                              COURT OF APPEALS
                              SECOND DISTRICT OF TEXAS
                                   FORT WORTH

                                 NO. 02-10-00275-CR


SEVERIANO FLORES GARCIA                                              APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


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            FROM THE 271ST DISTRICT COURT OF WISE COUNTY

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                              MEMORANDUM OPINION1
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                                   I. INTRODUCTION

       A jury found Appellant Severiano Flores Garcia guilty of felony driving while

intoxicated and assessed his punishment at six years’ confinement. The trial

court sentenced him accordingly. In a single issue, Garcia argues that the trial

court erred by overruling his objection to the prosecutor’s comment on his failure

to testify. We will affirm.



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       See Tex. R. App. P. 47.4.
                    II. FACTUAL AND PROCEDURAL BACKGROUND

      Around 8:45 one night, Wise County Police Officer Travis Waddell was off

duty and driving northbound on Thirteenth Street in Bridgeport, Texas when he

noticed a vehicle in front of him make a wide left turn, drive onto the shoulder,

and nearly strike a curb. Officer Waddell followed the vehicle and observed it

twice drift across the double yellow line and quickly return to the correct lane. At

that point, Officer Waddell saw a Bridgeport patrol unit driven by Officer Gregory

Romine, and Officer Waddell flagged him down. Officer Waddell relayed what he

had seen to Officer Romine, who began following the vehicle as well.            After

observing the vehicle turn without signaling, Officer Romine initiated a traffic stop.

The driver, Garcia, took long pauses in answering the officer’s questions and was

slow to get out of his vehicle; when he did get out, his vehicle rolled forward

because it was not in gear. Officer Romine smelled alcohol on Garcia’s breath

and noticed that he walked with a stagger and had blood shot eyes. Garcia told

Officer Romine that he had consumed two beers, and the officer saw two open

beer cans and one unopened beer can in Garcia’s vehicle.             Officer Romine

attempted to complete the horizontal gaze nystagmus test on Garcia, but he

would not comply.

      Bridgeport Police Officer Chris Foster arrived about fifteen minutes after

the stop to assist Officer Romine. Officer Foster also noticed that Garcia smelled

strongly of alcohol, stumbled, and slurred his speech. Officer Romine placed

Garcia under arrest, which took over a minute because Garcia did not cooperate


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with the officer. Garcia refused to sign the DIC-24 statutory warnings and did not

give a breath specimen.

      At Garcia’s trial, Officers Waddell, Foster, and Romine testified for the

State. The State also offered into evidence a videotape of the stop, the DIC-24

statutory warnings, and evidence of Garcia’s two prior DWI convictions. The

defense did not present any evidence.

                                 III. JURY ARGUMENT

      In a single issue, Garcia argues that the trial court erred by overruling his

objection to the prosecutor’s improper comment on his failure to testify during

closing arguments at the guilt/innocence stage of the trial and that the error

contributed to his conviction.

                        A. The Complained-of Comments

      The prosecutor began his closing arguments with, ―Ladies and gentlemen,

all the testimony you heard came from four sources; those three officers and a

video; that’s it, that’s all there is in this case.‖ Garcia immediately objected to the

statement as an allusion to his failure to testify, and the trial court overruled the

objection.

                   B. Law on Comments on Failure to Testify

      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


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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 (Vernon 2005).

      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 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.




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       C. Prosecutor Did Not Comment on Garcia’s Failure to Testify

      The comment at issue here—that all of the evidence in the case came

from the three officers and the video of the stop, ―that’s it‖—was, at most, an

indirect allusion to Garcia’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 Garcia’s failure to submit to breath and field

sobriety tests; and as a comment on his failure to produce any evidence at trial—

not just his own testimony. See, e.g., Harris v. State, 122 S.W.3d 871, 884 (Tex.

App.—Fort Worth 2003, pet. ref’d) (upholding as proper prosecutor’s comment

that pointed to lack of testimony from other witnesses concerning any motive to

falsely accuse defendant); see also Benn v. State, 110 S.W.3d 645, 650–51 (Tex.

App.—Corpus Christi 2003, no pet.) (holding that comment to ―consider not only

who you heard, but who you didn’t hear,‖ was proper summation of the evidence);

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

Garcia’s failure to testify or otherwise refer to a particular aspect of the case that

only Garcia’s testimony could refute. Compare Livingston v. State, 739 S.W.2d

311, 338 (Tex. Crim. App. 1987) (holding 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


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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) (holding 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) (holding

prosecutor’s comment that ―[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).

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

to refer to Garcia’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.

               D. Even Assuming Error, the Error was Harmless

      Furthermore, even assuming the prosecutor’s comment was an improper

comment on Garcia’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.


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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 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.

      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 Garcia’s failure to testify;

that the prosecutor did not repeat or emphasize the statement; and that a juror

would probably not attribute much, if any, weight to any alleged error in the

comment.

      The jury was informed by both the State and the trial court that it could not

consider Garcia’s failure to testify.        In its rebuttal argument, the State

distinguished Garcia’s right to refuse a breath test and field sobriety test from his


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right not to testify. The State explained that the jury could not ―use the fact that

[Garcia] didn’t offer any evidence; that’s a whole different right; that’s a Fifth

Amendment Right. [The right to refuse to submit to breath and field sobriety

testing] is a different kind. You can use that against him.‖ The trial court’s charge

to the jury also included an instruction not to consider Garcia’s failure to testify,

and the jury is presumed to follow this instruction. See Colburn v. State, 966

S.W.2d 511, 520 (Tex. Crim. App. 1998).

      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 Garcia’s objection to the complained-of comment,

any error did not contribute to Garcia’s conviction. See Tex. R. App. P. 44.2(a).

We overrule Garcia’s sole issue.

                                   IV. CONCLUSION

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




                                                    SUE WALKER
                                                    JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 28, 2011




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