                                      COURT OF APPEALS
                                   EIGHTH DISTRICT OF TEXAS
                                        EL PASO, TEXAS


 JOHN CLAUDE SELLA,                                  §
                                                                      No. 08-11-00028-CR
                                Appellant,           §
                                                                         Appeal from the
 v.                                                  §
                                                                      213th District Court
 THE STATE OF TEXAS,                                 §
                                                                    of Tarrant County, Texas
                                Appellee.            §
                                                                        (TC# 0961525D)
                                                     §


                                             OPINION

        John Claude Sella appeals his felony conviction for driving while intoxicated. Sella

contends that during the State’s closing argument, the trial court erred by overruling his objection

to a rhetorical question asked by the State which Sella argues was a comment on his failure to

testify. Finding no error, we affirm.

                                            BACKGROUND

        Sella was stopped for erratic driving at approximately 1 a.m. on October 7, 2004, by

Lieutenant Michael Wilson of the Keller Police Department in Tarrant County, Texas. Wilson

testified that Sella failed to signal a left turn while waiting for a traffic light in the left turn lane at

an intersection. When the light changed, Sella did not turn left, but instead made a right hand

turn out of the left turn lane. Wilson told the jury that he followed the vehicle and saw it signal

a right turn and turn sharply right, almost hitting the curb. The problem with this maneuver was

that there was no street available on which to make a right turn at that time. The driver

corrected his mistake, straightened the vehicle, and continued. At the next intersection, the
vehicle attempted to make a U-turn, at which time Wilson activated his overhead lights to make a

traffic stop. Sella stopped his vehicle slightly beyond a stop sign at the intersection, and then

continued forward and pulled into a private parking lot driveway.

       Wilson testified that he made contact with the driver and requested the individual’s

drivers’ license and proof of insurance, which Sella provided. During this time, Wilson noted

that Sella had slurred speech, bloodshot, watery eyes, and smelled of alcohol. Upon

questioning, Sella informed Wilson that he had had one beer. After conducting a check to

determine whether Sella had an outstanding arrest warrant and to request backup, Wilson

returned to Sella’s vehicle to conduct a field sobriety test. Wilson told the jury that he had to

repeat the instructions for the horizontal gaze nystagmus test to Sella several times and that Sella

exhibited six out of a possible six intoxication clues. Sella was unable to maintain his balance

long enough to listen to Wilson’s instructions regarding the walk and turn test. Sella was unable

to adequately perform the one-leg stand field test, exhibiting three out of a possible four

intoxication clues. Based on these factors, as well as Sella’s erratic driving, Wilson arrested

Sella for driving while intoxicated.

       Prior to having Sella’s vehicle towed, Wilson inventoried the contents of the vehicle. In

the vehicle’s center console, Wilson located a three-quarters full 16-ounce can of beer. He also

found a full 16-ounce can of beer attached to a plastic six-pack ring.

       During the State’s closing argument, the prosecutor stated:

               There was a cold to the touch 16-ounce open container inside the vehicle and
               another one left in the six pack. Officer, I only had one beer. What happened to
               [the] other four beers?

Sella objected to the question arguing that because only he could answer, it constituted a


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comment on his right not to testify. The trial court overruled Sella’s objection, denied his

motion for mistrial, and the prosecutor again asked “[w]hat happened to the other four?”

                                            DISCUSSION

          On appeal, Sella complains that he “was denied his right to remain silent, and to not be

compelled to testify when [the prosecutor] commented upon his failure to testify during closing

arguments, which was in violation of Sella’s right against self-incrimination under the fifth

amendment of the United States Constitution, Article I, Section X of the Texas Constitution, and

the prohibition upon the state commenting on a defendants [sic] failure to testify as provided in

Article 38.08 of the Texas Code of Criminal Procedure, and is, therefore an abuse of discretion.”

          The State counters that its arguments were a proper summation of the evidence before the

trial court, including reasonable inferences from that evidence, and the prosecutor’s rhetorical

question was not a comment on Sella’s failure to testify. The State argues in the alternative that

the prosecutor’s comment caused no harm to Sella.

                                     STANDARD OF REVIEW

          In determining whether the State engaged in improper jury argument, we consider the

entire argument presented, not isolated sentences. Rodriguez v. State, 90 S.W.3d 340, 364

(Tex.App.--El Paso 2001, pet. ref’d). Generally, proper jury argument consists of: (1)

summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument

of opposing counsel; and (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673

(Tex.Crim.App. 2000); Morales v. State, 11 S.W.3d 460, 463 (Tex.App.--El Paso 2000, pet.

ref’d).




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

constitutional privileges against self-incrimination. Moore v. State, 849 S.W.2d 350, 351

(Tex.Crim.App. 1993); Smith v. State, 65 S.W.3d 332, 339 (Tex.App.--Waco 2001, no pet.). In

addition, the Code of Criminal Procedure provides that a defendant’s failure to testify on his own

behalf may not be held against him and that counsel may not allude to the defendant’s failure to

testify. TEX. CODE CRIM. PROC. ANN. art. 38.08 (West 2005).1

         To determine if a prosecutor’s comment constituted an impermissible reference to an

accused’s failure to testify and violated article 38.08, we must decide whether the language used

was manifestly intended or was of such a character that the jury naturally and necessarily would

have considered it to be a comment on the defendant’s failure to testify. See Bustamante v.

State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001); Fuentes v. State, 991 S.W.2d 267, 275

(Tex.Crim.App.), cert. denied, 528 U.S. 1026 (1999). The offending language must be viewed

from the jury’s standpoint, and the implication that the comment referred to the accused’s failure

to testify must be clear. Bustamante, 48 S.W.3d at 765; Swallow v. State, 829 S.W.2d 223, 225

(Tex.Crim.App. 1992). A mere indirect or implied allusion to the defendant’s failure to testify

does not violate the accused’s right to remain silent. Wead v. State, 129 S.W.3d 126, 130

(Tex.Crim.App. 2004); Patrick v. State, 906 S.W.2d 481, 490–91 (Tex.Crim.App. 1995), cert.

denied, 517 U.S. 1106 (1996). A remark that calls attention to the absence of evidence only the

defendant can supply will result in reversal, but “if the language can reasonably be construed to


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   “Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any
defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or
commented on by counsel in the cause.” TEX. CODE CRIM. PROC. ANN. art. 38.08 (West 2005). The statute’s
intent is to prohibit prosecutors from urging the jury to draw conclusions regarding the defendant ’s guilt from his
failure to testify. See, e.g., Randolph v. State, 353 S.W.3d 887, 891 (Tex.Crim.App. 2011) (“In assessing whether
the defendant’s Fifth Amendment right has been violated, courts must view the State’s argument from the jury’s
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refer to appellant’s failure to produce evidence other than his own testimony, the comment is not

improper.” Patrick, 906 S.W.2d at 491.

         The comment/rhetorical question at issue here—“[w]hat happened to [the] other four

beers”—was, at most, an indirect allusion to Sella’s failure to testify. See Wead, 129 S.W.3d at

130; Patrick, 906 S.W.2d at 490–91. Viewed from the jury’s standpoint, the statement could

reasonably be construed as a comment on, or summation of, the evidence presented at trial; as a

comment on Sella’s failure to submit to breath analysis and a second field sobriety test; as a

comment on his failure to produce any evidence at trial; and/or as a comment on his statement

that he had only one beer, in spite of the four beers missing from the plastic six pack ring—not

just his own testimony. See, e.g., Jordan v. State, 897 S.W.2d 909, 913 (Tex.App.--Fort Worth

1995, no pet.) (upholding as proper comments directed at defendant’s refusal to consent to breath

or blood test). The complained-of comment did not clearly reference Sella’s failure to testify or

otherwise refer to a particular aspect of the case that only his testimony could refute. Compare

Livingston v. State, 739 S.W.2d 311, 338 (Tex.Crim.App. 1987) (prosecutor’s comment on

appellant’s power of subpoena to call witnesses to explain his actions “did not refer to some

particular aspect of the case that only appellant’s testimony could refute” or call into question

appellant’s right to remain passive), cert. denied, 487 U.S. 1210 (1988), with Crocker v. State,

248 S.W.3d 299, 304–05 (Tex.App.--Houston [1st Dist.] 2007, pet. ref’d) (prosecutor’s reference

to defendant’s power of subpoena drew attention to absence of evidence that only defendant

could supply and improperly alluded to defendant’s failure to testify), and Harrison v. State, 766

S.W.2d 600, 602–03 (Tex.App.--Fort Worth 1989, pet. ref’d) (prosecutor’s comment that



standpoint and resolve any ambiguities in the language in favor of it being a permissible argument.”).
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“[n]obody else in this courtroom besides who was out there that day testified from this stand”

was improper because jury would necessarily take it as comment on defendant’s failure to

testify). Moreover, during closing argument, Sella’s counsel repeatedly referred to “one beer” or

“a beer.”

       We conclude that the prosecutor’s comment was not manifestly intended to refer to

Sella’s failure to testify and that it was not of such a character that the jury would necessarily

have considered it to be a comment on his failure to testify. See Bustamante, 48 S.W.3d at 765;

Patrick, 906 S.W.2d at 491.

       Finally, even assuming the prosecutor’s comment was an improper comment on Sella’s

failure to testify, any error was harmless. We apply a Rule 44.2(a) constitutional harm analysis

to comments on a defendant’s failure to testify and reverse unless we determine beyond a

reasonable doubt that the error did not contribute to the appellant’s conviction or punishment.

See TEX. R. APP. P. 44.2(a); Williams v. State, 958 S.W.2d 186, 194 (Tex.Crim.App. 1997). In

applying the “harmless error” test, our primary question is whether there is a “reasonable

possibility” that the error might have contributed to the conviction. Mosley v. State, 983 S.W.2d

249, 259 (Tex.Crim.App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

       Our harmless error analysis should not focus on the propriety of the outcome of the trial;

instead, we should calculate as much as possible the probable impact on the jury in light of the

existence of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000),

cert. denied, 532 U.S. 944 (2001). We consider the source and nature of the error, the extent

that it was emphasized by the State, its probable collateral implications, the weight a juror would

probably place on the error, and whether declaring it harmless would be likely to encourage the


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State to repeat it with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App. 1989).

This requires us to evaluate the entire record in a neutral, impartial, and even-handed manner, not

“in the light most favorable to the prosecution.” Id. at 586, quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979).

       Our neutral, impartial review of the record demonstrates that the prosecutor’s comment

summarized the evidence presented to the jury at trial; that the comment was, at most, an indirect

reference to Sella’s failure to testify; that the prosecutor did not repeat or emphasize the

statement following Sella’s objections; and that a juror would probably not attribute much, if

any, weight to any alleged error in the comment.

       Moreover, in its instructions, the trial court informed the jury that it could not consider

Sella’s failure to testify as a circumstance against him, and instructed the jury “[y]ou will,

therefore, not consider the fact that the defendant did not testify as a circumstance against him;

and you will not, in your retirement to consider your verdict, allude to, comment on, consider, or

in any manner refer to the fact that the defendant has not testified.”

       After reviewing the record and applying the required harm analysis under Rule 44.2(a),

we hold beyond a reasonable doubt that, even assuming that the trial court erred by overruling

Sella’s objection to the complained-of comment, any error did not contribute to Sella’s

conviction. See TEX. R. APP. P. 44.2(a). We overrule Sella’s sole issue.

                                          CONCLUSION

       Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.



December 21, 2012                              CHRISTOPHER ANTCLIFF, Justice


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Before McClure, C.J., Rivera, J., and Antcliff, J.

(Do Not Publish)




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