events, which counsel described with specificity. On the basis of these events, which were part of the prosecutor's argument, counsel objected that the prosecutor was commenting on the appellant's failure to testify.

The prosecutor then urged that the record should reflect that he was talking about Dr. Stockton in his previous comments. This statement by the prosecutor was merely a self-serving statement of alleged intent; in no way did it dispute the statement of appellant's counsel that the observable events had in fact occurred.

The same is true of the trial court's comment, "I'll overrule your objection." This statement failed to dispute or deny the truth of the facts stated by defense counsel. Instead, it merely served to express the trial court's disagreement with counsel's assertion that the stated events were in fact objectionable.

The recitation of counsel thus stood unrebutted and unqualified by court or prosecutor, and hence in the same posture as it would have if neither had spoken.

I concur.

ODOM, Judge (concurring).

I concur in the reversal of this conviction, but take exception to the majority's reliance upon Article 40.09(4), V.A.C.C.P. That provision is authority for finding that counsel made the statement appearing in the record before us. It is not authority for finding that counsel's statement is an accurate statement of what occurred.

Although Article 40.09(4) is not authority for holding that counsel's statement for the record is accurate, I believe the statement itself must be taken as accurate because it was not qualified or disputed by the court or prosecutor, both of whom were in a position to view the occurrence and make a statement for the record of what did occur. If the proposition asserted by the dissent, that a statement "let the record reflect" not specially certified by the trial court shows nothing, is correct, then many cases would require reversal for insufficient evidence because of the widespread prosecutorial practice of having State's witnesses point at someone in the courtroom and the prosecutor then stating, "Let the record reflect the witness has identified the defendant."

The statement of the prosecutor in the instant case is not a qualification of the statement made by appellant's counsel. The prosecutor stated, "Let the record reflect that I was talking about the medical testimony, and Dr. Stockton, the man who took the EEG wasn't up here testifying in Court." If the prosecutor was attempting to show his intent or negate bad faith, his statement was not sufficient to do so. It did not contradict or conflict with appellant's statement of what acts occurred in open court. It was itself a statement of mental processes, and therefore could not constitute a recitation to preserve in the record acts occurring in open court and visible to all. The subjective intent is irrelevant; the test is whether the argument, by words and acts, is of such a character that the jury would naturally or necessarily perceive it as a comment on the failure of the accused to testify. Because the record in this case reflects that such an argument was made, I concur in the reversal of appellant's conviction.

MORRISON, Judge (dissenting).

I agree that the assertion that the prosecutor was standing behind the appellant and looking down at him is not supported by the record before us.

I would further point out that in our opinion in Salazar v. State, supra, on rehearing, we acknowledged that the exhibition of the scars had been made. This was based upon a statement in the record by the court that "the wounds had been shown to the jury."

I cannot agree with my Brother Onion that he has sufficiently distinguished Barrientez v. State, supra. I would hold that it is authoritative in the case at bar and, for that reason, I dissent to the reversal of this conviction.

DOUGLAS, Judge (dissenting).

The majority reverses this conviction on the ground that the prosecutor commented on the failure of the appellant to testify. To reach that conclusion, the majority has elevated an unsworn statement of counsel to the heights of evidence. Heretofore objections and allegations of counsel have not been self-proving.

The majority has in effect unseated the trial judge.

During closing argument, the assistant district attorney was discussing and sum marizing the testimony of the various witnesses and other evidence introduced during the course of the trial. The appellant, as a defense to the charge, had raised the issue of insanity and a Dr. Anderson testified as an expert witness for the defense. The record reflects the following:

But, anyway, he looks—you know—he is sitting over there—you know—we had Dr. Anderson—Dr. Anderson had that thing there, and he had his lawyer arguing to you and everything. But there is somebody that we haven't heard from in this case. And I think you all know who it is. (Emphasis Supplied).

The question is two-fold. First, it must be determined whether the assistant district attorney was In fact standing behind the appellant and looking at the appellant when he said "but there is somebody that we haven't heard from in this case. And I think you all know who it is." Second, if the record does not reflect those facts, did the comment examined from the standpoint of the jury necessarily refer to the appellant's failure to testify?

The two statements of the prosecutor that appellant "is sitting over there" would indicate that the prosecutor was not standing behind appellant when these statements were made.

There is just as much, or more, in the record to show that appellant was "sitting over there" as there is in the record to show that the prosecutor was standing behind the appellant.

Salazar v. State, 397 S.W.2d 220 (Tex.Cr. App.1965), is directly in point. Salazar in his trial for murder complained that the trial court allowed a State's witness to exhibit his body to the jury to show two bullet wounds which were received during the confrontation that resulted in the murder of the witness' brother. This Court wrote:

In the motion for rehearing the record was quoted. It showed that the judge certified that the wounds were exhibited to the jury.

In Wingate v. State, 487 S.W.2d 89 (Tex. Cr.App.1972), at page 92, we said:

In Barrientez v. State, 487 S.W.2d 97 (Tex.Cr.App.1972), the appellant contended that during the testimony of appellant the prosecutor began showing photographs to the jury which the judge had ruled inadmissible. This Court wrote:

What is the difference between the two cases? Does the majority take statements of some attorneys as true but not others? What is the guideline?

The occurrence of the event complained of must be reflected in the record by the court certifying it occurred, by evidence properly introduced in an informal bill of exception, at a hearing on the motion for new trial, through a formal or bystander's bill of exception, or through some certification by the trial judge that the events in fact occurred as alleged. See Hardin v. State, 471 S.W.2d 60 (Tex.Cr.App.1971); DeLeon v. State, 500 S.W.2d 862 (Tex.Cr. App.1973); Stockton v. State, 487 S.W.2d 69 (Tex.Cr.App.1972); Sheldon v. State, 510 S.W.2d 936 (Tex.Cr.App.1974); Mills v. State, 455 S.W.2d 296 (Tex.Cr.App.1970); Hall v. State, 466 S.W.2d 762 (Tex.Cr.App. 1971); Jefferson v. State, 490 S.W.2d 855 (Tex.Cr.App.1973); Barber v. State, 477 S.W.2d 868 (Tex.Cr.App.1972); Nutt v. State, 144 Tex.Cr.R. 9, 161 S.W.2d 103 (1942); and Stephen v. State, 163 Tex.Cr.R. 505, 293 S.W.2d 789 (1956). This is the same rule that applies to allegations in various motions such as motions for continuance and motions for new trials. Such allegations do not prove themselves. Absent any proof, nothing is presented to this Court for review. Webb v. State, 460 S.W.2d 903 (Tex.Cr.App.1970); Hardin v. State, 453 S.W.2d 156 (Tex.Cr.App.1970); and Hanna v. State, 159 Tex.Cr.R. 2, 259 S.W.2d 570 (1953). Holding otherwise would be contra to Article 40.09, Subdivision 6, V.A.C.C.P. See Nash v. State, 486 S.W.2d 561 (Tex.Cr.App.1972).

In the case at bar we have no evidence to substantiate defense counsel's unsworn allegations. There is no evidence to show how counsel and the appellant were seated. There was no testimony introduced, or even proffered, showing where Mr. Casey stood, how far he was from the appellant, exactly where he was looking, or his relationship with respect to the jury. Thus, there is nothing in the record presented to this Court to review other than the comments of Mr. Casey.

The trial judge heard the argument and the objection. He was in a better position to evaluate what occurred in his courtroom. We should not unseat the trial judge and substitute our opinion for his when we were not present in the courtroom. Who is in a better position to rule than the district judge? It is presumed that the trial judge ruled correctly until the contrary is shown.

It is difficult to understand the new holding by the majority that statements of counsel are verified as true. The statement in the concurring opinion that Article 40.09(4), V.A.C.C.P., is not authority for finding that counsel's statement is an accurate statement of what occurred is correct. But it is hard to understand the next sentence, "... the statement itself must be taken as accurate because it was not qualified or disputed by the court or prosecutor...."

It has always been the impression of this writer that the trial judge is not a litigant and is not representing a litigant. He is the judge. When he rules that ruling is presumed to be correct absent a showing to the contrary. In the present case, as in Ross v. State, Tex.Cr.App., 504 S.W.2d 862, the defense attorney could have asked the trial judge to certify to the correctness of his statement, if it were correct.

The judges concurring with the majority should review the statements of both attorneys. They are apparently in conflict. The judge settled the conflict when he ruled. Requiring the prosecutor to dispute an objection to defense counsel would be to detract from the decorum in the courtroom. This should not be encouraged.

To have the trial judge to dispute what defense counsel has stated would take away from the dignity of the court. Trial judges should not get into arguments with the attorneys. They should rule.

It has not been the practice before today for a trial judge to give reasons for his rulings. Reasons for a ruling may amount to a comment on the weight of the evidence or an opinion by the trial judge.

The new rule of today is that the trial judge must tell defense counsel his statement is not true or be reversed on appeal.

In this case, unlike Ross v. State, 504 S.W.2d 862 (Tex.Cr.App.1974), there were no statements by the trial judge ratifying the attorney's allegations. In Ross, the trial judge said: "Yes, sir...." without further clarifying remarks following a statement by defense counsel. This Court held that to be a ratification by the trial judge of the facts alleged by the defense attorney. In the instant case there was no such ratification.

The trial court's approval of the record when it is completed is not such a certification. It is certification only that all pages in the record "are true and correct copies of all proceedings, and of the court reporter's notes; and of all exhibits, as the same appear and are of record and on file in the above entitled and numbered cause, and said record is hereby approved." Article 40.09, V.A.C.C.P. See also Ticer v. State, 166 Tex.Cr.R. 334, 313 S.W.2d 301 (1958).

The approval of the record does not make the statements of the witnesses true even though the prosecutor or the court does not refute them.

Do Mr. Casey's statements in and of themselves amount to a comment on the appellant's failure to testify? Garcia v. State, 513 S.W.2d 559 (Tex.Cr.App.1974), controls. The State has a right to comment on the failure of the appellant to call certain witnesses to support his defensive theory. Here, as in Garcia, the prosecutor stated that he was referring to another witness. Dr. Stockton was mentioned during the testimony of the defense witness Dr. Anderson, but Dr. Stockton was never called. Mr. Casey, following appellant's objection, continued to discuss the testimony of Dr. Anderson and the failure of the defense to call Dr. Stockton. Thus, the argument refers to other witnesses and not the appellant and the language, used was not manifestly intended or of such character that the jury would naturally and necessarily take it to be a comment on the appellant's failure to testify. Beal v. State, 520 S.W.2d 907 (Tex. Cr.App.1975); Lipscomb v. State, 467 S.W.2d 417 (Tex.Cr.App.1971); Anderson v. State, 504 S.W.2d 507 (Tex.Cr.App.1974).

Further, even if the statement could be construed as such a comment, defense counsel first commented on appellant's failure to testify before the argument of the prosecutor. He argued concerning the presumption of insanity as follows:

Counsel asked the jurors to believe that appellant was insane from their observations of him "whether he takes the stand or not, through your looking at him." He was in effect telling the jury that his client was silent and even though he did not take the stand, they could use his appearance to find him insane and not guilty.

It has always been the rule that where counsel for accused refers to his failure to testify, it was not error for the prosecutor to comment thereon. See Slater v. State, 166 Tex.Cr.R. 606, 317 S.W.2d 203 (1958); and Meador v. State, 113 Tex.Cr.R. 357, 23 S.W.2d 382 (1929), and 1 Branch's Ann.P. C.2d, Section 395, page 414.

Following the majority of this Court, when a defendant represents himself, a statement, "Let the record reflect", followed by his version of what happens in the courtroom will be taken as true. An example of what will be taken as true is found in State v. Townes, 522 S.W.2d 22 (Mo.Ct.App. 1975). Townes, the defendant, questioned the jury panel personally. He informed the prospective jurors that he was a Black Muslim and, like other Muslims, felt that all white people were devils. After some discussion with the court, Townes stated:

According to Townes, only three prospective jurors refuted the statement that they were devils. Under the reasoning of the majority, the statement that the other prospective jurors were devils would have to be taken as true.

In the trial of the Chicago Eight, the defendants apparently tried to take over the courtroom. See United States v. Seale, 461 F.2d 345 (7th Cir.1972). Bobby Seale, one of the defendants who had previously informed the court that he was representing himself stated that he wanted to cross-examine a witness, William Frapolly, and the following occurred:

Under the opinion reversing the conviction a trial judge or prosecutor must refute such statements or they will be taken as true. It is a sad state of affairs when this Court requires a trial judge to get into a swearing match with litigants or attorneys.

Recently the Supreme Court of the United States held that a defendant has a right to represent himself and counsel cannot be forced upon him. See Faretta v. California, ___ U.S. ___, 95 S.Ct. 2525, 45 L.Ed.2d 562. When some defendants, especially those who would like to destroy our system of government, defend themselves, every conceivable statement accusing the judge and prosecutor of misconduct will be made. Gutter-type tactics will be used. The majority would require the trial judge to answer them or get on their level.

We should not require trial judges to get into swearing matches with militant or other obstreperous defendants. This has never been the rule before and should not be now.

The defendant who claims something happened should ask the judge to certify to that fact. If it happened and the judge refuses to so certify, a defendant may prove the occurrence by a bystander's bill of exception.

No reversible error has been shown. The judgment should be affirmed.