
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-91-423-CR



THE STATE OF TEXAS,

	APPELLANT

vs.


JOLIE MICHELLE HOWARD,

	APPELLEE


 


FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY

NO. 346-657, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

 


	After the jury found appellee guilty of the misdemeanor offense of driving while
intoxicated, Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (West Supp. 1992), the court assessed
punishment at thirty days' confinement and a one thousand dollar fine.  Both the confinement and
fine were probated.  The State brings this appeal as a result of the court's action in granting the
appellee's motion for new trial.  See Tex. Code Crim. Proc. Ann. art. 44.01 (West Supp. 1992).
	In its first point of error, the State asserts that the court's action in granting the
appellee's motion for new trial is void because the trial court had no jurisdiction to grant a new
trial based on the State's alleged improper jury argument.  In its remaining point of error, the
State contends that the court abused its discretion in granting appellee's motion for new trial.  We
overrule the State's points of error and affirm the order of the trial court granting appellee's
motion for new trial.
	The trial court granted appellee's motion for new trial as a result of the prosecutor's
argument at the guilt-innocence stage of the trial.  The prosecutor argued:

	Now, Jolie [appellee] didn't have to testify.  She did not have to put on a defense. 
But the truth of the matter is that you never heard a lot of reasons that were
discussed in voir dire and a lot of reasons that were discussed in other parts of the
trial is while people---.


Appellee's objection that the prosecutor's argument was a comment on the defendant's failure to
testify was overruled.
	In its first point of error, the State urges that the trial court was without jurisdiction
to grant a motion for new trial in this cause in that the court sought to exercise the duty and
authority expressly granted to the courts of appeals as part of their appellate jurisdiction.
	It is undisputed that the appellee timely filed her motion for new trial.  See Tex.
R. App. P. 31.  Clearly, the court had jurisdiction of the parties and the offense.  In Moore v.
State, 749 S.W.2d 54 (Tex. Crim. App. 1988), the issue before the court was the correctness of
the trial court's ruling on a motion for new trial.  The court stated, "[L]ack of jurisdiction and the
improper exercise of jurisdiction are vitally different concepts.  If a court has jurisdiction of the
parties and subject matter, its determination of the controversy is not void no matter how
erroneous the decision may be."  Moore, 749 S.W.2d at 57 n.4 (emphasis in original).  We hold
that the court had jurisdiction to consider appellee's motion for new trial.  The State's first point
of error is overruled.
	In its second point of error, the State asserts that the trial court abused its discretion
because:  (1) the appellee failed to state a claim upon which relief could be granted; (2) the
argument of the prosecutor did not constitute a comment on the appellee's failure to testify, and
(3) if it did, the comment was not harmful.
	In Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990), the court
articulated a standard for determining when a trial court abuses its discretion.

	The test for abuse of discretion is not whether, in the opinion of the reviewing
court, the facts present an appropriate case for the trial court's action.  Rather, it
is a question of whether the court acted without reference to any guiding rules and
principles.  Another way of stating the test is whether the act was arbitrary or
unreasonable.  The mere fact that a trial judge may decide a matter within his
discretionary authority in a different manner than an appellate judge in a similar
circumstance does not demonstrate that an abuse of discretion has occurred.

	Thus, judicial rulings will be affirmed if the trial court follows the appropriate
analysis and balancing factors, though the appellate court might disagree with the
weight given to those individual factors.  In short, a trial court judge is given a
"limited right to be wrong," so long as the result is not reached in an arbitrary or
capricious manner.


(Citations omitted).
	The State cites Prendez v. State, 786 S.W.2d 99 (Tex. App.--San Antonio 1990, no
pet.), as authority for its position that improper jury argument is not a basis for granting a motion
for new trial.  In addition to defendent's other alleged errors was a claim of improper argument
by the prosecutor.  The court rejected defendant's claim of ineffective counsel because the
defendant failed to demonstrate there was a reasonable possibility that he could have prevailed on
the motion but for defense counsel's failure.  With respect to the complained-about improper jury
argument, the court, without citation of authority, stated this was not an appropriate ground for
a new trial under Tex. R. App. P. 30(b).
	We are not persuaded by the statement of the court in Prendez that improper jury
argument is not an appropriate ground for a new trial.  Comment on a defendant's failure to testify
is prohibited by both the federal and state constitutions.  See U.S. Const. Amend. V; Tex. Const.
art. I, § 10; see also Tex. Code Crim. Proc. Ann. art. 38.08 (West 1979).  In Johnson v. State,
611 S.W.2d 649, 651 (Tex. Crim. App. 1981), the trial court erred in failing to grant a mistrial
based on the prosecutor's comment on the defendant's failure to testify.  We reject the State's
argument that improper jury argument cannot be considered in a motion for new trial.
	The State also contends that the appellee did not urge any reason set forth in Tex.
R. App. P. 30 for granting a new trial.  Rule 30 provides in pertinent part:

		(b) Grounds.  A new trial shall be granted an accused for the following
reasons:

			(2) Where the court has misdirected the jury as to the law or has
committed some other material error calculated to injure the rights of the
accused.


Appellee's motion for new trial included the complained-of improper argument, the fact that
appellee's objection was overruled and an assertion that the "trial court committed an error
material to the defense and injurious to the rights of the defendant."  We believe there was
sufficient compliance with Rule 30 without the inclusion of the term "calculated" in appellee's
motion for new trial.  The core issue is whether the prosecutor's comment constituted a comment
on the appellee's failure to testify.  The test to be applied to determine whether there has been a
violation by a prosecuting attorney is whether the language used was manifestly intended or was
of such a character that the jury would naturally and necessarily take it to be a comment on the
accused's failure to testify.  See Lopez v. State, 793 S.W.2d 738, 741 (Tex. App.--Austin 1990),
pet. dism'd, 810 S.W.2d 401 (Tex. Crim. App. 1991).
	In determining whether there has been a comment on the accused's failure to
testify, we must consider the context in which the argument is made.  Bird v. State, 527 S.W.2d
891, 894 (Tex. Crim. App. 1975).  The State calls our attention to the fact that the prosecutor had
not finished his argument at the time of appellee's objection.  Following the objection, the
prosecutor argued that appellee could have called the people who were with her "to exonerate
her."  A comment on a defendant's failure to introduce testimony is permissible so long as the
unproduced evidence is not evidence to which only the defendant could have testified.  Cook v.
State, 702 S.W.2d 597, 600 (Tex. Crim. App. 1984).  Moreover, there is no error in stating that
a defendant does not have to testify.
	The focal point of our inquiry is whether the jury would have concluded that the
portion of the prosecutor's argument directed to the jury having "heard a lot of reasons that were
discussed in voir dire and a lot of reasons that were discussed in other parts of the trial" was a
comment on the appellee's failure to testify.  The appellee did not offer any testimony at trial. 
A review of the voir dire reflects that the reasons discussed at this stage of the trial concerned
why the appellee refused to take a breath test and why she did not testify.  These were not isolated
references, but were the subject of counsels' statements on several occasions during voir dire.
	As noted, in our analysis of whether the court erred, we must determine whether
the court abused its discretion in granting the appellee's motion for new trial.  We conclude that
the trial court did not abuse its discretion in finding that the prosecutor's argument constituted a
comment on the appellee's failure to testify.  The reasons appellee did not take a breath test and
elected not to testify were of such a character that the jury would naturally and necessarily take
it to be a comment on the appellee's failure to testify
	The State contends that the prosecutor's argument was not harmful.  We disagree.
A comment on the defendant's failure to testify is often not cured where the court has sustained
the objection and given the jury an instruction to disregard.  Jones v. State, 693 S.W.2d 406, 407
(Tex. Crim. App. 1985); Owen v. State, 656 S.W.2d 458, 459 (Tex. Crim. App. 1983).  In the
instant cause the appellee's objection was overruled and no curative instruction was given the jury. 
We reject the State's contention that the argument was not harmful.  The State's second point of
error is overruled.
	The order of the trial court granting appellee's motion for new trial is affirmed.


  
					Tom G. Davis, Justice
[Before Justices Jones, Kidd and Davis*]
Affirmed
Filed:  October 7, 1992
[Publish]






*	Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. 
See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
