                        NUMBER 13-09-00643-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

            CORPUS CHRISTI—EDINBURG
____________________________________________________

DEANN FLOYD,                                                             Appellant,

                                          v.

THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 94th District Court
                        of Nueces County, Texas
____________________________________________________

                         MEMORANDUM OPINION
               Before Justices Benavides, Vela, and Perkes
                Memorandum Opinion by Justice Perkes

      Appellant, Deann Floyd, appeals her conviction for felony theft (habitual felony

offender), a second-degree felony. See TEX. PENAL CODE ANN. § 31.03 (a),(b),

(e)(4)(D) (West 2010). A jury found appellant guilty and sentenced her to twelve years

confinement in the Institutional Division of the Texas Department of Criminal Justice.

By one issue, Floyd argues that the prosecutor should not have been allowed to instruct
the jury panel to consider her body language, if Floyd chose not to testify at trial. Floyd

contends that the instruction violates Article 38.08 of the Texas Code of Criminal

Procedure and the Fifth and Sixth Amendments to the United States Constitution. We

affirm.1

                                         I. BACKGROUND

        At the time of the offense, a plain clothes security officer observed Floyd remove

three bottles of perfume from boxed gift sets, place the bottles in her jacket pocket

without paying for the items, and leave the store. The officer testified Floyd displayed

darting eyes, the jitters, and was seemingly scared of anyone being around. The officer

further testified that when he approached Floyd and identified himself, she acted

scared, dropped the bottles, and resisted apprehension. Floyd did not testify at trial.

        The jury found that Floyd intentionally or knowingly appropriated tangible

personal property of a value less than $1500 by acquiring and otherwise exercising

control over the property without the effective consent of the owner and with the intent

to deprive the owner of the property.              In addition, the jury found that Floyd was

previously convicted two times for theft. The court entered judgment in accordance with

the verdict. This appeal followed.



        1
          Floyd’s original appellate counsel filed an Anders brief, see Anders v. California, 386 U.S. 738
(1976), but later withdrew because of new employment. Floyd’s substituted appellate counsel filed an
amended brief, which states: ―the original appellant’s brief is hereby adopted by reference as though
such facts, elements, and arguments were set forth herein . . . .‖ The United States Supreme Court has
advised appellate courts that upon receiving a ―frivolous appeal‖ brief, they must conduct ―a full
examination of all the proceedings to decide whether the case is wholly frivolous.‖ Penson v. Ohio, 488
U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.—Corpus Christi 2003, no pet.).
Accordingly, as to the issues set forth in the Anders brief, we have carefully reviewed the entire record
and have found nothing that would arguably support an appeal as to those issues. See Bledsoe v. State,
178 S.W.3d 824, 826 (Tex. Crim. App. 2005).

                                                    2
                                           II. DISCUSSION

        Floyd argues that, despite the absence of any objection, the trial court erred by

failing to cure error after the prosecutor was allowed to instruct the jury panel to

consider Floyd’s non-verbal body language if Floyd did not testify at trial.                        Floyd

contends that the instruction constitutes fundamental error.                   More specifically, she

argues that the instruction violates Article 38.08 of the Texas Code of Criminal

Procedure and the Fifth Amendment because it was a comment on her failure to testify,

and the Sixth Amendment because it affected her right to a trial before an impartial

jury.2 The prosecutor made the following statement during voir dire, of which Floyd

complains:

        there’s a mental state which means that someone intentionally or
        knowingly take the property. Now, how do you tell if someone did
        something intentionally or knowingly? Well, sometimes they’ll say ―Yes, I
        did this intentionally‖ or, ―No, I didn’t,‖ but no one has to give a statement
        in a criminal case, and if they do you can consider; if they don’t, you just
        don’t consider.

        Same with someone’s testifying. If they testify they’re just like any other
        witness. If they don’t testify you just ignore it. You don’t give them any
        extra weight because they don’t, you just say, ―Well, I think she would
        have said this.‖ You just don’t consider it at all.

        But you look at their actions. You tell by their conduct, their body
        language, the circumstances, and they say that most communication is
        nonverbal and that’s what you look at . . . .‖



        2
           Article 38.08 provides: ―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.‖ TEX. CODE
CRIM. PROC. art. 38.08 (West 2010). The Fifth Amendment generally prohibits a prosecutor from making
adverse comments about a defendant’s decision not to testify at trial. U.S. CONST. Amend V; see Griffin
v. California, 380 U.S. 609, 611–12 (1965). The Sixth Amendment gives the accused the right to confront
the witnesses against him, and states, in relevant part, that ―[i]n all criminal prosecutions, the accused
shall enjoy the right to. . . an impartial jury. . . ‖ U.S. CONST. Amend VI; see Pointer v. Texas, 380 U.S.
400, 403 (1965).
                                                    3
         To preserve a complaint for appellate review, a defendant must have presented

to the trial court, a timely request, objection, or motion stating the specific grounds for

the ruling desired. See TEX. R. APP. P. 33.1; Martinez v. State, 867 S.W.2d 30, 35

(Tex. Crim. App. 1993). Almost every right, constitutional and statutory, may be waived

by the failure to object. See Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App.

1986). Absent a timely objection, complaints about a prosecutor’s inflammatory

arguments or about his reference to a defendant’s failure to testify are waived. See

TEX. R. APP. P. 33.1; Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004);

Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004) (citing Dragoo v. State, 96

S.W.3d 308, 313 (Tex. Crim. App. 2003)). Absent an objection, a defendant waives

error unless the error is fundamental—that is, the error creates egregious harm.

Ganther v. State, 187 S.W.3d 641, 650 (Tex. App.—Houston [14th Dist.] 2006, pet.

ref’d). Egregious harm is such harm that a defendant has not had a fair and impartial

trial. TEX. R. EVID. 103(d); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984).

         Floyd did not make any of her complaints on appeal in the trial court, and the

prosecutor’s comments do not amount to fundamental error. A prosecutor’s comment

amounts to a comment on a defendant’s failure to testify only if the prosecutor

manifestly intends the comment to be, or the comment is of such character that a typical

jury would naturally and necessarily take it to be a comment on the defendant’s failure

to testify. Wead, 129 S.W.3d at 130 (citing United States v. Jefferson, 258 F.3d 405,

414 (5th Cir. 2001)); Bustamente v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001).



                                            4
       Nothing in the record suggests the prosecutor manifestly intended to comment

on Floyd’s failure to testify, and the typical jury would not have naturally and necessarily

understood the prosecutor’s comment to refer to Floyd’s failure to testify. Rather, the

record, when reviewed in context, shows that the prosecutor’s comments naturally and

necessarily refer to Floyd’s behavior at the scene of the crime, not in the courtroom at

the trial of this cause. Wead, 129 S.W.3d at 130. Regardless, Floyd waived this issue

on appeal. See TEX. R. APP. P. 33.1. Floyd’s sole issue is overruled.

                                       III. CONCLUSION

       We affirm the trial court’s judgment.

                                                   ______________________________
                                                   GREGORY T. PERKES
                                                   Justice

Do not publish. See TEX. R. APP. P. 47.2(b).

Delivered and filed the
22nd day of August, 2011.




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