                            COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH


                                   NO. 2-06-302-CR

JERRY WAYNE GILMORE                                                 APPELLANT

                                            V.

THE STATE OF TEXAS                                                       STATE

                                        ------------

           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                        ------------

                           MEMORANDUM OPINION 1

                                        ------------

                                    I. INTRODUCTION

      A jury convicted Appellant Jerry Gilmore of the manufacture of more than

400 grams of a controlled substance (methamphetamine), and the trial court

sentenced him to thirty years’ incarceration. In eight points, Gilmore contends

that the evidence was legally and factually insufficient to establish that he was

present during the manufacturing process and to establish that he manufactured




      1
          See T EX. R. A PP. P. 47.4.
over 400 grams of methamphetamine; that the statutory definition of a

controlled substance is unconstitutionally vague as applied to him; that the trial

court erred by denying a specific jury instruction; and that the prosecutor made

an improper comment on Gilmore’s choice to not testify at trial, which should

have caused a mistrial. We will affirm.

                   II. L EGAL AND F ACTUAL S UFFICIENCY P OINTS

      A.    Standards of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See T EX. C ODE C RIM.

P ROC. A NN. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919

(Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we

                                        2
may not re-evaluate the weight and credibility of the evidence and substitute

our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735,

740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we

“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.

Crim. App. 2007).     We must presume that the fact-finder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

                                       3
weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

      B.    Jury Verdict Finding Gilmore Guilty of Manufacturing
            Methamphetamine

      Gilmore first argues that the evidence was legally and factually

insufficient to tie him to the scene where the methamphetamine was

manufactured. A jury can find a person guilty of manufacturing a controlled

substance if the State proves that the person knowingly and intentionally chose

to manufacture such a substance.         T EX. H EALTH & S AFETY C ODE A NN . §

481.112(a) (Vernon 2003). Methamphetamine is a controlled substance. Id.

§ 481.102(6). For the State to obtain a conviction for the manufacture of a

controlled substance, the State must affirmatively link 2 the defendant either to

an interest in the place where the manufacturing occurred or to the actual act

of manufacturing. See East v. State, 722 S.W.2d 170, 172 (Tex. App.—Fort

Worth 1986, pet. ref’d); Harris v. State, No. 02-04-00202-CR, 2005 WL

1838976, at *1 (Fort Worth—Aug. 4, 2005, pet. ref’d) (mem. op.) (not

designated for publication).


      2
        The court of criminal appeals has noted that the “affirmative links” rule
is not an independent test of legal sufficiency, and because the term may imply
a rule independent from the legal sufficiency test, use of the term “link” is the
better practice. Evans v. State, 202 S.W.3d 158, 162 n.9 (Tex. Crim. App.
2006). We similarly hereinafter use the term “link” in this opinion.

                                       4
      In the typical drug possession case, the State is required to link the

defendant to the drug in order to protect the innocent bystander from

conviction based solely upon his proximity to someone else’s drugs. Poindexter

v. State, 153 S.W .3d 402, 406 (Tex. Crim. App. 2005); Harris, 2005 WL

1838976, at *1. In a drug manufacturing case, however, while the State must

still provide a link, the purpose of such a requirement is to protect the innocent

bystander who merely inadvertently happens onto a methamphetamine lab.

Harris, 2005 WL 1838976, at*1.

      Although the analysis is basically the same whether the offense is the

possession of a controlled substance or the manufacture of a controlled

substance, the factors considered may be different. East, 722 S.W.2d at 172;

Harris,   2005   WL   1838976,     at   *1.    For   example,   manufacture    of

methamphetamine occurs in the open, as opposed to possession, which may

occur in a drawer or an envelope. East, 722 S.W.2d at 171-72; Harris, 2005

WL 1838976, at *1. Also, the manufacture of methamphetamine typically

generates a strong odor, not merely a residual odor. See East, 722 S.W.2d at

171-72; Harris, 2005 WL 1838976, at *1.

      Furthermore, the paraphernalia used in methamphetamine manufacturing

are relatively cumbersome and typically are in plain view, and the quantity of

contraband produced is relatively high. See East, 722 S.W.2d at 172; Harris,

                                        5
2005 WL 1838976, at *1. As a consequence, the fact that a defendant has

a prolonged presence on the premises weighs more heavily against that

defendant when methamphetamine is being manufactured on the premises than

it does in a mere possession case. See East, 722 S.W.2d at 172; Harris, 2005

WL 1838976, at *1.

      In this case, the jury heard a substantial amount of circumstantial

evidence linking Gilmore to the manufacture of the methamphetamine. First,

the State presented the testimony of a police officer who conducted

surveillance of the house where, later that day, police discovered the

methamphetamine lab while executing a search warrant. The officer testified

that when he arrived at approximately 8:15 a.m., he saw two vehicles parked

in front of the house (one of which was a blue pickup truck), and that

approximately one hour later he saw Gilmore and another man exit the house,

get into the blue pickup truck, and leave the house. That officer testified that

during this time, he did not see anyone else go into or leave the house. On

cross examination, the officer admitted that one of the vehicles parked in front

of the house obstructed his view of the front door.        But the officer was

steadfast in his testimony that he clearly saw Gilmore and another male come

from the front of the residence before leaving in the truck. This officer also




                                       6
testified that he continued to watch the house after Gilmore and his associate

left and that no one else went into or even drove by the house.

      A second police officer testified that he also staked out the residence in

question in a separate unmarked vehicle on the same block that morning. He

tailed the blue pickup truck when it left the house, and he followed the truck

to a nearby convenience store. This officer testified that, after coming out of

the store, Gilmore and his associate drove in the direction of the residence. The

jury never heard whether Gilmore and his associate reached their destination or

the circumstances of their ultimate arrest. 3

      Approximately two hours later, around 11:00, a police unit arrived at the

house and executed a search warrant. The State presented testimony that

when the police executed the search warrant, the strong smell of ammonia, a

smell commonly associated with methamphetamine labs, permeated the front

yard, the interior of the house, and especially the back yard, where the smell

was the strongest. Police observed a liquid petroleum gas tank in the back

yard, and it had a blueish discoloration at its valve, which is consistent with a

discoloration made by anhydrous ammonia. Inside the house, police discovered


      3
       The trial court granted Gilmore’s motion to suppress and suppressed
“any fruit of the arrest and/or detention of the defendant in this case.” The trial
court ruled, however, that “any challenges to the search of the actual residence
are denied.”

                                        7
a variety of containers, substances, liquids, and products in the house indicating

methamphetamine manufacturing. Pictures taken by the police of items found

in the house were admitted into evidence and reflected that the police

discovered several plastic containers, mounds of empty Sudafed boxes, along

with their emptied blister packs, several cans of starter fluid, coffee filters, and

large containers of salt.     These pictures also showed a blender (which,

testimony established, contained a residue of ground pseudoephedrine) and a

hot plate taken from inside the house. The items found at the house were

“typical of a clandestine methamphetamine lab, a Nazi lab.”

      The State spent a great deal of time, however, on a single tub of liquid

found in the kitchen sink. The jury heard from both police and private forensic

experts who testified that when the police discovered this plastic tub, it

contained a complex, bubbling liquid. This liquid, according to the testimony,

was bubbling because of a chemical reaction of its various mixed ingredients,

which included anhydrous ammonia and ground Sudafed tablets. The result of

this reaction was approximately 12.3 grams of pure methamphetamine.

Testimony established that, while the police interrupted the process too early

to establish an exact time frame, the concoction could have been mixed

approximately three to four hours before the police discovered it, which would

place the mixture time at approximately 8:00 a.m. that morning. Gilmore’s

                                         8
fingerprint was on this tub of bubbling, methamphetamine-producing liquid.

      Gilmore’s attorney questioned several of the forensic experts concerning

that fingerprint. The attorney consistently elicited testimony that there was no

way to determine when the fingerprint was left on the container, how long it

had been there, or the circumstances of its placement on the container.

      In his defense, Gilmore briefly re-called the original investigating officer

and elicited testimony that this officer had driven by the house in the morning

before going to get the search warrant. Gilmore’s questions related to the

placement of the blue pickup truck at the house and whether the officer

checked the registration or ran the license plates on the vehicle. Gilmore did

not call any other witnesses to testify on his behalf and he did not, himself,

testify. On appeal, Gilmore points out that his associate provided police with

a key to the residence so that the police could execute the search warrant, that

mail at the residence was addressed to the associate, and that one of the

associate’s business cards was at the residence.

      Viewing the evidence in the light most favorable to the prosecution, we

hold that the evidence is legally sufficient to support the jury’s determination

that Gilmore, beyond a reasonable doubt, knowingly and intentionally

manufactured methamphetamine. See Jackson, 443 U.S. at 319, 99 S. Ct. at

2789. First, a police officer who could see the entire front of the residence,

                                        9
except for the front door, sat in front of the house for approximately one hour

and then saw Gilmore come from the front of the house. From this the jury

could have reasonably inferred that Gilmore must have come from inside the

house and that he was there for at least the approximate hour between the time

that the officer arrived at the stakeout and the time Gilmore left.

       Furthermore, the jury heard evidence that the odor of ammonia was very

strong in the house itself, that there were multiple items commonly associated

with methamphetamine manufacturing in plain view in the house, and that

methamphetamine was being manufactured in the house. Importantly, the jury

had fingerprint evidence directly connecting Gilmore to a tub of liquid where an

ongoing chemical reaction was actually producing methamphetamine when the

police entered the house. We presume that the jury resolved the conflicting

inferences about when the fingerprint was left on the tub in favor of the

prosecution, and we defer to the jury’s apparent resolution that Gilmore must

have   left   the   fingerprint   while   he   was   involved   in   manufacturing

methamphetamine in the tub that morning. See Jackson, 443 U.S. at 329, 99

S. Ct. at 2793.

       Based on this evidence, the jury could have reasonably inferred that

Gilmore did not innocently and inadvertently happen onto a methamphetamine

lab, but was an active participant in the drug manufacturing process. See East,

                                          10
722 S.W.2d at 172; Harris, 2005 WL 1838976, at *1. Thus, the evidence

was legally sufficient to support the jury’s finding that Gilmore manufactured

methamphetamine.

      Having determined that the evidence was legally sufficient to support his

conviction, we must additionally evaluate whether the evidence was factually

sufficient. Viewing the entire record in a neutral light, we cannot say that the

evidence was so weak that the fact-finder’s determination was clearly wrong

and manifestly unjust. See Watson, 204 S.W.3d at 414. While it is true that

there was no evidence of the arrest itself presented at trial (or whether Gilmore

tried to flee, possessed any drugs or money, or was impaired by drug use at the

time of the arrest), the jury did hear evidence linking Gilmore to the tub of

methamphetamine-producing liquid. And although some items found at the

residence linked Gilmore’s associate more closely to the residence than Gilmore,

we nonetheless cannot say that the evidence presented by the State was so

greatly outweighed by conflicting evidence that the fact-finder’s determination

was manifestly unjust. Watson, 204 S.W.3d at 414-15, 417. Accordingly, we

overrule Gilmore’s second point.

      C.    Jury Verdict Finding Gilmore Guilty of Manufacturing More Than
            400 Grams of Methamphetamine

      Gilmore additionally argues that the evidence was legally and factually

insufficient to establish that he manufactured the quantity of 400 grams or


                                       11
more of methamphetamine.           The indictment alleged that Gilmore did

“intentionally OR knowingly manufacture a controlled substance, namely

methamphetamine of more than four hundred grams, including any adulterants

or dilutants.” The indictment tracks section 81.112(f) of the Texas Health and

Safety Code, providing that manufacture of a controlled substance in Penalty

Group One is a first-degree felony “if the amount of the controlled substance

to which the offense applies is, by aggregate weight, including adulterants or

dilutants, 400 grams or more.” T EX. H EALTH & S AFETY C ODE A NN. § 481.112(f)

(emphasis added). An adulterant or dilutant “means any material that increases

the bulk or quantity of a controlled substance, regardless of its effect on the

chemical activity of the controlled substance.” Id. § 481.102(49).

      At trial, a state-sponsored forensic chemist testified that the tub bearing

Gilmore’s fingerprint contained approximately 1,950 grams of moderately

bubbling liquid, 12.3 grams of which was pure methamphetamine. The rest of

the liquid was byproduct, unreacted pseudoephedrine, solvent, and undissolved

binder.    The State additionally elicited the following testimony from the

chemist:

              [Prosecutor]: [A]re you familiar with the definition contained
      in the Health and Safety Act about what a controlled substance
      is? . . . The definition of a controlled substance where it talks about
      including in a drug – a drug, an adulterant, and a dilutant of which
      the term includes the aggregate weight of any mixture or solution
      or other substance containing a controlled substance?


                                        12
            [Chemist]: Yes, sir.

             [Prosecutor]: Based on that definition . . . would it be your
      testimony that the items we’ve talked about here containing
      methamphetamine contained more than 400 grams based on that
      definition?

            [Chemist]: Yes, sir.

      On cross examination, Gilmore’s attorney elicited testimony from the

chemist that while the solvents technically add bulk to the methamphetamine,

the purpose of the solvents is to facilitate methamphetamine production—to

separate the substances so as to result in a pure methamphetamine. Therefore,

the chemist testified, that in his opinion and under his interpretation of the

statute, the solvents should not count as an adulterant or dilutant but rather as

“trash” in the manufacturing process.

      Notwithstanding the forensic chemist’s admitted “opinion,” the jury heard

testimony that the total weight of the liquid in the tub with Gilmore’s fingerprint

on it was almost five times more than 400 grams, and that the non-

methamphetamine portion of the liquid consisted of other products used in the

manufacture of methamphetamine. Viewing this evidence in the light most

favorable to the prosecution, any rational trier of fact could have found Gilmore

guilty of manufacturing more than 400 grams of methamphetamine under the

statutory definition, which, as the jury heard, includes not only pure

methamphetamine but also adulterants and dilutants.         Id. §§ 481.102(40),


                                        13
.112(f); Jones v. State, 235 S.W.3d 783, 786 (Tex. Crim. App. 2007).

Accordingly, we overrule Gilmore’s third point.

         Having determined that the evidence was legally sufficient to support the

jury’s verdict, we must now address Gilmore’s argument that the evidence was

factually insufficient. See Watson, 204 S.W.3d at 414. Looking at all the

evidence in a neutral light, even if the jury only considered the tub to which the

State directly linked Gilmore, the evidence was clear and undisputed that the

tub contained approximately 1,950 grams of liquid. Therefore, we cannot say

that the determination that Gilmore manufactured more than 400 grams of

methamphetamine under the statutory definition of what the jury must include

in its calculation of the “amount” of the controlled substance that was

manufactured was clearly wrong or manifestly unjust. See Jones, 235 S.W.3d

at 786.      The great weight and preponderance of the evidence does not

contradict the jury’s verdict. See id. Accordingly, we overrule Gilmore’s fourth

point.

                  III. C ONSTITUTIONALITY OF THE A PPLICABLE S TATUTE

         Gilmore’s fifth point of error is that the statutory definition of “controlled

substances” is unconstitutionally vague as applied to him in violation of his Due

Process and Equal Protection rights. There are two types of challenges to the

constitutionality of a statute: that the statute is unconstitutional as applied to



                                           14
the defendant or that the statute is unconstitutional on its face. Barnett v.

State, 201 S.W.3d 231, 232-33 (Tex. App.—Fort Worth 2006, no pet.).

Gilmore asserts on appeal only that the statute is constitutional as applied to

him.4 An as-applied constitutional challenge must be raised in the trial court to

preserve error. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995);

Barnett, 201 S.W.3d at 232-33; Burton v. State, 194 S.W.3d 686, 688 (Tex.

App.—Houston [1st Dist.] 2006, no pet.); Toma v. State, 126 S.W.3d 528,

529 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd). Because Gilmore failed

to request that the trial court find the statute unconstitutional as applied to him,

Gilmore has waived this argument on appeal. See, e.g., Burton, 194 S.W.3d

at 688. We therefore overrule Gilmore’s fifth point.

                                 IV. J URY C HARGE

      In his sixth point of error, Gilmore complains that the trial court erred by

denying his requested jury instruction on mere presence. Gilmore requested

that the trial court include an instruction that “mere presence at the scene




      4
       Indeed, the court of criminal appeals has rejected all facial constitutional
challenges to Texas Health and Safety Code section 481.002(5). See Wright
v. State, 201 S.W.3d 765, 767 (Tex. Crim. App. 2006); Seals v. State, 187
S.W.3d 417, 422 (Tex. Crim. App. 2005); Melton v. State, 120 S.W.3d 339,
343-44 (Tex. Crim. App. 2003); Ex parte Kinnett, No. AP-75,611 (Tex. Crim.
App. Feb. 13, 2008), available at http://www.cca.courts.state.tx.us/OPINIONS/
PDFOPINIONINFO2.ASP?OPINIONID=16530&FILENAME=AP-75,611.PDF.

                                        15
where contraband is found is not sufficient evidence to convict” Gilmore of the

manufacturing charge. The trial court denied Gilmore’s request.

      Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we

must determine whether error occurred. If so, we must then evaluate whether

sufficient harm resulted from the error to require reversal. Id. at 731-32. Error

in the charge, if timely objected to in the trial court, requires reversal if the error

was “calculated to injure the rights of [the] defendant,” which means no more

than that there must be some harm to the accused from the error. T EX. C ODE

C RIM. P ROC. A NN. art. 36.19 (Vernon 2006); see also Abdnor, 871 S.W.2d at

731-32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.

on reh’g).

      In other words, a properly preserved error will require reversal as long as

the error is not harmless.      Almanza, 686 S.W.2d at 171.           In making this

determination, “the actual degree of harm must be assayed in light of the entire

jury charge, the state of the evidence, including the contested issues and

weight of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole.” Id.; see also Ovalle

v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000).




                                          16
      Upon timely request, an accused is entitled to an affirmative defense

instruction on every issue raised by the evidence, whether it is strong, feeble,

unimpeached, or contradicted, and even if the trial court is of the opinion that

it is not entitled to belief. Warren v. State, 565 S.W.2d 931, 933-34 (Tex.

Crim. App. 1978). The trial court is required to give an instruction on every

defensive issue when properly requested. Golden v. State, 851 S.W.2d 291,

295 (Tex. Crim. App. 1993).      However, mere presence is not a statutorily

recognized affirmative defense, and the trial court need not necessarily include

it in a jury charge. Williams v. State, 906 S.W.2d 58, 64 (Tex. App.—Tyler

1995, pet. ref’d). When an alleged defensive theory, such as “mere presence,”

serves only to deny the existence of an essential element of the State’s case,

an affirmative charge on the theory is not required.     Green v. State, 566

S.W.2d 578, 584 (Tex. Crim. App. 1978). In such an instance, instructing the

jury on the State’s burden to prove guilt beyond a reasonable doubt adequately

protects a defendant. Williams, 906 S.W.2d at 64.

      First, in this case, there was no evidence presented raising “mere

presence” apart from Gilmore’s attorney’s assertions during closing arguments.

Rather, the record includes evidence from which the jury could draw inferences

that were contrary to Gilmore’s mere presence in the house—fingerprint

evidence directly linking Gilmore to a tub of liquid actually producing



                                      17
methamphetamine, evidence from which a reasonable person could infer as

officers directly observing Gilmore exit the house after being there for at least

one hour starting at around 8:15 a.m., and evidence that the bubbling mixture

in the tub bearing Gilmore’s fingerprint could have been mixed within the three

to four hours before the police discovered it (which would possibly put the

mixture time at approximately 8:00 a.m. that morning).

      Furthermore, even if Gilmore had presented evidence that he was merely

present at the time, his requested instruction is an affirmative charge on a

defensive theory which serves only to negate the element of intentional and

knowing participation in the manufacture of methamphetamine. See Green,

566 S.W.2d at 584. Therefore, the trial court was not required to include a

mere presence instruction. See Williams, 906 S.W.2d at 64. The jury charge

properly instructed the jury on the State’s burden to establish guilt beyond a

reasonable doubt, and this instruction was adequate. See id. Because error did

not occur in the jury charge, we overrule Gilmore’s sixth point. See Abdnor,

871 S.W.2d at 731.

    V. IMPROPER C OMMENT BY THE P ROSECUTOR D URING C LOSING A RGUMENTS

      Gilmore’s seventh and eighth points deal with the following exchange

during closing arguments at the guilt phase of the trial:

            [Prosecutor]: You have got a fingerprint on a bubbling
      container of manufactured methamphetamine.        Now, this

                                       18
      [d]efendant and [defense attorney] want to run away from that as
      far and as fast as they can.

            [Defense Attorney]: Objection . . . .

            The Court: Sustained.

            [Defense Attorney]: Ask that the jury be instructed to
      disregard the impropriety and not draw any inferences from the
      comments made by the government’s attorney.

           The Court: The jury is instructed to disregard that portion of
      argument.

           [Defense Attorney]: . . . I would ask for a mistrial, Your
      Honor.

            The Court: Denied.

Gilmore argues that the prosecutor’s remark was an improper comment on his

choice not to testify at trial and that the trial court erred by not granting his

motion for a mistrial.5

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

and federal constitutional privileges against self-incrimination.   Montoya v.

State, 744 S.W.2d 15, 34 (Tex. Crim. App. 1987) (op. on reh’g); Smith v.

State, 65 S.W.3d 332, 339 (Tex. App.—Waco 2001, no pet.). In addition, the

Code of Criminal Procedure mandates that




      5
       The State argues in its appellate brief that Gilmore’s objection was too
broad to preserve error. However, Gilmore specifically noted that the comment
violated Gilmore’s right to the protections of the Fifth Amendment of the United
States Constitution. Therefore, we will address the merits of Gilmore’s points.

                                       19
      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.

T EX. C ODE C RIM. P ROC. A NN. art. 38.08 (Vernon 2005).

      To determine if a prosecutor’s comment violated article 38.08 and

constituted an im permissible reference to an accused’s failure to testify, 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. Id.; 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).




                                       20
      Nothing in the record suggests that the prosecutor manifestly intended

to comment on Gilmore’s failure to testify. See Wead, 129 S.W.3d at 130.

Furthermore, we cannot say from the jury’s standpoint, that the comment was

a clear attack on Gilmore’s choice to not testify. See Bustamante, 48 S.W.2d

at 765. The prosecutor’s remarks were more likely seen as a reference to

Gilmore’s constant attempts to establish, during his cross examination of expert

witnesses, that it was impossible to determine when Gilmore’s fingerprint was

made on the tub of methamphetamine.

      Therefore, the record shows no abuse of discretion on the part of the trial

court in denying Gilmore’s motion for mistrial. See Wead, 129 S.W.3d at 130.

Moreover, on this record, a reasonable trial court could have concluded that an

instruction to disregard would effectively remove any possible prejudice caused

by the prosecutor’s comment.      See id. Accordingly, we overrule Gilmore’s

seventh and eighth points.

                                VI. C ONCLUSION

      Having overruled all of Gilmore’s points, we affirm the trial court’s

judgment.


                                                  SUE WALKER
                                                  JUSTICE

PANEL F:     GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)


                                      21
DELIVERED: March 13, 2008




                            22
