AFFIRM; and Opinion Filed May 28, 2013.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-10-01107-CR

JOHN KENNETH WEEKLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1

Dallas County, Texas

Trial Court Cause No. F09-55995-H

MEMORANDUM OPINION

Before Justices Bridges, O’Neill, and Murphy 

Opinion by Justice Murphy

John Kenneth Weekley appeals his robbery conviction, complaining in three points of 

error that the prosecutor improperly commented on his failure to testify at trial. We affirm. 

Background

In the early morning hours of June 6, 2009, Sarah Venable walked to her car after an 

evening with a group at a nearby bar. She got in her car and turned on the overhead lights to 

look for a cigarette. The next thing she knew, the driver’s side door opened, and she saw a man 

standing there. Venable tried to pull the door shut, but the man kept it open and hit her in the 

head with what she thought was his fist. The man got into her car, pushed her into the passenger 
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seat, and hit her three more times in the face. Venable attempted to jump out of the car by 

opening the passenger side door, but the man pulled her back in the car by her hair and arm. 

Venable then turned in her seat and kicked the man; because her door was still open, she was 

able to push her weight backwards and fall out of the car. The man drove off. 

Officer Michael Perry responded to Venable’s 911 call. Perry asked if she needed 

medical attention and then tried to find out what had taken place. Perry also asked Venable for a 

description of her car and the suspect. Venable described the suspect as a heavy-set male, who 

was approximately thirty-five years old. She said the man was about 245 pounds, five feet, nine 

inches tall, and bald. She did not say anything about whether the man had facial hair. Perry put 

the information about the car and suspect “out on the air” so other officers in the area could 

locate the suspect. 

The case was assigned to detective Ricardo Rodriguez, who interviewed Venable by 

phone the Tuesday following the robbery. During that interview, Venable told Rodriguez that 

the man was in his late 20s, which Rodriguez agreed was not consistent with the age range she 

gave to Perry. On June 16, Rodriguez called Venable again and asked her to come to the police 

station to view pictures of a possible suspect. Venable was told they found her car and that an 

arrest had been made.

Venable’s car was located by detective Judy Fries, who saw Venable’s car enter the 

parking lot of a pawn shop with two people inside the car. The driver fit the description of the 

suspect. Fries described the driver as “a man in his mid 30s, heavy set, kind of a balding type.” 

She identified appellant as the driver of the car. The other person was slender and “a little bit 

older” with gray hair. Fries called for uniformed officers “to make a traffic stop or to identify 

the occupants.” Appellant was arrested and initially charged with unauthorized use of a motor 
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vehicle. Appellant was described in the police report as forty-two years old, five feet, eleven 

inches, and 260 pounds. 

Venable went to the police station on June 17 to view a photo lineup. The photo lineup 

was created by Rodriguez, using one photo of the suspect and five “filler photos.” Rodriguez 

chose pictures of people that looked like appellant for the filler photos; he said “[t]he way I do it 

is, I match it to a suspect that’s in question.” He specifically chose pictures of men in their 40s, 

despite Venable’s description of a suspect in his late 20s. He admitted, however, that he is 

supposed to choose pictures that match the description provided by the witness. Rodriguez said

that because Venable had given multiple age descriptions of the suspect, he used his discretion to 

determine that “she might have made a mistake” on his age. 

Officer Jesus Lopez administered the photo lineup. Venable was shown the six photos 

one at a time and asked whether the person was “the guy that hit [her] and took [her] car”; she 

was instructed to answer yes, no, or “not sure.” Venable was not sure about one photo because 

the person looked like someone she knew from high school. But when she saw appellant’s 

photo, she “knew that they had the guy that attacked [her] and stole [her] car.” Venable 

“immediately said, yes,” and she pushed the photo away from her. She said she was “[o]ne 

hundred percent confident” about her identification and had no doubt that this was the same guy 

who robbed her. Lopez said that when Venable identified appellant, she was emotional and 

started crying. Lopez indicated on the lineup results report that Venable was “very confident” in 

her identification. 

Thereafter, appellant was charged by indictment with robbery. The indictment also 

contained two enhancement paragraphs, alleging prior felony offenses. Appellant’s case first 

went to trial in April 2010. That trial ended in a mistrial because the jury could not reach a 
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unanimous verdict. Appellant pleaded not guilty at his second trial, and the jury found him 

guilty as charged. He pleaded true to both enhancement paragraphs, and the jury sentenced him 

to twenty-five years in prison.

Venable testified at both trials. During her testimony at the first trial, Venable described 

appellant as having a mustache in response to a question about what the man looked like at the 

time of the robbery. In the second trial, she explained she was mistaken in that testimony 

because when she was asked to describe the man, she was staring straight at appellant who had a 

mustache at trial; she said she “gave the description of what he looked like right [there] in the 

court.” She testified at the second trial that the man did not have a mustache at the time of the 

robbery. She said the only time she mentioned facial hair was after the photo lineup when she 

commented that “he had more facial hair in that picture than he did in the car.” Venable testified

the dome light of the car was on the entire time and she got a good look at his face.

Fries testified on cross-examination that there are “lots of possibilities of what people do 

with stolen vehicles.” She agreed that stolen cars may be exchanged for drugs or used to commit 

other crimes. She would not agree with a generalization that stolen vehicles are used for a 

purpose and then dumped; she testified “people steal for different reasons.” Fries stated “[s]ome 

people use them for weeks” and said it is not common for a person to be caught driving the same 

vehicle the person stole, but she has seen it happen. She agreed that ten days is a long time to be 

“going around risking being caught in a stolen vehicle.” To do so, however, is still a violation of 

the law.

Fries described the condition of the car as “very trashy” and it looked like “someone was 

living out of it.” Venable also described the condition of the car as “absolutely disgusting” and 

that it had been “obviously lived in.” Venable found a bag of clothes, food containers, trash, 
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dirty clothes, a woman’s purse containing a prescription pill bottle with the name Janet or Janice 

Weekley, a vodka bottle, beer cans, cigarettes, and a wooden box that she said had pot residue.

Rodriguez said appellant was arrested less than a mile from the police station; that 

location also was a ten-minute drive from where the offense occurred. Rodriguez testified to 

cases “where people keep the [stolen] cars for several days, weeks, [or] months” and although he 

agreed it “would be incredibly stupid” to do so, he added, “you know, it’s been done before.” 

Rodriguez also testified that appellant told him he got the car from a guy named Eddie Fletcher, 

who was the other person in the car on the day appellant was arrested. Fletcher did not match 

Venable’s description of the suspect, and when Rodriguez interviewed Fletcher, he told 

Rodriguez he “had no idea about it.” Rodriguez acknowledged the fact that appellant did not 

“match exactly” Venable’s description; appellant was older and bigger than Venable described, 

and her description did not mention facial hair. But after Venable identified appellant as the 

suspect, “that took any doubt away from [Rodriguez’s] mind.”

Appellant did not testify at trial. His primary witness was Trent Terrell, a professor of 

psychology, who testified about eye-witness memory and photo lineup procedures. Terrell 

questioned the process by which the filler photos were selected, but he admitted the lineup was 

not deliberately suggestive. Terrell also agreed that it is not uncommon for a person to give a 

general description and then correctly identify someone in a lineup.

Discussion

Appellant complains in three points of error that the trial court erred by overruling his 

objections to the prosecutor’s comments on his failure to testify. He asserts the comments 

violated his federal and state constitutional rights and article 38.08 of the Texas Code of 

Criminal Procedure. See U. S. CONST. amends. V and XIV; TEX. CONST. art I, § 10; TEX. CODE 
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CRIM. PROC. ANN. art. 38.08 (West 2005). We review a trial court’s ruling on an objection to an 

improper jury argument for an abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. 

Crim. App. 2004); Lemon v. State, 298 S.W.3d 705, 707 (Tex. App.—San Antonio 2009, pet. 

ref’d). 

It is well settled that a prosecutor may not comment on the defendant’s failure to testify. 

Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Bustamante v. State, 48 S.W.3d 

761, 764 (Tex. Crim. App. 2001). Such comments violate the privilege against selfincrimination contained in the United States and Texas Constitutions and run afoul of article 

38.08 of the Texas Code of Criminal Procedure. U. S. CONST. amend. V; TEX. CONST. art I, § 10; 

TEX. CODE CRIM. PROC. ANN. art. 38.08 (defendant’s failure to testify “shall not be taken as a 

circumstance against him, nor shall the same be alluded to or commented on by counsel”); 

Snowden v. State, 353 S.W.3d 815, 818 (Tex. Crim. App. 2011). Argument will constitute a 

comment upon the defendant’s failure to testify if “the language used was manifestly intended or 

was of such a character that the jury would necessarily and naturally take it as a comment on the 

defendant’s failure to testify.” Cruz, 225 S.W.3d at 548. A comment on a defendant’s failure to 

testify is objectionable because it implicates an illegitimate inference by the jury that such failure 

is indicative of a defendant’s guilt because he did not take the stand and deny the State’s 

allegations. Snowden, 353 S.W.3d at 824–25. 

Appellant’s complaints stem from comments made by the prosecutor during the State’s 

rebuttal argument in the guilt-innocence phase of trial. Appellant’s counsel had presented his 

closing argument during which he asserted reasonable doubt existed because, among other 

things, it would be “stupid” to be caught in a stolen vehicle so close to the police station and 

location of the offense. Counsel emphasized Fries’s testimony that stolen cars “are passed 
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around on the streets” and argued the possibility appellant got the car from someone else. The 

defense also emphasized Venable’s possible memory issues, the discrepancy in the age-range 

Venable provided to officers, and the fact that Rodriguez “decided to break procedure” when he 

constructed a lineup that was not based on the description provided by the witness.

The prosecutor stated the following in rebuttal:

I guess the thing is, if all criminals were master minds, I wouldn’t have a 

job and you guys wouldn’t be here today. If everyone was smart enough not to 

get caught, then none of us would have to be here. We wouldn’t be catching 

anybody. But the facts are, this Defendant was caught in the car. The Defense 

wants you to believe that these cars are passed around like candy on the streets, 

but, you know, who knows, 20 or 30 people could have had access to this car; 

everybody just trading it out like people just hand out something of value, 

especially when they’ve taken a risk for it and trade it out.

And you’ve heard from Detective Fries, and she talked to you about you 

can’t generalize in these types of situations. I don’t know what was going 

through his mind. We don’t know what his motive was. We don’t know why he 

wanted that car, what he wanted anything for.

Appellant objected to the prosecutor “[c]ommenting,” stating “he doesn’t have a right.” The trial 

court overruled the objection. The prosecutor continued, “We don’t — that fact is, we don’t 

know about that, so it doesn’t always work —.” Appellant again objected to the prosecutor 

“commenting,” and the trial court overruled the objection. The trial court also denied the request 

for a mistrial.

Assuming without deciding the prosecutor’s comments about not knowing appellant’s 

“motive” or “why he wanted that car” were improper comments on his decision not to testify, we 

conclude any error by the trial court in overruling the objections was harmless. See Snowden, 

353 S.W.3d at 818, 824; Madden v. State, 799 S.W.2d 683, 699 n.28 & 700 (Tex. Crim. App. 

1990). A prosecutorial comment that impinges upon appellant’s privilege against selfincrimination is an error of constitutional magnitude and must be analyzed under rule 44.2(a) of 
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the Texas Rules of Appellate Procedure. Snowden, 353 S.W.3d at 818. When confronted with 

such an error, we must reverse unless we conclude beyond a reasonable doubt that the error did 

not contribute to appellant’s conviction. Id. at 818, 822 (citing TEX. R. APP. P. 44.2(a)). Our 

focus is on the error itself in the context of the trial as a whole, to determine the likelihood that 

the error “genuinely corrupted the fact-finding process.” Id. at 819. We consider the nature of 

the error, the extent it was emphasized by the State, the probable implications of the error, and 

the weight a juror would probably place on the error. Id. at 822. These factors are not exclusive;

other considerations may logically inform our harm analysis. Id. The analysis should at least 

take into account “any and every circumstance apparent in the record that logically informs” our 

determination whether beyond a reasonable doubt, the error did not contribute to the conviction. 

Id. at 822; see also TEX. R. APP. P. 44.2(a). 

The central issue in this case was whether the State proved appellant was the person who 

took Venable’s car. Appellant argues the error was not harmless beyond a reasonable doubt 

because this case was “one of circumstantial evidence, not one of overwhelming guilt.” He 

emphasizes Venable’s “various descriptions” of the man, the “biased” nature of the photo lineup, 

and Venable’s memory issues. He also emphasizes the State’s reliance on the fact that appellant 

was caught driving Venable’s car and maintains the defensive strategy was to show that there 

may be other explanations as to why appellant’s possession of the vehicle ten days after the 

robbery occurred did not prove that he was the one who actually stole the vehicle. 

Our review of the record, however, shows that any risk that the jury impermissibly

inferred appellant’s guilt based on an indirect reference to his failure to testify was low. The 

error, if any, was not emphasized by the State. The prosecutor did not make any other comments

similar to the complained-of comments. Nor did the prosecutor invite the jury to consider 
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appellant’s failure to testify at any other point in the trial. Instead, the comments were isolated 

and, when read in context, preceded what the prosecutor did emphasize—that appellant was 

caught behind the wheel of the car, he matched the description Venable gave to Perry, the car 

looked like it had been lived in and contained appellant’s possessions, and Venable picked the 

person caught driving her car from the lineup. The prosecutor also related to the jury the 

evidence supporting Venable’s identification of appellant, specifically that Venable was focused 

on the man’s face the entire time in the course of the robbery and that she went through each of 

the individual photos in the lineup. The jury saw the video of the lineup conducted with Venable 

and her reaction when she identified appellant as the man who took her car. The jury also heard 

testimony that Venable was very confident in her identification. The prosecutor further 

emphasized the lineup was a “good lineup” and Terrell agreed the lineup was not suggestive 

such that it was “telling her who to pick.” Just before the complained-of comments, the 

prosecutor referenced Fries’s testimony that you cannot make generalizations as to what people 

do with stolen cars. In that context, the comments do not necessarily or naturally refer to 

appellant’s failure to testify. See Cruz, 225 S.W.3d at 548; Snowden, 353 S.W.3d at 824–25. 

Finally, when we consider the probable implication of the error and the weight the jury 

likely placed on it, we review the instructions and other relevant information the jury heard on 

the issue. See Cantu v. State, 395 S.W.3d 202, 211 (Tex. App.—Houston [1st Dist.] 2012, pet. 

ref’d). The court overruled appellant’s objection and denied his motion for mistrial and therefore 

did not immediately instruct the jury not to consider appellant’s decision not to testify. But the 

jury was so instructed at other points in the trial. Before voir dire, the trial court explained

appellant’s Fifth Amendment right to remain silent and that the jury cannot hold his decision not 

to testify against him. The trial court also asked the jury panel if they could follow the 
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constitution and went row by row through the panel to see if “[e]verybody [was] okay with 

that?” Additionally, the court’s charge included an instruction not to consider appellant’s failure 

to testify, which was read to the jury before closing argument, and the jury is presumed to have 

followed these instructions. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).

After carefully reviewing the record and performing the required harm analysis under 

rule 44.2(a), we conclude beyond a reasonable doubt that any error did not contribute to 

appellant’s conviction or punishment. Snowden, 353 S.W.3d at 818. Accordingly, the trial court 

properly overruled appellant’s objections. We overrule appellant’s three points of error and 

affirm the trial court’s judgment. 

Do Not Publish

TEX. R. APP. P. 47

101107F.U05

/Mary Murphy/

MARY MURPHY

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

JOHN KENNETH WEEKLEY, Appellant

No. 05-10-01107-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court 

No. 1, Dallas County, Texas

Trial Court Cause No. F09-55995-H.

Opinion delivered by Justice Murphy. 

Justices Bridges and O’Neill participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 28th day of May, 2013.

/Mary Murphy/

MARY MURPHY

JUSTICE