

                                                            COURT OF
APPEALS
                                                    EIGHTH DISTRICT
OF TEXAS
                                                               EL
PASO, TEXAS
 
VICTOR BUSTAMANTE,                                   )
                                                                              )               No.  08-97-00008-CR
Appellant,                          )
                                                                              )                    Appeal from the
v.                                                                           )
                                                                              )                
243rd District Court
THE STATE OF TEXAS,                                     )
                                                                              )           
of El Paso County, Texas
Appellee.                           )
                                                                              )                
(TC# 960D08655)
                                                                              )
 
OPINION   ON  
REMAND
 
Appellant was
sentenced to 29 years=
and 6 months=
imprisonment in the Institutional Division of the Department of
Corrections.  In our opinion dated
September 23, 1999, we sustained one of the six issues brought before us and
reversed and remanded for a new trial. 
The Texas Court of Criminal Appeals granted the State=s petition for discretionary review to
determine whether we had erred in failing to apply  McCarron
v. State, 605 S.W.2d 589 (Tex.Crim.App. 1980) to
comments made by trial judges.  The Court
of Criminal Appeals held on June 13, 2001, that our conclusion that McCarron was a bright-line rule that did not apply
to judges was error.  The Court also
noted that A[a]
statement can be a comment on the defendant=s
failure to testify even if it is made before the defendant rests his case.@ 
Bustamante v. State, 48 S.W.3d
761, 767 (Tex.Crim.App. 2001)




On remand, we have
again considered the record, and guided by Bustamante,
we again conclude that trial court erred in failing to grant a motion for
mistrial because of the trial court=s
comments on the defendant=s
failure to testify.  Ibid  We reverse and remand for a new
trial.  
Appellant was
convicted of murder for the shotgun shooting death of David Avelar
in the early morning hours of July 5, 1996. 
Avelar and a friend were returning from a
store at approximately 2 a.m.  Their
route took them past Appellant=s
house.  Appellant was standing in his
front yard, and an argument broke out between him and Avelar.  Appellant asked Avelar
and his friend to leave, and then shot Avelar.  Appellant asked that the jury be charged on
several defensive theories: 
self-defense; apparent danger; mistake of fact; and intervening cause of
death.  All but the intervening cause of
death instruction were refused.
Appellant brought
six issues, but again because our determination of the appeal turns on issue
two, we decline to address the remaining issues.  Appellant contends in his second issue that
the trial court erred in failing to grant his motion for a mistrial because the
judge commented on the defendant=s
failure to testify.  While the defense
was conducting its cross-examination of Antonio Medrano, a deputy sheriff for
El Paso County, who searched and arrested Appellant, the following exchange
took place[1]:
Defense
1:        What sort of gangs are out
there?
 
Prosecutor:       Your Honor, I=m
going to again object to relevance.  He
has yet to establish anything that relates to anything.
 
Defense
1:        It=s
going to the state of mind of the defendant.
 
The
Court:        Well, as soon as I hear
the defendant, we=ll get into it.




Prosecutor:       Then he can put his client on the stand
and have him testify.
 
Defense
2:        Objection.  [Emphasis added].
 
At this point the parties
approached the bench and held this discussion out of the hearing 
 
of the jury:
 
Defense
1:        Judge, at this time, I=d object to the Court making a comment
on the defendant=s rights
in front of the jury, Fifth Amendment right, Constitutional right.  I object to the Court doing that.
I would ask--first of all, I=d like a ruling on that.
 
Defense
2:        The Court was speaking to the
prosecutor.
 
Defense
1:        No, it doesn=t matter.  The judge mentioned in front of the jury
that:  Once I hear from the defendant,
then we=ll get into it.
 
The
Court:        That=s true.  [Emphasis added].
 
The court sustained the objection, and gave the following
curative instruction:
 
The
Court:        The jury is instructed to
disregard any comment I made regarding the issue regarding the gang relevance
after we hear from the defendant, that I may have said or the prosecutor may
have said.  [Emphasis added].
 
Appellant moved for a mistrial at
this time and at the close of the State=s
evidence.  The motion was denied both
times.




Generally, a
comment on the defendant=s
failure to testify violates the privilege against self‑incrimination
contained in the Fifth Amendment to the United States and Article I, ' 10 of the Texas Constitution.  See U.S. Const.
art. V; Tex.Const. art. I, ' 10.  Thus, any error in this area is subject to
the harm analysis of Rule 44.2(a) of the Rules of Appellate Procedure.  See Tex.R.App.P. 44.2(a).  Under this rule, an appellate court must
reverse the conviction if it cannot determine beyond a reasonable doubt that
the error did not contribute to the conviction or the punishment.
Comparison of  the comments here with the cases cited in Bustamante, cause us to remain convinced that the
trial courts comments were such that the jury would necessarily and naturally
take it as a comment on the defendant=s
failure testify.  The comment was a
direct reference on the accused=s
right against self-incrimination, and also implies that any evidence that
related to the accused=s
state of mind is not of any consequence until the defendant takes the
stand.  The error was compounded when the
prosecutor immediately responds, AThen
he can put his client on the stand and have him testify.@  This only served to reinforce in the jury=s mind that the defendant should
testify about what happened.
It is evident that
the trial judge realized that he had unintentionally made an improper comment
and he sustained the defense objection to his own comment.  But, in trying to cure the improper comment,
the trial court actually compounded the error as the instruction itself is
another comment on the defendant=s
failure to testify.  The judge instructs
the jury to disregard his comment on the defendant=s
failure to testify by stating:  AThe jury is instructed to disregard any
comment I made regarding the issue regarding the gang relevance after we
hear from the defendant, that I may have said or the prosecutor may have
said.@  [Emphasis added].  He instructs the jury to disregard the
comment about gang relevance, which was a comment made by the prosecutor.  The only mention of the defendant=s right not to testify is a
comment that still refers to the Agang
relevance@ after
the defendant testifies.  We find
that this instruction could only have the effect of further conveying to the
jury that the defendant was obliged to testify in order to mount any defense to
the crime with which he was charged. 
This instruction is not specific to the comment and does nothing to
mitigate its effect.




In looking at the
comment in light of the entire record, we cannot say beyond a reasonable doubt
that these comments did not contribute to the conviction or punishment in this
case.  The witness that was with David Avelar at the scene, Arturo Chavez, was the State=s main witness.  His testimony is often contradictory (i.e.-at
what point in time his wife arrived at the scene, where Bustamante
was standing, where Avelar was standing).  Additionally, there was testimony that Avelar was a drug user and fairly heavy drinker.  Although the doctors who testified in the
case were of the opinion that Avelar died as a result
of his gunshot wounds, the State=s
witness, Dr. Contin, conceded that a combination of
the types of drugs Alvelar had present in his system
could kill someone.  There was also a
written report that indicated that a cocaine overdose could have caused severe
brain injury.  However, the jury still
found Bustamante guilty and sentenced him to a
lengthy prison term.
For the foregoing
reasons, we sustain Appellant=s
second issue and we reverse the conviction and remand the case to the trial
court for a new trial.
 
 
July
31 , 2002
DAVID WELLINGTON
CHEW, Justice
 
Before Panel No. 3
Barajas, C.J., Larsen, and Chew, JJ.
 
(Publish)




[1]
Appellant was represented by two attorneys at trial.


