Opinion issued August 30, 2007




                            NO. 01-05-00516-CR



                      FRABON CROCKER, Appellant

                                     V.


                    THE STATE OF TEXAS, Appellee


                  On Appeal from the 230th District Court
                            Harris County, Texas
                       Trial Court Cause No. 1012896



                                 OPINION


     Ajuryconvicted appellant, Frabon Crocker, ofaggravated robbery, and, having

pleaded true to two enhancement allegations, he was sentenced to 35 years'
confinement. TEX. PEN. CODE ANN. § 29.03 (Vernon 2003). In four issues, appellant

complains that(1) the pre-trial identification procedures used by the Houston Police

Department were impermissibly suggestive, (2) "the trial court erred in overruling

[his] objection to the prosecutor's comment on [ ] appellant's failure to testify,"

(3)thetrialcourtimproperly defined thestandard ofproofduring voirdire, and (4)he

received ineffective assistance of counsel. We reverse and remand for a new trial.

                                   Background

      On January 26, 2004, the complainant, Seyed Tabatabai, opened the flower

shop he and his wife owned together. After assisting a few customers, the

complainant, who was alone in the store, went into the back office to inventory the

store's merchandise. Shortly thereafter, the complainant heard the "clicking" noise

ofthe cashregisters and ran out of the office to find a manwith his hands in bothof

the store's registers. The man, startledby the complainant'spresence, pointeda gun

at thecomplainant, fledthe store, andgot intoa redvan. Thecomplainant chased the

man out of the store and attempted to grab the van's passenger-side mirror as it was

driving off. During his pursuit of the man, the complainant was able to write the

van's licenseplate number down on his hand, and he provided that informationto the

police when he reported the robbery.

      According to his testimony, the complainant estimated the man to have taken

approximately $700 from the store. The complainant also stated that, as the robbery

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was occurring, he had the opportunity to"lookQ into [the robber's] eyes ... .*' When

the police identified appellant as the registered owner of the van, they placed his
picture in a photo array for the complainant's viewing. The complainant tentatively
identified appellant astheman who had robbed his store in the photo array, but asked

to view a line-up.

      After laterviewing a videotapedline-up, the complainantpositivelyidentified

appellant as the robber.    On cross-examination, the complainant admitted that

appellant was taller, heavier, and dressed differently than the other line-up

participants. In addition, appellant was the only person who appeared in both the

photo array and the video line-up. There was testimony from the complainant

indicating that, before he viewed the video line-up, the police informed him they had

traced the license plate number and "got the person/'

      At trial, the complainant again identifiedappellant as the robber. The jury also

heardthe testimonyofthree Houston policeofficers: Officers Hatrick, Chapnick, and

Villarreal. Officer Hatrick stated that he had responded to the complainant's 911 call

reporting the robbery. Other than the opencash register drawers, Hatrick found no

physical evidence of a robbery at the flower shop. He did not call the Crime Scene

Unit to come out and investigate the incident. Officer Chapnick testified that, one

day, as he was randomly "running plates," he came across a van matching the

description and license plate numberprovided by the complainant. WhenChapnick
stopped the van, appellant was driving. No weapons were found in appellant's van.

Finally, Officer Villarreal testified that he prepared the photo array and line-up for the

complainant's viewing. He also confirmed that (1) no fingerprints were taken in the

case, (2) the complainant was told before viewing the line-up that the man in the van

had been caught, and (3) appellant was taller, heavier, and dressed differently than

other line-up participants.

                           Comment on Failure to Testify

       In his second issue, appellant argues that "the trial court erred in overruling

[his] objection to the prosecutor's comment on [ ] appellant's failure to testify." The

trial court, however, sustained appellant's objection, and we construe his complaint

to be one as to the adverse ruling against him—namely, the trial court's denial ofhis

request for an instruction to the jury to disregard the prosecutor's statement and a

mistrial.


       In closing arguments, the following exchange occurred:

       [Prosecutor]: And I will tell you this: The State and the defense have
       the same ability to bring in witnesses in this case. The State can
       subpoena witnesses. The defense can subpoena witnesses. Okay. You
       heardfrom the State *s witnesses as to who was there January 26, 2004,
       And the State's witnesses only. And I ask that you find him guilty.

       [Defense Counsel]: Objection improper jury argument.

       [Trial Court]: Sustained.

       [Defense Counsel]: I'd ask the jury be instructed to disregard the last
       statement of the prosecutor. We ask for mistrial.
      [Trial Court]: Denied.

(Emphasis added.)

Preservation


      The State argues that appellant's "improperjury argument" objection lacked

the specificityrequired to preserve the error, ifany, in the prosecutor's commenton

appellant's failure to testify. Texas Rule of Appellate Procedure 33.1 requires that

an objection state "the grounds for the ruling that the complaining party [seeks] from

the trial court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds [are] apparent from the context;...." TEX.

R. App. P.33.1(a). Here, the specific groundsfor appellant's objection were apparent

from thecontext. Moreover,appellant's objection wassustained, and thusapparently

understood by the trial court. Any error has been preserved for our review.

      Although weagree with thedissenting opinion that the better practice is foran

attorney to request an instruction to disregard the objectionable comment followed

by a motion for mistrial after the instruction is given, we disagree that error is not

preserved merely because the trial attorney chose to assert both those objections

concurrently ratherthan consecutively. Topreserve error, anattorney hastheburden

to make an objection withenough clarity forthecourtto understand its nature and to

obtain an adverse ruling. Both of those requirements are met here. Faced with the

dual motions to disregard the objectionable comment andto grant a mistrial, thetrial
court had the option to give the instruction and deny the mistrial; or to give the

instruction and grant the mistrial; or to deny giving the instruction and grant the

mistrial; or to deny giving the instruction and deny the mistrial. The trial court opted

for the last choice when it ruled "denied." We, therefore, disagree with the dissenting

opinion, which adds a new step for preservation of error that it acknowledges has no

foundation in case law.


Error


        In determining whether this exchange entitled appellant to an instruction to

disregard, we must first decide whether the prosecutor's jury argument was improper.

Proper jury argument includes: (1) a summary of the evidence, (2) a reasonable

deduction from the evidence, (3) an answer to the opponent's argument, or (4) a plea

for law enforcement. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991).

A comment on a defendant's failure to testify offends both the Texas and United

States constitutions, as well as Texas statutory law. U.S. CONST, amend. V; TEX.

Const, art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005)

(providing that "[a]ny defendant in a criminal action shall be permitted to testify in

his own behalftherein, but the failure ofany 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").

      A prosecutor's comment amounts to an impermissible comment on a
defendant's failure to testify only if, when viewed from the jury's standpoint, the

comment is manifestly intended to be, or isofsuch characterthata typicaljurywould

naturally andnecessarily takeit to be,a comment onthedefendant's failure to testify.

Bustamante v. State,48 S.W.3d 761,765 (Tex. Crim. App. 2001). We must consider

the context in which the comment was made. Id. It is not sufficient that the comment

might be construed as an implied or indirect allusion to a defendant's failure to

testify. Id. Where the remark calls the jury's attention to the absence ofevidence that

only a defendant's testimony could supply, however, the conviction is subject to

reversal.   See Garrett v. State, 632 S.W.2d 350, 353 (Tex. Crim. App. 1982)

(explaining that "an implied or indirect allusion to the failure of the appellant to

testify" is not enough to support error unless the comment calls "for a denial of an

assertion of fact. . . that only the appellant was in a position to offer"); see also

Trevino v. State, 979 S.W.2d 78, 79-80 (Tex. App.—Austin 1998, pet. refd)

(holding that prosecutor's commentto jury that "[t]wo people were there that night

that know what happened, [the defendant] and [the complainant]" emphasized the

absence of appellant's testimony and constituted reversible error); Norton v. State,

851 S,W.2d 341,346 (Tex. App.—Dallas1993, pet. refd) (holding that prosecutor's

commentto jury that "[t]here were only two people out there and we heard from one

of them" was comment on defendant's failure to testify and constituted reversible

error).


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       Here, appellant's theory of the case was that the State failed to meet its burden

of proof beyond a reasonable doubt. There was no physical evidence connecting

appellant to the robbery. The complainant was the source of all of the evidence

offered by the State at trial. For example, the only identity evidence came from the

complainant's identification ofappellant as the robber in a videotaped line-up and in

court, and the investigating officers located appellant through the license plate

number the complainant provided. The complainant was the source ofthe evidence

because, as he testified, there were no other employees or customers present in the

store at the time of the robbery. That is, he and appellant were, allegedly, the only

two people present. As a result, the prosecutor's argument that the jury "heard from

the State's witnesses as to who was there .. . [a]nd the State's witnesses only," was

an indirect comment on appellant's failure to testify, as it drew the jury's attention to

the absence of evidence that only appellant's testimony could supply. See Garrett,

632 S.W.2d at 353. The prosecutor's argument thus was improper and warranted an

instruction to the jury to disregard.

Harm


       Because the trial court erred in denying appellant's request for an instruction

to disregard, we must determine whether that error was reversible. See Chimneyv.

State, 6 S.W.3d 681, 703 (Tex. App.—Waco 1999, pet. refd 2002) (noting that trial

court commits errorwhere it sustains objection for improperjury argument but denies
request for instruction to disregard improper argument). A violation of the

prohibition against commenting on a defendant's silence at trial is not automatically

reversible error. See Madden v. State, 799 S.W.2d 683,699 n.28 (Tex. Crim. App.

1990). A careful reading ofthe rule for reversible error in criminal cases, alongside

relevant case law, reveals several types of error that may occur: (1) constitutional

error that    is   not    subject   to   harmless    error   analysis    (i.e.   structural

error);(2) constitutional error that is harmful;(3) constitutional errorthat is harmless;

(4) non-constitutional error that is harmful (i.e. error that affects a substantial right);

and (5) non-constitutional error that is harmless (i.e. error that does not affect a

substantial right). See Tex. R. App. P. 44.2; Thompson v. State, 89 S.W.3d 843,

851-52 (Tex. App.—Houston [1st Dist.] 2002, pet. refd).

      Our first task in making a determination as to whether the error requires

reversal here is, thus, to determine whether the error is one of constitutional

magnitude ormerely one thataffects a substantial right. Seeid. Here, bydrawing the

jury's attention to the absence of evidence that only appellant's testimony could

supply, the prosecutor's comment offended appellant's privilege against self-

incrimination under the U.S. and Texas Constitutions. U.S. CONST, amend. V; TEX.

CONST, art. I, § 10. Accordingly, we hold the error to be one of constitutional

magnitude. Other courts of appeals have similarly viewed such errors. See, e.g.,

Brown v. State, 92 S.WJd 655, 665 (Tex. App.—Dallas), aff'd, 122 S,W.3d 794
(Tex. Crim. App. 2003); Trevino, 979 S.W.2d at 80.

      Having determined that the error is constitutional error, we next consider

whether it is subject to a harmless error review. Structural defects in the trial

mechanism "defy analysis by 'harmless-error' standards." Thompson, 89 S.W.3d at

853. This is because structural errors, such as the absence of counsel for a criminal

defendant, a partial judge, the unlawful exclusion ofmembers ofthe defendant's race

from a grand jury, or violations ofthe right to a public trial, affect the entire conduct

of a trial from beginning to end.       Id.        Stated differently, structural errors are

constitutional deprivations which affect the framework within which the trial

proceeds, rather than simply errors in the trial process itself. Id. Where the record

reveals constitutional error in the trial process itself, however, such error is subject

to a harmless error review, and we must "reverse a judgment of conviction or

punishment unless [we] determine[], beyond a reasonable doubt, that the error did not

contribute to the conviction or punishment." TEX. R. APP. P. 44.2(a); Thompson, 89

S.W.3dat853.


      The error in the instant case arose during the State's closing argument.

Although the prosecutor's comment was improper, it was not a structural error that

affected the framework within which the trial proceeded. Rather, it was merely an

error in the trial process itself. Thus, a Rule 44.2(a) analysis is required, and we

apply the standard of review for constitutional errors as set forth in Harris v. State,


                                              10
790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989). In applying the harmless error

rules, a reviewing court should not focus on the propriety ofthe outcome at trial. Id.

"Instead, an appellate court should be concerned with the integrity of the process

leading to the conviction." Id. The court should examine (1) the source ofthe error,

(2) the nature of the error, (3) whether or to what extent it was emphasized by the

State, (4) its probable collateral implications, (5) the weight a juror would probably

place upon the error, and (6) whether declaring the error harmless would encourage

the State to repeat it with impunity. See id. In summary, the reviewing court should

ask "whether the error at issue might possiblyhave prejudiced the jurors' decision

making; it should ask not whether the jury reached the correct result, but rather

whether the jurors were able properly to apply law to facts in order to reach a

verdict." Id.


      Turning to the first factor in the Harris analysis, we note that the State was the

source of the error here. See id. at 587. As noted above, during closing arguments,

the prosecutor improperly commented on appellant's failure to testify. The State

argues that any error was invited by defense counsel's closing arguments, during

which defense counsel argued that the State had failed to meet its burden of proof.

Specifically, defense counsel emphasized the lack of physical evidence, such as

fingerprints or a weapon, and the lack of any scientific investigation. We hold that

these defense arguments did not invite the prosecutor's argument. Moreover, to


                                          11
conclude that such an argument invited error in this case would open the door to

comments on a defendant's failure to testify in countless criminal prosecutions, in

which a defendant merely elects to hold the State to its burden of proof rather than

present his own evidence.

      Turning to the second factor, we consider the nature ofthe error. See id. The

prosecutor's comment on appellant's failure to testify was indirect. There is nothing

in the record which indicates that the prosecutor acted intentionally or with any ill

will in commenting on appellant's failure to testify. And, in consideration ofthe third

factor, we note that the prosecutor commented only once and did not emphasize the

error—albeit because, in part, an immediate objection to the argument was sustained.

      Turning to the fourth factor, we consider the probable implications ofthe error.

See id.   The error occurred during the prosecution's closing arguments in the

guilt/innocence phase oftrial. The charge, already read to the jury by the trial court

and provided to the jury during its deliberations, included an instruction that "[i]n this

case, the defendant has elected not to testify and you are instructed that you cannot

and must not refer to or allude to that fact throughout your deliberations or take it into

consideration for any purpose whatsoever as a circumstance against him." Moreover,

the charge was not the first place the jury encountered this instruction. During voir

dire, the jury was similarly informed by both the trial court and defense counsel that

"the law says that if an accused elects not to testify,... you cannot and must not use


                                            12
it as evidence against him." Thejury is presumed to follow these instructions, and,

thus,the impactofthe prosecutor's statement was likely negated to some extent. See

Colbum v. State, 966 S.W.2d 511,520 (Tex. Crim. App. 1998).

      Turning to the fifthfactor, weconsider the weight ajuror would probably place

upon the error. See Harris, 790 S.W.2d at 587. As previously stated, the facts here

showthat the offensewas committed at a timewhenonly two persons wereallegedly

present: the complainant and appellant. No other employees or customers were

present in the store at the time of the robbery. There was no physical evidence

connecting appellant to the robbery. Further, the complainant was the source of all

ofthe evidence offered by the State at trial. The only identity evidence came from the

complainant's identificationofappellantas the robber in a videotaped line-upand in

court, and the investigating officers located appellant through the license plate

numberthe complainant provided. The statementthat the jury had "[hjeard from the

State's witnesses. And the State's witnesses only," thus, called the jury's attention

to the absence of evidence that only appellant's testimony could supply. While the

trial court sustained the improper jury argument objection, it did not instruct the jury

to disregard the prosecutor's comment. It is possible then that a juror gave at least

some weight to the prosecutor's statement that the jury had heard from the State's

witnesses only.

      Finally, we consider whether declaring the error harmless would encourage the


                                          13
State to repeat it with impunity. See id. Because there is nothing in the record which

suggests that the comment was made intentionally, it is not likely that declaring the

error harmless in this case would encourage the State to repeat it in subsequent

prosecutions. However, we note that the facts here are akin to those in manycriminal

prosecutions. That is, a crime occurs when there are only two persons present: the

victim and the perpetrator. The defendant does not testify at trial, electing instead to

hold the State to its burden of proof beyond a reasonable doubt. During closing

arguments, the defense presents its theory that the State has failed to meet its burden.

To declare a comment on a defendant's failure to testify harmless here has some

potential to open the door to similar comments in other cases.

      After due consideration ofeach ofthe factors in the Harris analysis, we cannot

say, beyond a reasonable doubt, that the error did not contribute to the conviction or

punishment. See TEX. R. APP. P. 44.2(a). Most compelling in reaching this

conclusion is the possibility that jurors gave some weight to the prosecutor's

statement that the jury had heard from the State's witnesses only.

      Accordingly, we must sustain appellant's second issue. In light of our

disposition ofthis issue, we need not reach appellant's other issues.




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                                    Conclusion

      We reverse the judgment of the trial court and remand for a new trial.


                                       George C. Hanks, Jr.
                                       Justice



Panel consists ofJustices Taft, Alcala, and Hanks.

Justice Taft, dissenting.

En banc consideration was requested. See TEX. R. APP. P. 41.2(c).

A majority ofthe Justices of the Court voted to deny en banc consideration. See id.

Justices Nuchia, Taft, and Higley dissent from the denial ofen banc consideration for
the reasons stated in the dissenting opinion. See TEX. R. APP. P. 47.5.

Publish. TEX.R. APP. P. 47.2(b).
