Dissenting opinion issued November 8, 2012




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                         ————————————
                             NO. 01-11-00350-CR
                           ———————————
                   BARRINGTON THOMPSON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee




                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Case No. 1290502



                         DISSENTING OPINION

      Although I agree that the trial court erred in overruling Mr. Thompson’s

objection to the State’s closing argument, I disagree that the error was harmless
and, because I would reverse and remand on that basis, I respectfully dissent.

      Constitutional harm analysis under Snowden requires us to take every

circumstance apparent in the record that logically informs our constitutional error

analysis into account. See Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim.

App. 2011). Here, those circumstances dovetail with the remaining Harris factors

that the Snowden court deemed appropriate for appellate consideration. Snowden,

353 S.W.3d at 821–22 (discussing Harris v. State, 790 S.W.2d 568, 587–88 (Tex.

Crim. App. 1989)).

      Although the State’s comment on Thompson’s failure to testify was indirect,

made with no apparent animus, and possibly mitigated by the jury instructions, it

nevertheless emphasized to the jury Mr. Thompson’s failure to testify on a topic

that he alone was in a position to know: his intent. After the court overruled

Thompson’s objection, although the prosecutor stepped it back from Mr.

Thompson’s failure to testify, he continued to keep the jury’s focus upon this issue

of Thompson’s intent by then urging the jurors to look to the circumstantial

evidence for proof of intent.

      As to the weight a juror might place upon the error, I would note that the

trial testimony revealed that only two persons were present at the time of the

offense: Officer Ayala and Thompson. Ayala, the State’s lone witness, was the

sole source of the State’s evidence. His testimony as to the facts of his encounter

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with Thompson was the only circumstantial evidence from which the jury could

infer intent.    The prosecutor’s comment on Thompson’s failure to testify

emphasized for the jury Thompson’s failure to testify as to his intent—a topic that

only Thompson was in a position to know. Because the trial court overruled

Thompson’s objection, no curative instructions were given. Under these facts, it is

quite possible that a juror accorded some weight to the prosecutor’s improper

statement. See Crocker v. State, 248 S.W.3d 299, 307 (Tex. App.—Houston [1st]

2007, pet. ref’d) (applying fifth Harris factor).

      Having evaluated the record in a neutral, impartial, and even-handed manner

and taking into account every circumstance apparent in the record that logically

informs this Court’s constitutional error analysis, I cannot say, beyond a reasonable

doubt that the error did not contribute to Thompson’s conviction. See TEX. R. APP.

P. 44.2(a); Snowden, 353 S.W.3d at 821–22; Harris, 790 S.W.2d at 586.

      Accordingly, I would sustain Thompson’s second issue and reverse and

remand for further proceedings.




                                               Jim Sharp
                                               Justice

Panel consists of Justices Higley, Sharp, and Huddle.

Justice Sharp, dissenting.
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