                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00796-CR

                                       Brad Anthony SMITH,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009-CR-10882
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: September 24, 2014

AFFIRMED

           Brad Anthony Smith was convicted of aggravated assault with a deadly weapon. See TEX.

PENAL CODE ANN. § 22.02(a)(2) (West 2011). In a single issue on appeal, Smith asserts the

prosecutor made an impermissible comment on his pretrial exercise of the right to remain silent in

violation of the United States Constitution, the Texas Constitution, and the Texas Code of Criminal

Procedure. U.S. CONST., amend. V; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art.

38.08 (West 2005). We overrule Smith’s issue and affirm the judgment of the trial court.
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                                          BACKGROUND

       At trial, the State presented the following evidence that Smith was the person who fired a

gun at the complainant David Lee: the eyewitness identification by Lee of Smith as the man on

the yellow motorcycle who shot at him; the expert testimony that the multiple shell casings

recovered from Smith’s yard were fired by the same gun as the shell casings found in Lee’s yard;

the positive results from a gunshot-residue test administered on Smith the night of the shooting;

the recovery of a yellow motorcycle at Smith’s house; and the testimony by Smith’s then-girlfriend

that he admitted to the shooting a few months after his arrest. Smith testified in his defense and

denied shooting at Lee, explaining that he had hosted a party that night and several uninvited guests

crashed the party and that one of the uninvited males began firing a gun. Smith testified that the

unknown male rode a yellow motorcycle and was the shooter at Lee’s nearby house. Smith

admitted that he also owned a yellow motorcycle, but stated it was not in good running condition.

       At the beginning of closing argument during the guilt-innocence phase, the prosecutor

made the following statements:

           I actually wasn’t going to say anything, but I was a little bit inspired and I
           want to address a couple of comments that the defense made . . .

           You know, the State has a job to follow the rules, and we have attempted to
           comply with those rules. Defense would suggest that we have hidden things
           . . . We brought you all the evidence that we had in the case.

           With regard I want to answer a couple of questions that I anticipate you guys
           have. What about the photos of the bicycle - - or the motorcycle? Brad
           Smith told you that he had - - or told Detective, now Sergeant, Phillips that
           he had a yellow bike. The defense would suggest to you that they haven’t
           kept anything from us, that they provided their expert to us. Well, today or
           yesterday was the first time ever in two years that we’ve heard this story
           that Brad Smith made up. And he had to because the evidence was
           overwhelming as to him and he had to come up with something to explain –

           (emphasis added)



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       Defense counsel objected to the prosecutor’s comment on Smith’s “absolute constitutional

right to remain silent until his trial and he testified.” The trial court overruled the objection. The

jury subsequently found Smith guilty, and he received a twenty-year sentence of imprisonment.

                                             ANALYSIS

       On appeal, Smith contends the trial court erred in overruling his objection because the

prosecutor’s argument was an improper comment on his right to remain silent. We review a trial

court’s ruling on an objection based on an improper jury argument for an abuse of discretion.

Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010). Improper argument will warrant

reversal only if, “in light of the record as a whole, the argument is extreme or manifestly improper,

violative of a mandatory statute, or injects new facts harmful to the accused into the trial

proceeding.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).

       There are four general areas of permissible jury argument: (1) summation of the evidence;

(2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4)

plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). A

prosecutor’s remark constitutes an impermissible comment on the defendant’s right to remain

silent when, viewed from the perspective of the jury, the language used was manifestly intended

or was of such a character that the jury would necessarily and naturally take it as a comment on

the defendant’s exercise of his right to remain silent. Randolph v. State, 353 S.W.3d 887, 891

(Tex. Crim. App. 2011); Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). In

determining whether a prosecutor’s argument violates the defendant’s right to remain silent, the

courts view the comment from the jury’s standpoint and resolve any ambiguities in the language

in favor of the comment being a permissible argument. Randolph, 353 S.W.3d at 891. “Thus, the

implication that the State referred to the defendant’s failure to testify must be a clear and necessary

one. If the language might reasonably be construed as merely an implied or indirect allusion, there
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is no violation.” Id. In analyzing the comment, the courts consider the language within the context

in which it was used, including the timing of the comment. Bustamante, 48 S.W.3d at 767.

        Read in context, it is apparent that the prosecutor was responding to defense counsel’s

closing argument suggesting the State had “hidden things” from the defense and the jury, and had

a hidden agenda in its prosecution of Smith. The prosecutor’s statement that trial was “the first

time in two years that we’ve heard this story that Brad Smith made up” was an answer to defense

counsel’s immediately preceding statements that, unlike the State, the defense had not kept

anything from the State. Answering opposing counsel’s argument is a proper area of closing

argument. See Brown, 270 S.W.3d at 570.

        The prosecutor’s statement was also an attack on the credibility of Smith’s alibi testimony

about the party and the uninvited male guest being the shooter at Lee’s house; as such, it was a

reasonable deduction from the evidence. See id. Immediately after Smith’s objection was

overruled, the prosecutor continued undermining the credibility of Smith’s testimony, stating, “He

had to come up with something to match the evidence that we have, and the evidence is

overwhelming. You would have to abandon your common sense to believe his story.” The

prosecutor later argued that Smith made up the story about an uninvited male having a gun and

shooting at a blow-up Christmas toy in Smith’s yard during the party in order to explain away the

gunshot residue found on Smith’s hands. The focus of the prosecutor’s argument was to discredit

Smith by pointing out the timing of his alibi story and the ways in which his story did not make

sense and conflicted with other evidence. Counsel may properly comment on the credibility of

any witness during closing argument when the comment is based on reasonable deductions from

the evidence. See Richards v. State, 912 S.W.2d 374, 379-80 (Tex. App.—Houston [14th Dist.]

1995, pet. ref’d).



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           Once a defendant takes the stand and testifies in his own defense, the State may attempt to

impeach his credibility and may comment on his testimony and credibility during closing

argument, although it may not comment on the defendant’s post-Miranda 1 invocation of his right

to remain silent. See Feldman v. State, 71 S.W.3d 738, 755 (Tex. Crim. App. 2002); see also

Salinas v. State, 369 S.W.3d 176, 178 (Tex. Crim. App. 2012), aff’d, 133 S.Ct. 2174 (2013) (noting

that when defendant chooses to testify at trial, State may cross-examine and impeach defendant

with his pre-Miranda silence); but see Doyle v. Ohio, 426 U.S. 610, 611 (1976) (holding

prosecution may not impeach testifying defendant by commenting on defendant’s post-Miranda

silence because it violates the Fifth Amendment right against self-incrimination); Franklin v. State,

606 S.W.2d 818, 849 (Tex. Crim. App. 1979) (op. on reh’g) (impermissible to allow impeachment

of defendant based on his post-arrest silence). Further, when a defendant testifies to an alibi

defense during guilt/innocence, as Smith did here, that is an express denial of criminal

responsibility and the prosecutor may comment on the defendant’s denial of responsibility during

closing argument at either phase of trial. Randolph, 353 S.W.3d at 892, 895-96.

           Finally, even if the prosecutor’s statement could be interpreted as alluding to Smith’s

pretrial exercise of his right to remain silent, “it was not a direct and necessary comment on

appellant’s right to silence because there is an ‘equally plausible’ alternate explanation . . . that the

prosecutor was referring to appellant’s alibi testimony.” Id. at 896; see Bustamante, 48 S.W.3d at

765.




1
    Miranda v. Arizona, 384 U.S. 436 (1966).

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       Based on the foregoing reasons, we hold the trial court did not abuse its discretion in

overruling Smith’s objection to the prosecutor’s argument. Smith’s sole issue on appeal is

overruled and the trial court’s judgment is affirmed.


                                                 Rebeca C. Martinez, Justice


DO NOT PUBLISH




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