                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-07-00135-CR

TRENT ARCHIE,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 12th District Court
                              Walker County, Texas
                              Trial Court No. 22768


                                    OPINION


      A jury convicted Trent Archie of murder. The trial court sentenced him to forty

years in prison. On appeal, he challenges: (1) the denial of his motion for mistrial; (2)

the admission of testimony and evidence from a jailhouse informant; and (3) the legal

and factual sufficiency of the evidence. We reverse and remand.
                                      LEGAL SUFFICIENCY

        In issue three, Archie challenges the legal sufficiency of the evidence to support

his conviction.1

        Under legal sufficiency review, we determine whether, after viewing all the

evidence in the light most favorable to the verdict, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Curry v. State,

30 S.W.3d 394, 406 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19,

99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). We do not resolve any conflict of fact or

assign credibility to the witnesses, as this was the function of the trier of fact. See

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Adelman v. State, 828

S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim.

App. 1991). Inconsistencies in the evidence are resolved in favor of the verdict. Curry,

30 S.W.3d at 406; Matson, 819 S.W.2d at 843.

        Dixie Dean Willis, Jr., Archie’s co-defendant, testified that Archie wanted to steal

drugs and money from the victim, Anthony Williams. Willis testified that Archie was

in possession of a .12-gauge shotgun and planned to distract Williams while Willis went

inside to take the items. Archie promised to shoot Williams if he “gets tripping.”

Archie led the way to Williams’s home. Willis walked to the back of the house. He

suddenly heard a gunshot. He began running and Archie followed.




1         We first address Archie’s legal sufficiency challenge because it would afford him the greatest
relief if sustained. See Nickerson v. State, 69 S.W.3d 661, 668 (Tex. App.—Waco 2002 pet. ref’d); see also
Hernandez v. State, 268 S.W.3d 176, 178 (Tex. App.—Corpus Christi 2008, no pet.).


Archie v. State                                                                                    Page 2
         A few days later, Officer Jason Moore attempted to initiate a traffic stop of a

maroon Buick. The driver fled on foot. The vehicle belonged to Archie’s girlfriend.

Jessica James testified that she overheard Archie tell a group of men that he “just

canceled a guy in Huntsville through a window” because “he was moving in on my

turf.”    Willis’s girlfriend testified that he had confessed that he and Archie killed

someone. She and her roommate had found the shotgun hidden in a closet in their

home. Per Archie’s instructions, Willis buried the shotgun.

         Viewing the evidence in the light most favorable to the verdict, we conclude that

the jury could have found, beyond a reasonable doubt, that Archie committed the

offense of murder. See Curry, 30 S.W.3d at 406; see also Jackson, 443 U.S. at 318-19, 99 S.

Ct. at 2789. The evidence is legally sufficient to support Archie’s conviction.

                         COMMENT ON FAILURE TO TESTIFY

         In issue one, Archie contends that the trial court abused its discretion by denying

his motion for mistrial after the District Attorney commented on his failure to testify.

         During closing arguments at the guilt/innocence phase of trial, the District

Attorney reminded the jury about a note in which Archie stated that he heard

Williams’s girlfriend scream on the night of the offense.

         DISTRICT ATTORNEY: But the only person who heard her scream, the
         only person who said she screamed was Trent Archie…Do you still hear it
         Trent? Do you still hear her screaming? How do you know she screamed?

         DEFENSE COUNSEL: Your Honor, I object. I have to move for a mistrial.

         DISTRICT ATTORNEY: Because you were there that night.

         TRIAL COURT: Approach the bench.


Archie v. State                                                                       Page 3
        DEFENSE COUNSEL: Judge, I move for a mistrial. It’s an improper jury
        argument.

        TRIAL COURT: Sustained.

        DEFENSE COUNSEL: I’m going to ask that you -- in front of the jury,
        instruct Mr. Weeks to not ever -- to refrain from ever --

        TRIAL COURT: You can’t ask him questions.

        DISTRICT ATTORNEY: I didn’t. I’m making argument.

        TRIAL COURT: You can’t do that.

        DISTRICT ATTORNEY: Judge, I’ve done it before.

The trial court sustained the objection and ordered the jury to disregard the argument,

but denied Archie’s motion for mistrial. The trial court further instructed the District

Attorney not to engage in the argument again.

        At a hearing on Archie’s motion for new trial, defense counsel testified that,

when making the complained of argument, the prosecutor turned towards the defense

table, pointed, stepped towards Archie, and raised his voice. The district attorney has

never challenged the accuracy of this testimony or the description of the events that

occurred at trial.

                     Improper Comment on Archie’s Failure to Testify

        “A comment on an accused’s failure to testify violates the accused’s state and

federal constitutional privileges against self-incrimination.” Smith v. State, 65 S.W.3d

332, 339 (Tex. App.—Waco 2001, no pet.). A comment on a defendant’s failure to testify

arises where “the language used was manifestly intended or was of such a character



Archie v. State                                                                   Page 4
that the jury would necessarily and naturally take it as a comment on the defendant’s

failure to testify.” Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007).

        The State argues that the prosecutor’s argument was merely a rhetorical question

intended to respond to Archie’s attempts to distance himself from the offense and

discredit Willis. We disagree.

        Even a rhetorical question can become a comment on a failure to testify when

coupled with the lack of an explanation. See Wolfe v. State, 917 S.W.2d 270, 280 (Tex.

Crim. App. 1996). In Bird v. State, 527 S.W.2d 891 (Tex. Crim. App. 1975), during closing

arguments at the guilt stage of trial, the prosecutor looked at Bird and said, “Jerry Joe

Bird is a machinist and well capable of manufacturing such a thing [a gun silencer]. And if he

didn't manufacture it, where did you get it.” Bird, 527 S.W.2d at 893. In Hicks v. State, 525

S.W.2d 177 (Tex. Crim. App. 1975), the prosecutor stood behind Hicks, raised his voice,

looked at Hicks, and said, “But there is somebody that we haven't heard from in this

case. And I think you all know who it is.” Hicks, 525 S.W.2d at 178-79. In both cases,

the prosecutor’s argument, combined with physical actions, “was of such a character

that the jury would naturally and necessarily take it to be a comment on the appellant’s

failure to testify.” Bird, 527 S.W.2d at 894-95; see Hicks, 525 S.W.2d at 180.

        We conclude that the District Attorney’s argument in this case, coupled with his

physical actions, was of “such a character that the jury would naturally and necessarily

take it to be a comment on [Archie’s] failure to testify.” Bird, 527 S.W.2d at 894-95; see

Hicks, 525 S.W.2d at 180.




Archie v. State                                                                         Page 5
                                        Abuse of Discretion

        Because the trial court sustained Archie’s objection and granted his request for

an instruction to disregard, the “only adverse ruling - and thus the only occasion for

making a mistake - was the trial court’s denial of the motion for mistrial.” Hawkins v.

State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). Thus, “the proper issue is whether

the refusal to grant the mistrial was an abuse of discretion.”2 Id. at 77; see Archie v. State,

221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). We consider the: (1) severity of the

misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2)

measures adopted to cure the misconduct (the efficacy of any cautionary instruction by

the judge); and (3) certainty of conviction absent the misconduct (the strength of the

evidence supporting the conviction). Archie, 221 S.W.3d at 700; see Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998).

        “Prejudice is clearly the touchstone of the first factor.” Hawkins, 135 S.W.3d at 77.

In Brown v. State, 814 S.W.2d 477 (Tex. App.—Dallas 1991, pet. ref’d), the prosecutor

improperly commented on Brown’s failure to testify by arguing, “Well, we don't know

what he [] sounds like when he talks.” Brown, 814 S.W.2d at 478-79. The Dallas Court held

that the comment “tainted the guilt-innocence phase” and “improperly directed the

jury’s attention to Brown’s invocation of his right not to testify.” Id. at 480. The natural

and necessary implications of the prosecutor’s comments include (1) disrupting the

jury’s orderly evaluation of the evidence, (2) causing prejudice to the jury’s decision-


2       Although the parties address harmless error analysis, the issue before us is not whether the error
from the prosecutor’s improper argument was harmless. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.
Crim. App. 2004); see also Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007).


Archie v. State                                                                                    Page 6
making, and (3) denying Brown’s right to a fair and impartial trial. Id. The District

Attorney’s argument in this case was highly prejudicial for the same reasons.

        The trial court did, however, instruct the jury to disregard the argument and

included curative instructions in its jury charge. In Campbell v. State, 900 S.W.2d 763

(Tex App.—Waco 1995, no pet.), the prosecutor commented on Campbell’s failure to

testify by arguing “Everything puts this man in possession of this check. Explained?

Yes, it's explained. He hadn’t explained it, but we’ll explain it.” Campbell, 900 S.W.2d at

766. The trial court instructed the jury that:

        The law does not require a defendant to prove his innocence or produce
        any evidence at all. The presumption of innocence alone is sufficient to
        acquit the defendant unless the jurors are satisfied beyond a reasonable
        doubt of the defendant’s guilt after careful and impartial consideration of
        all evidence in the case. The prosecution has the burden of proving the
        defendant guilty and it must do so by proving each and every element of
        the offense charged beyond a reasonable doubt and if it fails to do so, you
        must acquit the defendant.

Id. at 769. Before voir dire, the trial court instructed the panel that any “comments

made by the attorneys would not be considered evidence.” Id. “[W]hen the court read

the instructions to the jury before they left to deliberate, the court instructed the jurors

only to consider evidence that had actually been admitted in their deliberations.” Id.

This Court held that these instructions adequately mitigated the harm caused by the

improper comment. See id.

        The trial court’s instructions in this case are virtually identical to those in

Campbell. In addition, the jury charge contains the following instruction:

        The United States and Texas Constitutions provide that a defendant may
        elect to not testify in his own behalf if he chooses. If the defendant has


Archie v. State                                                                       Page 7
        elected to not testify, you are instructed that you cannot and must not
        refer to or allude [to] that fact during your deliberations or take it into
        consideration for any purpose whatsoever as a circumstance against him.

        Nevertheless, “[m]istrial is the appropriate remedy when…the objectionable

events ‘are so emotionally inflammatory that curative instructions are not likely to

prevent the jury from being unfairly prejudiced against the defendant.’” Young v. State,

137 S.W.3d 65, 71 (Tex. Crim. App. 2004). The District Attorney called attention to the

absence of evidence that Archie alone could provide. See Patrick v. State, 906 S.W.2d

481, 491 (Tex. Crim. App. 1995) (“A remark that calls attention to the absence of

evidence which only the defendant could supply will result in reversal.”). The trial

court’s curative instructions were not likely to have prevented Archie from being

improperly prejudiced by the District Attorney’s argument.

        Additionally, the evidence in this case is not so strong that Archie would

necessarily have been convicted absent the District Attorney’s improper argument. See

Archie, 221 S.W.3d at 700. Willis was the only witness to the offense, but his credibility

had been impeached. Willis admitted that he lies a lot and lied to the police about the

murder. On cross-examination, defense counsel asked, “You’ve lied to the police 27

different times about 27 different events, is that correct?” Willis responded, “Yes, sir.”

He admitted that he was capable of making up stories and would do so to cover for

himself. Other than Willis’s testimony, the record contains no other direct evidence

establishing that Archie shot Anthony Williams with a firearm as alleged in the

indictment and the indirect evidence, while significant, was not overwhelming. The




Archie v. State                                                                       Page 8
prejudice stemming from the District Attorney’s improper argument is thus

emphasized by the nature of the State’s evidence.

        Accordingly, we conclude that the trial court abused its discretion by denying

Archie’s motion for mistrial. We sustain issue one and need not address Archie’s

remaining issues. See TEX. R. APP. P. 47.1. We reverse Archie’s conviction and remand

this cause to the trial court for further proceedings consistent with this opinion.



                                                        FELIPE REYNA
                                                        Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and remanded
Opinion delivered and filed December 16, 2009
Publish
[CRPM]




Archie v. State                                                                       Page 9
