Randolph, Emanuell Glenn
2011 Tex. Crim. App. LEXIS 1632
| Tex. Crim. App. | 2011Background
- Appellant was convicted of aggravated robbery after an alibi defense at guilt and a refusal to testify at punishment.
- Prosecutor argued appellant did not take responsibility for the crime in closing; defense objected as comment on silence.
- Appellant testified at guilt stage denying involvement; Venturas identified him; dog and surveillance support followed.
- Appellant did not testify at punishment; jury sentenced him to nine years.
- Court of Appeals held first comment permissible but found second comment harmful under Swallow; majority reverses Swallow’s broad scope and remands for further error review.
- Dissent would affirm the appellate ruling and remand for new punishment hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the punishment-phase remark about responsibility violated Fifth Amendment silence protections | Randolph contends Swallow bars any remark on silence at punishment | Randolph argues Swallow permits only guilt-stage issues and disallows punishment-phase silence | Comment permissible if tied to guilt-stage testimony; not a direct punishment-silence comment |
Key Cases Cited
- Swallow v. State, 829 S.W.2d 223 (Tex.Crim.App.1992) (punishment-argument remark about remorse/silence improper when linked to guilt)
- Snowden v. State, 353 S.W.3d 815 (Tex.Crim.App.2011) (limits on applying Harris factors; context matters)
- United States v. Robinson, 486 U.S. 25 (U.S. Supreme Court 1988) (prosecution response if invited by defense argument; not violation)
- Busby v. State, 253 S.W.3d 661 (Tex.Crim.App.2008) (comments on shifting custodial statements deemed permissible)
- United States v. Rochan, 563 F.2d 1246 (5th Cir.1977) (prosecutor’s remarks not necessarily intended to comment on silence; alternative explanations possible)