NUMBER 13-09-00643-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI—EDINBURG

____________________________________________________

DEANN FLOYD, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 94th District Court

of Nueces County, Texas

____________________________________________________

MEMORANDUM OPINION

Before Justices Benavides, Vela, and Perkes

Memorandum Opinion by Justice Perkes

Appellant, Deann Floyd, appeals her conviction for felony theft (habitual felony 

offender), a second-degree felony. See TEX. PENAL CODE ANN. § 31.03 (a),(b), 

(e)(4)(D) (West 2010). A jury found appellant guilty and sentenced her to twelve years 

confinement in the Institutional Division of the Texas Department of Criminal Justice. 

By one issue, Floyd argues that the prosecutor should not have been allowed to instruct 
2

the jury panel to consider her body language, if Floyd chose not to testify at trial. Floyd 

contends that the instruction violates Article 38.08 of the Texas Code of Criminal 

Procedure and the Fifth and Sixth Amendments to the United States Constitution. We 

affirm.1

I. BACKGROUND

At the time of the offense, a plain clothes security officer observed Floyd remove 

three bottles of perfume from boxed gift sets, place the bottles in her jacket pocket 

without paying for the items, and leave the store. The officer testified Floyd displayed 

darting eyes, the jitters, and was seemingly scared of anyone being around. The officer 

further testified that when he approached Floyd and identified himself, she acted 

scared, dropped the bottles, and resisted apprehension. Floyd did not testify at trial. 

The jury found that Floyd intentionally or knowingly appropriated tangible 

personal property of a value less than $1500 by acquiring and otherwise exercising 

control over the property without the effective consent of the owner and with the intent 

to deprive the owner of the property. In addition, the jury found that Floyd was 

previously convicted two times for theft. The court entered judgment in accordance with 

the verdict. This appeal followed. 

 

1

Floyd’s original appellate counsel filed an Anders brief, see Anders v. California, 386 U.S. 738 

(1976), but later withdrew because of new employment. Floyd’s substituted appellate counsel filed an 

amended brief, which states: ―the original appellant’s brief is hereby adopted by reference as though 

such facts, elements, and arguments were set forth herein . . . .‖ The United States Supreme Court has 

advised appellate courts that upon receiving a ―frivolous appeal‖ brief, they must conduct ―a full 

examination of all the proceedings to decide whether the case is wholly frivolous.‖ Penson v. Ohio, 488 

U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.—Corpus Christi 2003, no pet.). 

Accordingly, as to the issues set forth in the Anders brief, we have carefully reviewed the entire record 

and have found nothing that would arguably support an appeal as to those issues. See Bledsoe v. State,

178 S.W.3d 824, 826 (Tex. Crim. App. 2005). 

 
3

II. DISCUSSION

Floyd argues that, despite the absence of any objection, the trial court erred by 

failing to cure error after the prosecutor was allowed to instruct the jury panel to 

consider Floyd’s non-verbal body language if Floyd did not testify at trial. Floyd 

contends that the instruction constitutes fundamental error. More specifically, she 

argues that the instruction violates Article 38.08 of the Texas Code of Criminal 

Procedure and the Fifth Amendment because it was a comment on her failure to testify, 

and the Sixth Amendment because it affected her right to a trial before an impartial 

jury.2 The prosecutor made the following statement during voir dire, of which Floyd 

complains:

there’s a mental state which means that someone intentionally or 

knowingly take the property. Now, how do you tell if someone did 

something intentionally or knowingly? Well, sometimes they’ll say ―Yes, I 

did this intentionally‖ or, ―No, I didn’t,‖ but no one has to give a statement 

in a criminal case, and if they do you can consider; if they don’t, you just 

don’t consider. 

Same with someone’s testifying. If they testify they’re just like any other 

witness. If they don’t testify you just ignore it. You don’t give them any 

extra weight because they don’t, you just say, ―Well, I think she would 

have said this.‖ You just don’t consider it at all.

But you look at their actions. You tell by their conduct, their body 

language, the circumstances, and they say that most communication is 

nonverbal and that’s what you look at . . . .‖

 

2

Article 38.08 provides: ―Any defendant in a criminal action shall be permitted to testify in his 

own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance 

against him, nor shall the same be alluded to or commented on by counsel in the cause.‖ TEX. CODE 

CRIM. PROC. art. 38.08 (West 2010). The Fifth Amendment generally prohibits a prosecutor from making 

adverse comments about a defendant’s decision not to testify at trial. U.S. CONST. Amend V; see Griffin 

v. California, 380 U.S. 609, 611–12 (1965). The Sixth Amendment gives the accused the right to confront 

the witnesses against him, and states, in relevant part, that ―[i]n all criminal prosecutions, the accused 

shall enjoy the right to. . . an impartial jury. . . ‖ U.S. CONST. Amend VI; see Pointer v. Texas, 380 U.S. 

400, 403 (1965).
4

 To preserve a complaint for appellate review, a defendant must have presented 

to the trial court, a timely request, objection, or motion stating the specific grounds for 

the ruling desired. See TEX. R. APP. P. 33.1; Martinez v. State, 867 S.W.2d 30, 35 

(Tex. Crim. App. 1993). Almost every right, constitutional and statutory, may be waived 

by the failure to object. See Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App.

1986). Absent a timely objection, complaints about a prosecutor’s inflammatory 

arguments or about his reference to a defendant’s failure to testify are waived. See 

TEX. R. APP. P. 33.1; Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004); 

Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004) (citing Dragoo v. State, 96 

S.W.3d 308, 313 (Tex. Crim. App. 2003)). Absent an objection, a defendant waives 

error unless the error is fundamental—that is, the error creates egregious harm. 

Ganther v. State, 187 S.W.3d 641, 650 (Tex. App.—Houston [14th Dist.] 2006, pet. 

ref’d). Egregious harm is such harm that a defendant has not had a fair and impartial 

trial. TEX. R. EVID. 103(d); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984). 

Floyd did not make any of her complaints on appeal in the trial court, and the 

prosecutor’s comments do not amount to fundamental error. A prosecutor’s comment 

amounts to a comment on a defendant’s failure to testify only if the prosecutor 

manifestly intends the comment to be, or the comment is of such character that a typical 

jury would naturally and necessarily take it to be a comment on the defendant’s failure 

to testify. Wead, 129 S.W.3d at 130 (citing United States v. Jefferson, 258 F.3d 405, 

414 (5th Cir. 2001)); Bustamente v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). 
5

Nothing in the record suggests the prosecutor manifestly intended to comment 

on Floyd’s failure to testify, and the typical jury would not have naturally and necessarily 

understood the prosecutor’s comment to refer to Floyd’s failure to testify. Rather, the 

record, when reviewed in context, shows that the prosecutor’s comments naturally and 

necessarily refer to Floyd’s behavior at the scene of the crime, not in the courtroom at 

the trial of this cause. Wead, 129 S.W.3d at 130. Regardless, Floyd waived this issue 

on appeal. See TEX. R. APP. P. 33.1. Floyd’s sole issue is overruled.

III. CONCLUSION

We affirm the trial court’s judgment.

______________________________

GREGORY T. PERKES

Justice

Do not publish. See TEX. R. APP. P. 47.2(b).

Delivered and filed the 

22nd day of August, 2011.