*1 paragraph first of the indictment out sets
first trial. The information those of acquitted
same matters. He was and third alleged in the second
matters indictment, and first
paragraphs of that those. retried
could not have been The ground of error.
We overrule
judgment affirmed. MeConathy, Dallas, appellant.
Tex Klein, Dal- Atty., Michael A. Asst. Dist. las, appellee. DE-
Before WHITHAM VANY, JJ. COYLE, Appellant,
David Glenn WHITHAM, Justice. ag- Appellant appeals two convictions Texas, Appellee. of STATE gravated sexual In his third assault. 05-84-00525-CR, Nos. 05-84-00526-CR. appellant complains that of commented on his failure Texas, Appeals Court agree. Accordingly, we re- testify. We Dallas. remand. verse and 12, June 1985. trial, phase punishment At Rehearing 21, Denied June remarked, appellant object- the trial ruled as follows: ed and about to talk what he looks in the courtroom now. You’ve looked at all I’m the trial —and that’s court- just his actions here room while you seen his actions rape— aggravated remorse for COUNSEL]: [DEFENSE sex- COUNSEL]: [DEFENSE Honor. Counsel is Your the defendant’s failure I’ll tion. argues that
Appellant con- (Tex.Crim.App.1984) trols. punishment phase during the
marked one iota “[y]ou haven’t the trial remorse, shame.” case, the accused’s son, as in the *2 fore, objection was present overruled. in the as did the court of appeals the court of criminal appeals Dickinson, reversed. we conclude misplaced. that reliance Hawkins Asserting that Dickinson does not con- We fail to see the connection between the trol, the State directs our attention appellant’s exhibition of teeth and “one sin- prosecutor’s language present case gle iota rape.” of remorse for about, “... that’s all Instead, treat the State’s “teeth exhibi- his actions here in this courtroom while ploy tion as present demeanor” case you’ve argues watched him.” The State as the court of criminal treated prosecutor’s that the commenting remark “demeanor” remark in Dickinson when it on the absence of “one iota of re- stated: appellant morse” from Ap- “indicates that pellant had reluctantly shown his teeth to agree appel- We are jury” during guilt or innocence attempt by lant’s counsel that stage Relying of the trial. on Hawkins v. comment on not to appellant’s testify, by using failure to the State prosecutor’s asserts that the “demeanor,” the word amounted to a present was, therefore, mark in the case transparent attempt jury’s to call the at- calling appellant’s attention to demeanor. appellant’s tention invocation of right his to remain silent.
Thus, we look to the record to tell us transpired appellant what was asked Dickinson, transparent at 324. What was jury to show his teeth guilt or to the court of criminal stage innocence of trial. equally transparent son is to this court in May I have the de- case. time, fendant come forward at Consequently, we conclude that the at- Judge? tempt by not to comment on him, THE COURT: Where did appellant’s testify, by using failure to Mr. Carden? I’m talking words “and that’s all If the Court would di- just his actions here in this courtroom top rect him to show the his teeth? him”, while amounted to a A I don’t see them. JUROR: transparent attempt to call the atten- A JUROR: can’t see his teeth. appellant’s tion to the invocation of his THE DEFENDANT: It’s hard to smile right to remain silent. fur- We conclude circumstances, ther, therefore, under the Your Honor. is control- ling jury— Did language: son ’s All I A JUROR: didn’t see his teeth. lips.
saw approve us to [F]or was made at- Show them [DEFENSE COUNSEL]: torneys permitting jur- your teeth. see his teeth? would amount Can infer ors to lack of remorse you, Coyle. THE Thank Mr. COURT: appellant of his constitu- exercise THE DEFENDANT: You’re welcome. tional to remain silent. We decline exhibition, than Other this teeth the State specious approve place does not refer us to other appellant’s that it went to reflecting any appellant’s act on in the courtroom. demeanor part might us to conclude that enable follows, at 325. It and we himself misbehaved conducted challenged argument in the that the improper in an manner the course constitutes, proper not a ex- case of his trial. at 323. We See pression upon appellant’s courtroom de- appel- fail to see the connection between meanor, but, instead, constitutes an indi- lant’s demeanor failure to teeth and emotion of remorse. There- rect comment on they express under put As theories displeasure. their court in Dickinson-. effect necessary and natural allegory area of I liken this law to comments, to “re- that went cut fire- attempted who the woodcutter morsefulness,” to direct- ... amounted lengths. mea- Instead of wood in uniform *3 failure attention to the
ing original, the log successive to the suring each mental testify to immediately log the it to the cut [this he measured which, there cord, as is no that the end of he discov- before. At the state] secrecy log unlocked and ever that the last bore no resemblance ered [its] was] [it removed, only by length could have known to the first. been or the the appellant, appellant was the Undoubtedly, jury argument this resem person given who could evi- the bles going state], dence mental [this therefore, and, log is the last —which cut— required up his give would have him to doubt, seriously how must be reversed. right of self-incrimination. ever, the framers our constitution wrote, had this extreme mind when at any [any person] “nor shall be Having found whether we consider him against to be a criminal case witness court of that error is reversible error. The CONST, do I amend. V. Nor self.” U.S. appeals has often held that: criminal legislature this our envisioned believe that violates [W]hen enacting TEX. application when extreme 38.08, of Art. and the provisions the ... (Ver 38.08 art. CODE CRIM.PROC.ANN. brought matter is before this court 1979) principles which extends the non review, clear, duty this and the Court’s is failure the Fifth Amendment: “[T]he responsibility for the must rest not be testify defendant shall attorney.... solely upon the him, nor against circumstance taken as a rarely by an error is cureable Such [sic] to or commented shall the same be alluded disregard. to the instruction And, finally, counsel cause.” In at 322. interpretation I do not believe ecutor remarked absence of (Tex.Crim. State, 419 359 Ramos and the trial of remorse accused (cited by in Dickin App.1967) objection. court overruled accused’s ex son), 38.08 of article authorizes case, remarked the test: application. Ramos states treme of one remorse from on the absence iota of language used must be looked “the appellant and trial court overruled standpoint jury, from objection. used had language implication reversed and court of to the defendant’s reference conclude, therefore, We manded. It is must be a one. testify and re- we must reverse might be language sufficient that the not mand. implied indirect allu- as an construed and remanded. Reversed sion thereto.” Ramos, 419 S.W.2d SPARLING, J., concurs. is as offending in this case Justice, concurring. follows: little you “Did see by in the result reached I concur he was and when grin on his face now ac- understatement majority. It arguing? Lisa when she was looking at here and knowledge that like he looks to talk about what in Dickinson I want court of criminal looked You’ve now. State, courtroom that’s trial —and one arguments do like the not about, just his actions however, disagree, ve as if the had made record in this courtroom while trial. They reflect the descriptions unsworn both aggravated rape— regarding remorse conduct. The defendant's witnesses, jurors, as can see themselves [DEFENSE ATTORNEY]: if if the event occurred or it was mischarac- aggravated sex- terized, thereby resolving any issue that prosecutor’s description is erroneous. [DEFENSE ATTORNEY]: Indeed, in Dickinson charac Your Honor. Counsel is prosecutor’s argument in Haw terized the defendant’s failure to (Tex.Crim. kins v. THE COURT: I'll App.1983), amounting directing “to [Emphasis tion.” added.] *4 they juror’s attention to that which them Applying the Ramos to the above ar- test witnessed, namely, had de selves cannot, gument, my eye, I fathom mind’s slept during fendant had his trial.” Dic laypersons thinking to themselves kinson, If the jurors referring to the competent the defendant to witness Or, stated testify. defendant’s failure sleeping, then follow that it would differently, prosecutor’s unequivocal competent appellant’s “lit were to see our statement, “that’s says grin.” majority Yet tle actions,” does not—be a not—could showing-of-the-teeth scenario is the allusion to a failure to reflecting “only place Thus, holding prod- is a the record appears it that our law, part.” I thoughtful conclude uct recent case with no Amendment, majority Fifth article 38.08 has view to the dismissed grin” though Like the Ramos. woodcutter about the “little comment original sight lost of our standards. outside the record. it were Dickinson, as in Finally, the rationale in sum, majority only concur with here, hinged partially it. demands But because Dickinson misbe- fact the record did not reflect apply if we the Ramos test and think that the defendant in court. The havior of jury’s per- look at grin” to a “little ecutor referred spective, this cannot be a comment on complain- in Dickinson said the and testify especially defendant’s — ant “hid her face shame.” Neither strenuously argued here nor referring to the defend- that he was only how, practical from a view- son tells us fact that we court. The ant’s open point, act of the defendant in an in a not result abhor the should report- gets the record. Is it the court into pertinent more in the absence of and record responsibility er’s observe rely. theory upon judge gestures? Does conduct gestures responsibility to make have the
appear record? If the ef-
says an “let the record reflect ...” establish, example,
fort an obscene defendant, properly
gesture by the is it Or, alternatively, should record? testify under
prosecutor take the stand and were in that he and the
oath to facts equal position to see? in ar- prosecutor’s verbal rendition
gument of his observation of the weight
would, same I would have the