 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Dotson v. State9/2/2004
eover, Dotson fails to show that the denial of his continuance resulted in unfair surprise, his inability to effectively cross-examine the State's witnesses, or his inability to adduce crucial testimony that could have been given by potential witnesses. Absent a showing of actual prejudice, we cannot hold that the trial court abused its discretion by denying Dotson's motion for continuance. See Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995). We overrule Dotson's fourth point.
VI. Jury Argument
In his fifth and sixth points, Dotson contends that the trial court erred by overruling his motion for mistrial because the State improperly commented on his failure to testify and his post-arrest silence during closing argument. The State maintains that the complained-of argument did not comment on Dotson's failure to testify or his post-arrest silence.
During closing argument at the guilt-innocence phase of the trial, the State made the following argument to the jury:
That is not self-defense, and that is consistent with what Mr. Walker said. He said when he discussed it in jail with the Defendant there was absolutely no claim of self-defense there. The Defendant described gunning it, stomping on it, and there was no claim of self defense to Mr. Walker.
Now, if he was going to try and look like the good guy in all this, why wouldn't he have said that?
Dotson immediately objected to the argument as improperly commenting on his failure to testify and his post-arrest silence. The trial court sustained Dotson's objection and instructed the jury to disregard the State's argument. Dotson then moved for a mistrial, and the trial court overruled his motion.
To determine if a prosecutor's comment constituted an impermissible reference to an accused's failure to testify, we must consider whether the language used was manifestly intended or was of such a character that the jury would naturally and necessarily consider it to be a comment on the defendant's failure to testify. Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979); see Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001); Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999). The offending language must be viewed from the jury's standpoint, and the implication that the comment referred to the accused's failure to testify must be clear. Bustamante, 48 S.W.3d at 765; Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). A mere indirect or implied allusion to the defendant's failure to testify does not violate the accused's right to remain silent. Patrick v. State, 906 S.W.2d 481, 490-91 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996). The use of a defendant's post-arrest silence is akin to a comment on his failure to testify at trial because it attempts to raise an inference of guilt arising from the invocation of a constitutional right. Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App.), cert. denied, 516 U.S. 832 (1995).
When the trial court sustains an objection and instructs the jury to disregard but denies a defendant's motion for a mistrial, the issue is whether the trial court erred in denying the mistrial. Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.--Fort Worth 1997, pet. ref'd) (en banc op. on reh'g). Its resolution depends on whether the court's instruction to disregard cured the prejudicial effect, if any, of the improper argument. Id. Generally, an instruction to disregard impermissible argument cures any prejudicial effect. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001); Dinkins, 894 S.W.2d at 357. In assessing the cur
Page 1 2 3 4 5 6 7 8 9 10 11 12 Texas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|