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Garcia v. State4/23/2004
there and get [appellant]." He wanted to "get [appellant] out there and hurt him really, really bad." In the context that it was made, it was not so extreme or manifestly improper as to require reversal. We overrule issue eight.
COMMENT ON APPELLANT'S FAILURE TO TESTIFY
In his ninth issue, appellant complains that the prosecutor improperly commented on his failure to testify. During his closing argument, appellant's counsel argued, "[Appellant] is not subhuman. He is not lesser than us. . . . He can be rehabilitated. . . . In assessing punishment, again, I want you to think of rehabilitation." The prosecutor responded to this argument with the following:
As you know, rehabilitation, you have to-you have to own up and take responsibility for your actions before you're able to be rehabilitated. Has he done that? Have you seen any evidence that he has done that? The answer is no. Rehabilitation is not an option.
Appellant made only a general objection ("improper jury argument") at trial, whereas he has advanced a different complaint on appeal. Consequently, he has waived error. See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Further, even if error were not waived, the prosecutor's statement was not a comment on appellant's failure to testify. To determine whether a prosecutor's argument constitutes a comment on the failure of a defendant to testify, the complained-of language is analyzed within the context in which it was made and must be viewed from the jury's standpoint. Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). The test is whether the complained-of language was manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. Id. It is not enough that the language might be construed as an indirect or implied allusion to a defendant's failure to testify; the implication that the offending language made reference to the failure to testify must be a necessary one. Patrick v. State, 906 S.W.2d 481, 490-91 (Tex. Crim. App. 1995). A statement is not a direct comment on a defendant's failure to testify when it does not refer to evidence that can come only from the defendant. Goff v. State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996).
When appellant's father testified on his son's behalf during the punishment stage of the trial, he was asked by the prosecutor if appellant had taken responsibility for the offenses. He responded that appellant had not taken responsibility for the offenses because he maintained his innocence. Because the jury knew evidence about appellant's remorse or lack thereof could have come and did, in fact, come from appellant's father, the prosecutor's argument did not constitute a comment on appellant's failure to testify. It was, instead, summation of the evidence. We overrule issue nine.
CRUEL AND UNUSUAL PUNISHMENT
In his tenth issue, appellant complains that the use of a prior felony DWI conviction to enhance punishment in an aggravated sexual assault case constitutes cruel and unusual punishment. He argues that the purpose of the Texas habitual offender statute is not to create an offense, but to provide a more severe punishment for repeated criminal behavior. See Tex. Pen. Code Ann. § 12.42(b), (c)(1) (Vernon Supp. 2003). Appellant contends that he has no history of persistent criminal activity. Instead, he has been wrongfully exposed to a more severe punishment because of his persistent drinking problems. Appellant goes on to argue that "being a drunk is not a crime; it is a disease." Appellant made no trial objection and cites us to no case authority on appeal.
We agree t
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