*1 by condition is caused a substantial change or product alteration of the after Johnny Wayne ALLEN, Appellant, sold, unreasonably it is for which dangerous condition the event Texas, Appellee. The STATE
have occurred. No. 761-82. change means or alteration Substantial Texas, Court of Criminal configuration operational En Banc. product are characteristics con- changed by affirmative or altered Sept. 1984. in a manner that person of some duct reasonably could not defendant in the intended or would occur
foreseen product. Substan-
foreseeable use change does not include or alteration
tial tear or
reasonably wear and foreseeable
deterioration. objection
The basis of Woods’ to the fore- that all instruction was of the evi- in the
dence case showed that the altera- reasonably by
tion in issue was foreseeable Carrier,
Crane so no evidence of sub-
stantial change or alteration to the well
servicing rig supported the An instruction.
examination of the record convinces us many contradictory
so statements
foreseeability made witnesses that were be
it cannot said that as matter of law reasonably foreseeable Crane Carri-
er that would occur. alterаtion point made last Woods it was error for the court to trial
instruct on sole cause. We conclude error,
the instruction was not harmful be given
cause the cause instruction sole two, conjunction with issue which
jury did not its consider result of
negative issue one. This case answer to
differs First International Bank in Roper Corp., 686 S.W.2d
San Antonio v. (Tex.1985), cause in because preceded Roper
struction all issues jury’s
this was decision. influential
Here, only placed with instruction was
an issue which the did not consider
and therefore not harmful error. of the courts below are
affirmed.
381 on the accused’s failure to to be a comment State, supra, at 105. testify. v. Nickens State, 414 24 S.W. Also see Dawson v. instance, seem to there does not this complained of dispute real that the be “Somebody knows where it argument, heard, Johnny from the evidence hap [appellant] Allen knows what Wayne alone, it,” standing constituted a pened to failure allusion to the prohibited State, 638 S.W.2d testify. Allen v. to See (Justice 225, (Tex.App. Dallas1982) 228 — dissent). majority of the Carver’s Dallas, Stephen Cooper, appellant. for J. held, however, appeals court of Wade, Atty., Dist. Anne B. Weth- Henry argument permissible complained of erholt, Templeton, Revesz and Maridell Joe argument invited because it constituted Dallas, Poole, Ronny Attys., Asst. Dist. N. comment on the evi and was also a fair Austin, Huttash, for Atty., State’s Robert dence, appellant’s as ovеrruling thus the State. on his failure sertion that was comment State, supra. dis
to
Allen v.
holdings and reverse the
with these
conviction.
PETITION
ON APPELLANT’S
OPINION
The record reflects
FOR DISCRETIONARY REVIEW
Allen,
burglary
convicted of
appellant, was
pun-
assessed his
of a
TEAGUE,
habitation.
Judge.
(15)
ishment, enhanced,
years’
at fifteen
“It
and fundamental law in this
is basic
penitentiary.
In his
confinement in the
the failure of an accused tо
he com-
appeal,
error on
testify may
subject
of comment
be
attorney vio-
plained
prosecuting
com
prosecution
[because]
[a]
by directly
principle of law
lated the above
against
privilege
ment is in violation of the
at his
commenting on his failure
1,
self-incrimination contained in Article
trial.
Constitution, and
Section 10 of the Texas
hеld, 8-4,
The Dallas Court
38.08,
express
violation of Article
[is]
(1)
State, supra,
v.
see Allen
a com
Ann.C.C.P.
...
Vernon’s'
[Such
attorney was invit-
prosecuting
ment of
presents a federal constitutional
also
ment]
(2)
argument and
ed
question as the same has
held viola-
been
granted
the evidence. We
fair comment on
of the self-incrimination clause
tive
discretionary review
appellant’s petition for
Amendment,
applicable
made
Fifth
which is
the ma-
to make the determination whether
by virtue of the Fourteenth
to the States
correctly de-
court of
jority of the
527
Bird v.
Amendment...”
find it did not
cided the issue. We
891,
(Tex.Cr.App.1975). Also
893
S.W.2d
and re-
judgment of affirmance
reverse its
(Tex.
v.
604 S.W.2d
see Nickens
the trial court.
the cause to
mand
California,
Cr.App.1980);
Griffin
1229,
prior
peals opinion, in its During argument, appellant for counsel counsel “chose to mention subject finger- complainant’s the attacked the identification [of prints] for the аrgu- first time in final testimony complainant the basis that the ment,” (227), is incorrect. appellant was mistaken when she identified person leaving apart- as the she saw her dispute. During facts are not in the argued ment with her receiver. He also March, 1980; February months of ap- and bring the State had failed to pellant worked as the head maintainenance complеte picture correctly of the case. He person apartment at an complex in Dallas argued that the failed to account State had complaining where the In witness lived. arrest and chastised the February, appellant, apparently using a prosecuting attorney bringing for not out key, opened master around midmoming, during complainant his examination of the complainant’s the door to the apartment more detailed the information about com- apartment and started inside of the when receiver, i.e., plainant’s although Sony the he then complainant. saw the When asked there, complainant testified that she identified the doing what he was he immediately Sony looking possession told her he that was in the for “Linda.” person leaving apartment, When informed that no “Linda” lived the she saw her oth- apartment, he gave stated that he must have the er than the brand name she no wrong apartment and left. regarding further information re- ceiver. April, appellant job was fired from his for reasons not reflected the record. appellant Cоunsel for also following: complainant testified that on the af- 12, 1980, question, May ternoon in she saw See, the has a State of Texas burden appellant leaving her with what proof and a criminal it’s not she identified as her receiver under gallery a modern art and would State doing arm. She asked him what he was you of Texas even bother to tell replied: with her reсeiver. He “Mainte- or not Allen was arrested nance,” premises and then ran from the you and wouldn’t think it be im- possession. with the receiver in his very portant they if arrested him the day wearing exactly the same kind next any The record is devoid of evidence complainant had de- of t-shirt showing appellant [as when or where was ar- anything like didn’t hear committing scribed] rested for the offense. The bring that. The State of Texas didn’t receiver was never recovered either the any the stereo—the of that complainant police. or the The record is recognized complainant] stereo that any police also devoid of evidence that the [the away, she read the word any any made efforts to recover away did the [Sony] three floors prints complainant’s from inside of the any effort to show apartment, State of Texas make nor is there evidence that anything about stereo? attempted to look for the receiv- if had pawn-shop, er at a where Wouldn’t that be location such as day argu- court inferred from arrested him the next or bringing ment. after? The of Texas is spec- I can’t incomplete picture. When viewed the context have or they might ulate on what else ment, appel- we find that counsel when truth brought but the referring lant was in his in this you heard the matter what undisputed fact the State did not 40 minutes courtroom for present any evidence to corroborate the po- hear efforts of didn’t аbout testimony complainant making any lice officers out receiver, her person who had taken asking anybody or sort of merely, implicitly, arguing he was albeit finding by neighbors individ- was seen eyewitness testimony alone inher- complain- uals to collaborate [sic] ently suspect. result, *4 story there is no and ant’s] argument, find from his that went to We Are or do sure collaboration [sic]... undisputed the facts that there was no evi- of you have a doubt because the State of dence before the as to when or where satisfy you didn’t Texas if the State appellant was arrested or what kind of you, convince of Texas didn’t then wearing he dress was when arrested guilty vote not because that is should possession he was in of the recеiv- by your You in say
fair.
verdict whether
arrested,
con-
er when
when viewed
the
trial,
enough
this short
have heard
argument,
merely
text of the
counsel was
referring
undisputed
to the
fact that there
Thereafter,
making
open-
after
one brief
no
the
show
evidence before
to
statement,
attorney
prosecuting
the
this,
might
if it
this
have
which
had existed
his
the
then commenced
with
testimony.
the complainant’s
corroborated
following statement:
“I don’t intend to
exist,
did
counsel
Ergo, as it
therefore
the
that
chase all
trails
rabbit
[counsel
argued
implicitly
that there was a reason-
appellant] left.”
guilt.
client’s
able doubt
his
counsel for appellant’s
to
argument,
his
Taken in the context of
we
argument, that related to the failure оf the
the
general reference to
find that counsel’s
finger-
not taking
State to account for
of
undisputed
fact of the lack
prints,
argued
the
the
printing
police
specifi-
did not
done
the
following:
Sony
“What was stolen was her
receiver, but, instead,
the
cally refer to
are
to
going
AM/FM receiver. Where
we
police
fin-
specifically referring to thе
Byck
fingerprints?
find the
Mr.
[defense
general. Appellant implicit-
gerprinting
attorney]
any finger-
said
didn’t find
we
ly argued
police attempted
that
the
had
Sony
prints. Show us the
receiver
complain-
of the
inside
obtain
maybe
get you
we will
some
might very
have
apartment, they
well
ant’s
Somebody
re-
knows where it
stereo
from
door-
appellant’s prints
the
obtained
is,
heаrd,
the evidence you
ceiver]
which the receiv-
from the table on
knob or
hap-
Allen knows what
not,
resting. Ergo,
did
er
been
had
[Emphasis
it.”
pened to
Added].
argued
implicitly
therefore
counsel
the
a reasonable doubt as to
portion
argu-
is the underscored
there was
It
guilt.
appellant complained
ment about which
in his
appeal
error.
argu-
cоntext
the
viewed
When
ment,
that when counsel
we think
is clear
first find that counsel
undisputed
referring to
fact
argument did not constitute
invitation to was
no evidence before
prosecuting attorney
argue
as he
there was
ever made
had
do
find that
showed
did. Nor
counsel’s
whereabouts of
to account for the
impression
efforts
ment left “the
receiver,
arguing that had there
he
produce detailed evidence of
should
linked
this
burglary...,”
as the
been
stereo taken
appellant to
Ergo,
the crime.
as such
carrying
evi- ment and
her stereo receiver in
exist,
dence did not
counsel therefore im-
his hands. When she asked
what
plicitly argued that there was a
doing
receiver,
reasonable
he was
with her stereo
he
doubt as
appellant’s guilt.
to the
replied
past
“Maintenance” and ran
her
steps.
down the
complainant
testified
above,
In light
we hold that under
she ran to her
and called
argu
the circumstances of this case the
police;
thereafter
she went
prosecuting attorney,
ment of the
“Some
apartment complex parking lot to look for
body
knows where it
from the evidence
appellant but she
was unsuccessful
her
heard,
Johnny Wayne Allen knows
quest. Finally,
complainant
testified
it,”
happened
constituted a direct
that her stereo receiver had not been recov-
law,
violation of the
principle
above
ered.
is incurable error.
and compare
See
Thompson
(Tex.
v.
we didn’t bring any fingerprints. Show *5 ONION, P.J., DAVIS, and TOM G. us the maybe receiver and we will McCORMICK, JJ., W.C. DAVIS and get you dis- some Somebody sent. knows where it the evidence heard, Johnny Wayne Allen knows happened
OPINION ON STATE’S MOTION to it. FOR REHEARING honor, Objection, “MR. BYCK: You that’s a direct comment on the Defend- McCORMICK,Judge. testify. ant’s failure to Appellant burglary was convicted of of a Jury “THE The COURT: will consid- Punishment, habitation. by pri- enhanced er the last remark of counsel for conviction, was assessed at fifteen purpose. years’ appeal, appellant confinement. On taking grant- “MR. If BYCK: that was a prosecutor indulged in im- exception objection, of our porper jury argument by commenting on respectfully move for a mistrial. testify. failure to The Dal- “THE COURT: You Overruled. las Court of held that a reasonable your exception in the record. interpreted prose- would not have argument cutor’s as a commеnt on the prosecutor]: “MR. REVESZ The testify, failure to but rather as only thing that was taken from that explanation in to defense coun- apartment only thing and the he left prior argument. sel’s Allen v. on was the AM/FM S.W.2d 225 receiver and that has been recov- and affirm the of the trial court ered. said she doesn’t have it She Appeals. and the Court of back....” complaining At trial the testified witness continues to maintain that 12, 1980, during May argument afternoon of constituted a comment on However, go she left her laundry reading his failure to apartment complex. argument room of her She relat- of the entire of both sides stayed laundry argument ed that she in prosecutor’s room shows that the ap- approximately clearly ten minutes. she earlier As invited returning apartment, pellant’s attorney. to her third floor Earlier the defense at- she appellant coming following argument: apart- torney saw the out of her had made the occurred Larkin v. A similar situation presumption about the “... we talked 284, 248 S.W.2d 157 Tex.Cr.R. Well, (sic). certainly the State innocense (1952) (Opinion Appellant’s Second presumption go and we rebutted Rehearing), a case which Motion for rule, proof the next burden defendant, superintendent of the Lake- Texas to duty of the State of that is Angelo, in San view School District and all of bring you all the information ad- Evidence convicted of embezzlement. and all the facts and all of the witnesses that Larkin had nev- at trial showed duced they the evidence thаt need and accounting to the a written er submitted guilty need to form a conclusion of be- regarding the funds he was board school Has the State yond a reasonable doubt. closing ar- embezzling. In his accused of I of Texas showed that burden? submit attorney argued that the gument, Larkin’s being You’re that it has not.... accounting of had made no school board Allen all to cоnvict asked and, reality, the defendant the funds See, testimony. person’s on one nothing. In re- school owed the board proof and of Texas has a burden of State argued the follow- sponse prosecutor it’s not a modern a criminal ing: gallery and of Texas art State “ reported to this Larkin has not ‘E.O. or not even to tell bother money.’ has done with that day whаt he arrested and Johnny Wayne Allen was reports, here it is the 29th ‘Speaking of you think it would be wouldn’t November, report still no day of very next arrested him the ‘In answer to Mr. Scarbor- from Larkin.’ wearing exactly the same kind of t-shirt bring the ‘Why didn’t we ough’s question anything like that. you didn’t hear put them on the table.’ E.O. cards and bring any of of Texas didn’t only man that has the Larkin is the the stereo—the stereo оnly is the man that cards. E.O. Larkin recognized Ms. McBride only Larkin is the man knows. E.O. *6 away, she read word bring information from could us that of Texas make away and did the State make a Why didn’t E.O. Larkin records. anything effort to show about if he made Larkin knew that report. Mr. the stereo? Wouldn’t that be he show that report a that would ” day him the next or if had arrested guilty of embezzlement.’ of Texas is after? The State prosecu- that the appeal, Larkin On I bringing you imcomplete picture. a reference to his constituted tor’s remarks they might speculate can’t on what else Court overruled testify. This failure to brought have or not have of error and held that the matter what heard truth of on argument was based prosecutor’s for 40 minutes and what this courtroom in answer and was made the evidence any efforts of the you didn’t hear about argument. defense counsel’s making officers out and on a de prosecutor’s A comment asking anybody fingerprints or sort of testify offends both failure to fendant’s neighbors finding or individ- seen as well and Federal Constitutions our State story Ms. McBride’s uals to collaborate 38.08, Nickens Article V.A.C.C.P. result, there is no collabora- (Tex.Cr.App.1980). State, 101 604 S.W.2d tion.” a that before However, well-settled it is implying Clearly the defense comment on to be a is held comment had some evi- must testify the State that it defendant’s failure intended, of such a manifestly stereo itself or dence—either the be either naturally and it was off the stereo—that prints taken character it to be а comment necessarily The State’s take keeping jury. from the testify. Hicks v. failure to to defense defendant’s merely ment was (Tex.Cr.App.1975). 177 S.W.2d 525 no more. argument and counsel’s to a implication A mere or indirect allusion failure to will not result
defendant’s
in reversible error. Pollard v.
S.W.2d find
We offending
instant case was no of the varie endeavoring to answer
ty. The State was missing query
the defense counsel’s receiver and namely the stereo context,
the thief’s In this interpret
do was led to not believe the prosecutor’s remarks as a comment on failure to argument was invit
with the State that the argument of previous
ed defense merely a summation of
counsel and was
the evidence—the evidence showed
only happened to knew what Appellant’s ground of
the stereo receiver.
error is overruled. of the Court
and the trial court are affirmed. CAMPBELL,
TEAGUE, MILLER and
JJ., dissent.
CLINTON, J., participating. *7 DICKEY, Appellant,
Billy Delbert Texas, Appellee. STATE
No. 023-84. Texas,
Court Criminal
En Banc.
Oct. 1984.