      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-00-00626-CR




                               Anthony Eugene Miller, Appellant

                                                  v.

                                   The State of Texas, Appellee



     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
          NO. 20,096, HONORABLE C. W. DUNCAN, JR., JUDGE PRESIDING




               A jury found appellant guilty of the offense of indecency with a child. See Tex. Penal

Code Ann. § 21.11(a)(1) (West Supp. 2001). The district court sentenced appellant to five years in

prison. Raising three points of error, appellant contends that the district court erred by allowing the

State to comment on appellant’s failure to testify and erred by denying appellant’s request to

introduce testimony that one of the State’s witnesses had made a prior inconsistent statement. We

affirm the district court’s judgment.


                                            Background

               The complainant, a fourteen-year-old girl at the time of the incident, and appellant

were the only two people in the complainant’s bedroom on the night in which she claimed appellant

touched her left breast. The complainant was fifteen when she testified at trial about the incident. In

presenting his defense, appellant called several witnesses who testified about events that occurred
before and after the alleged indecent act but appellant chose to rely on his constitutional right to

remain silent.


                                             Discussion

Comments on Defendant’s Failure to Testify

                 In his first and second points of error, appellant contends that twice during closing

remarks to the jury, the State improperly commented on appellant’s failure to testify.

                 The four permissible areas of jury argument are: (1) summation of the evidence; (2)

reasonable deduction from the evidence; (3) answers to arguments from the defense; and (4) pleas

for law enforcement. Smith v. State, 898 S.W.2d 838, 845 (Tex. Crim. App. 1995). The failure of

an accused to testify may not be the subject of comment by the prosecution. Montoya v. State, 744

S.W.2d 15, 34 (Tex. Crim. App. 1987) (op. on reh’g); Lopez v. State, 793 S.W.2d 738, 741 (Tex.

App.—Austin 1990, pet. dism’d); see also Bustamante v. State, No. 1954-99, 2001 Tex. Crim. App.

LEXIS 46, *6-7 (Tex. Crim. App. June 13, 2001) (comment by trial judge on defendant’s failure to

testify). Such a comment is in violation of the privilege against self-incrimination contained in the

Fifth Amendment to the United States Constitution and in Article I, Section 10 of the Texas

Constitution. Griffin v. California, 380 U.S. 609 (1965); Allen v. State, 693 S.W.2d 380, 381 (Tex.

Crim. App. 1984) (op. on reh’g). Further, comments by the prosecutor referring to a defendant’s

failure to testify also violate article 38.08 of the Texas Code of Criminal Procedure. Tex. Code Crim.

Proc. Ann. art. 38.08 (West 1979); Montoya, 744 S.W.2d at 34. A violation occurs when a

prosecutor makes remarks that are manifestly intended or are of such character that the jury would

naturally and necessarily consider them to be a comment on the accused’s failure to testify. Allen,

693 S.W.2d at 385. The prosecutor’s remarks must be viewed from the standpoint of the jury, and

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there must be a clear implication that the language used referred to the accused’s failure to testify.

Dickinson v. State, 685 S.W.2d 320, 323 (Tex. Crim. App. 1984). It is not sufficient that the

language might be construed as an implied or indirect allusion to the defendant’s failure to testify.

Montoya, 744 S.W.2d at 35. In applying this standard, the facts and circumstances of each case must

be analyzed to determine whether the language used was improper. Id.

               Appellant’s first issue complains of the following remarks by the prosecutor made

during the State’s rebuttal to appellant’s closing argument: “[S]he is the only one that came in here

and told you what happened. All the evidence in this case came from her.” Appellant argues that

these remarks were an improper comment on his failure to testify, were harmful and his case should

be reversed and remanded for a new trial. Appellant contends that the remarks were similar to those

made by the prosecutor in Norton v. State, 851 S.W.2d 341, 344 (Tex. App.—Dallas 1993, pet.

ref’d). In Norton the prosecutor commented, “There were only two people there and we heard from

one of them.” Id. The Dallas court of appeals reversed Norton’s conviction after determining that

these remarks were an improper comment on Norton’s failure to testify and were harmful. Id.

               The State argues that unlike the facts in Norton, appellant’s attorney in his closing

argument first brought up the fact that the complainant was the only witness to the alleged indecent

act. The State contends that the prosecutor’s remarks were responsive to appellant’s initial

comments that there was only one witness and were a response to appellant’s complaints about the

complainant’s credibility. Additionally, the State argues that as evidenced by the argument the

prosecutor made immediately following the remarks, the prosecutor was letting the jury know that

it would have to evaluate the fifteen-year-old complainant’s testimony.

               During appellant’s closing argument his attorney stated:


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       Defense Attorney: I can tell you that [the district attorney] would not be bringing this
       case against Anthony Miller to you if he wasn’t relying on the fact that it’s Anthony
       Miller and it’s not our sons and our daughters with one witness being his primary
       witness. The fact—this is not anything that’s unnoticeable–that there’s no chair back
       here with anybody that you can interpret as a support system in the community for
       Anthony [Miller].


Later during closing argument, the defense attorney made the following comment:


       Defense Attorney: You are told in [the charge] that you are the sole judge of the
       credibility to be given to the witnesses. You’re the only witness–when the state has
       only one major witness that will pin a felony conviction that, as Mr. Lewis told you,
       carries two to twenty, that case should be beyond reproach.


The following exchange occurred when the prosecutor argued in rebuttal:


       Prosecutor: If you can’t make the State look bad, then you make the witness look
       bad. A 14 year old, 15 year old girl. She is the only one that came in here and told
       you what happened. All of the evidence in this case came from her.

       Defense Attorney: Objection, Your Honor. . . . It’s a comment on the Defendant’s
       failure to testify.

       The Court: Overruled.

       Prosecutor: You’ve got to look at her. It is her testimony. Pick her apart, make her
       look bad. Make her account for everything she didn’t put in her statement back in
       November at the age of 14. Make her account because she doesn’t remember
       everything today exactly the way it may have happened or when she made her
       statement.


               It is well-settled that the prosecutor may respond to jury argument by defense counsel

so long as the response does not exceed the scope of the invitation. Andujo v. State, 755 S.W.2d

138, 144 (Tex. Crim. App. 1988); Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. 1981).

The invitation may even include a comment on the defendant’s failure to testify. Porter v. State, 601


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S.W.2d 721, 723 (Tex. Crim. App. 1980); see also Nethery v. State, 692 S.W.2d 686, 703 (Tex.

Crim. App. 1985).

                Unlike the facts in Norton, appellant’s defense attorney stressed to the jury twice during

his closing argument that in this case there was only one witness to the alleged indecent act. The

prosecutor responded and restated what the defense attorney had already argued to the jury—there

was only one witness—when he stated, “[S]he is the only one that came in here and told you what

happened. All the evidence in this case came from her.” The prosecutor’s remarks did not exceed

the scope of a proper response to the defense attorney’s argument. Appellant’s first issue is overruled.

                Appellant’s second issue complains of the following statement by the prosecutor made

during the State’s rebuttal to appellant’s closing argument: “[N]obody else has come in here and said

that she had on tight jeans that night. Nobody has come in here and said . . . .” Appellant contends

that these remarks also were improper comments on his failure to testify.

                The State responds that although it is possible to view the prosecutor’s remarks as

directed toward appellant’s failure to testify, it is more likely that the prosecutor was pointing out that

in fact none of the witnesses testified about how the complainant was dressed that night; consequently,

the remarks were not necessarily a comment on appellant’s failure to testify.

                The test to determine if the State’s argument was improper is whether the remarks were

manifestly intended or were of such character that the jury would naturally and necessarily take them

to be a comment on the accused’s failure to testify. Bird v. State, 527 S.W.2d 891, 894 (Tex. Crim.

App. 1975). In applying this test, the facts and circumstances of each case must be analyzed.

                The record here reveals that there were other people who testified that saw the

complainant the night of the alleged indecent act. The defense attorney did not question them about


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how the complainant was dressed the night of the alleged indecent act. The jury, consequently, could

have inferred that the prosecutor was referring to someone other than the appellant in his remark that

no one else testified that the complainant was wearing tight jeans.

               If the comment, in light of the entire evidentiary record, could be interpreted as

referring to the defense’s failure to present available evidence from sources other than the accused,

reversible error is not presented. Milton v. State, 620 S.W.2d 115, 116 (Tex. Crim. App. 1980). The

possible existence and availability of such other sources must be affirmatively reflected in the evidence

before the jury. The State is not permitted to conjure up the existence of some phantom witnesses and

then castigate the defense for having failed to summon them to testify. Montoya, 744 at 33. If the

evidence does not raise the existence and availability of such witnesses other than the accused, then

the indirect comment must necessarily refer to the defendant’s failure to testify. Myers v. State, 573

S.W.2d 19, 20 (Tex. Crim. App. 1978).

               The possible existence and availability of sources of evidence for the comment other

than the defendant are not to be considered as a comment on the defendant’s failure to testify.

Anderson v. State, 813 S.W.2d 177, 181 (Tex. App.—Dallas 1991, no pet.); Rodriguez v. State, 787

S.W.2d 504, 506 (Tex. App.—El Paso 1990, no pet.). Where there is other evidence, or the absence

of other evidence, to which remarks may reasonably have been applied by the jury, the prohibition

against commenting on the defendant’s failure to testify is not violated. Brown v. State, 475 S.W.2d

761 (Tex. Crim. App. 1971).

               The record reflects that several witnesses were with the complainant at different times

during the night of the alleged indecent act. The defense attorney could have elicited testimony from

them about what the complainant was wearing the night of the alleged indecent act. The defense


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attorney, however, did not question them about the complainant’s attire. Due to the existence and

availability of sources other than appellant for the remarks leads us to conclude that the remarks were

not necessarily a comment on appellant’s failure to testify. Appellant’s second issue is overruled.



Prior Inconsistent Statement

               In his third issue appellant contends that the court erred in disallowing testimony before

the jury by Joe and Sandra Uher, neighbors of the complainant, that showed “that [the complainant’s

father] made a prior statement which was inconsistent with his testimony in court.”

               During trial, this was not the ground appellant urged. At trial, appellant asked the court

to allow testimony from the Uhers before the jury that would show the complainant made a prior

inconsistent statement to her father by telling him that the incident never took place and that the

allegations were a joke. Appellant’s issue on appeal differs from his assertion in district court.

Appellant failed to preserve this issue for review. Tex. R. App. P. 33.1(a)(1).

               Even if appellant properly preserved his appellate complaint, we hold that the defense

attorney did not lay a proper foundation for the Uhers to testify about an inconsistent statement by the

complainant’s father.

               When the defense attorney cross-examined the complainant’s father the following

occurred:

        [Defense Attorney] Q: Do you remember going to the Uhers’ later on that week,
        that is the night before Thanksgiving?
        [Complainant’s Father] A: No, I don’t recall that.

        ......

        Q: Do you remember going over to the Uhers’ the night before Thanksgiving and
        talking about this incident that your daughter had accused Anthony of?

                                                   7
        A: No.

        Q: Have you ever had a conversation in front of Joe or Sandy Uher about this incident
        and whether it was the truth or not?

        A: No.

        Q: Are you aware as to whether or not [the complainant] has ever said that if
        Anthony didn’t sleep with her that she would set him up? Are you aware of that?

        A: No.

        Q: Has [the complainant] ever said anything to you that would indicate that her
        allegations are a joke?

        A: No, sir.


               The rules of evidence did not change the well-settled common law rule that a

foundation must be laid before impeaching a witness with a prior inconsistent statement. L.M.W. v.

State, 891 S.W.2d 754, 759 (Tex. App.—Fort Worth 1994, no pet.); Allen v. State, 788 S.W.2d 637,

640 (Tex. App.—Houston [14th Dist.] 1990, pet ref’d). A party who attempts to impeach a witness

with a prior inconsistent statement should follow the procedure outlined in Rule of Evidence 613(a).

When following that procedure, the witness is reminded of what, when, to whom and in what context

the allegedly inconsistent statement was made. Tex. R. Evid. 613(a); L.M.W., 891 S.W.2d at 759;

Allen, 788 S.W.2d at 640. The witness is then afforded an opportunity to explain or deny the

statement. Allen, 788 S.W.2d at 640.

               Although the defense attorney referred to a conversation the complainant’s father

allegedly had with the Uhers, he did not present to the complainant’s father the issue that during that

conversation he represented to the Uhers something different than his testimony regarding what the

complainant told him about the incident. The defense attorney asked the complainant’s father

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questions that related to the alleged prior inconsistent statement but he never told him the contents of

the statement or afforded him the opportunity to admit, explain, or deny the alleged previous

statement. See Alvarez-Mason v. State, 801 S.W.2d 592, 595 (Tex. App.—Corpus Christi 1990, no

pet.). The defense attorney failed to follow Rule 613(a).

               Additionally, we note that the defense attorney did not follow Rule 613(a) regarding

a prior inconsistent statement by the complainant which was his allegation at trial. The complainant

was never presented with the statement she allegedly made to her father or given any opportunity to

admit, explain or deny such a statement. Appellant’s third issue is overruled.


                                             Conclusion

               The judgment of conviction is affirmed.




                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Chief Justice Aboussie and Justices Yeakel and Patterson

Affirmed

Filed: August 9, 2001

Do Not Publish




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