### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00516- CR

Miranda Mart inez, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 22ND J UDICIAL DI STRICT NO. CR-10 -02 87, H ONO RAB LE MARK R. LUITJ EN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Miran d a M artinez of the offe nse of intox ication manslaug hter. Punishm ent was asse s s ed at 1 5 y ear s’ imprisonment. I n a single point of err or, Martinez asser

ts that the prosec utor committed reve rsible err or in her closing argu m ent during punishment when she c ommented on Martinez’s fa ilure to testify . We will affirm the judg ment.

Martinez was char g ed with opera ting a motor vehicle while intox icated and colliding with another ve hicle by

driving in the wrong direc tion on I H-35. The alleg ed collision cause d the death of th e driver of the ot her vehicle, Rebecca Ann S tuckey

. The jury found Martinez g uilty as char g ed, and the case proce eded to punishment. During punishment, the following occur red during the closing arg ument of def ense c ounsel:
[Defense counsel]: [Y] ou’ll notice that [Martinez] has never once tried to c rea te

a ca se deny

ing r esponsibility

in this m atter.[P rosec utor]: Objection, Your Honor. Ar g uing outside the rec ord ag ain. [Defense counsel]: Well, she didn’t testify nor did we put a

ny witnesses on. [C ourt]: Counsel— [P rosec utor]: He’ s opening the door. [C ourt]: You just opened the door wide. Go a

head. [Defense counsel]: There ’s no denial of responsibility by our side in this case and

for what happene d and why , none.

L ater , during the State’s closing arg ument, the prosec utor arg ued the f ollowing:
And, y ou know, the defe nse attorney talked about, y ou know, she didn’t fig ht this. She didn’t fig ht it. Okay ? She didn’t fig ht it, but did y ou hear her g et up here and take responsibility for what she did? No. There ’s been nothing from her, nothing. Normally I can’ t say any thing about that, but when he commented on his client not testify ing, then I can talk about that. And she didn’t take responsibility for her actions, and she still doesn’t. She still wants to make this a ll a bout he r and how she deser ves this and she deser ves that.

Def ense c ounsel made no obje ction to this arg ument.

The jury assessed punishment as noted above, and the dist ri ct co u rt sentenc ed Martinez in acc ordanc e with the jury ’s ver dict. This appea l followed.

Martinez’s sole point of err or conce rns the above arg ument by the p ro s ec u tor. Acc ording to Martinez, the arg ument was a “dire ct comment on the defe ndant’s failure to testify at the punishment phase of the case ” and constitutes reve rsible err or. The State responds that Martinez failed to pr eser

ve err or. Martinez conce des that she did not object to the arg ument but a sserts that

2beca

use the comment violated a mandatory statute, specific ally article 38.08 of the code of criminal
proce dure, “ fundame ntal err or occ ur[ed] and no objection [was] nece ssary to preser ve er ror.” 1
Prosecutoria l comment that ref ers to an acc used’s failu re t o testify violates the

acc used’s F ifth Amendment rig ht ag ainst compelled self -incrimination. See G riffi n v. California , 380 U.S. 609, 613 (1965); Canales v. State , 98 S.W .3d 690, 695 (Tex

. C ri m . Ap p . 2003);
Bustamante v. State , 48 S.W .3d 761, 764 (Tex. Crim. App. 2001). And, as Martinez observ es , it would also violate a mandatory statute. S ee T ex. Code Crim. Proc. Ann. art. 38.08 (West 2005) (“A ny defe ndant in a criminal action shall be permitted to te stify in his own behalf there in, but the failure of any defe ndant to so testify shall not be taken as a circ umstance ag ainst him, nor shall the

same be alluded to or commented on by counsel in the c ause.” ). To constitute er ror, the comment

I n making this arg ument, Martinez relies on Campbell v. St a t e , 9 0 0 S .W.2d 763 1 (Tex. App.—Waco 1995, no pet.). I n Campbell , the Waco Court of Appea ls noted the g ener al rule that “the failure to object to impermissible jury arg ument waives an y er ro r, ” but stated that “an exception to the g ener al rule exis ts wher e the arg ument is manifestly impro per, violates some mandatory statute, or injects some new fac t harmful to the defe ndant’s case .” Id

. at 767 (citing W illis v. Stat e , 785 S.W .2d 378, 384 (Tex. Crim. App. 1989)). Concluding that “a di re ct co mment on a defe ndant’s failure to testify ” violates a mandatory s t at u t e, namely article 38.08 of the code of criminal proce dure, the court held that “funda mental err or nece ssarily results” from such a comment and that, there fore , err or prese rvation was n o t nece ssary . See id

. at 767-68; but see id

. at 774-77 (Thomas, C.J ., concur

ring ) (conc urring in judgme nt based on the n-existi ng prec edent but expressing doubts as to whether improper jury arg ument rose to level of fundame ntal err or). The case on which the Campbell court relied for its decision, W illis v. State , is no longe r g ood law. See Estrada v. State , 313 S.W .3d 274, 303 (Tex. Crim. App. 2010) (“We overr uled the exception discussed in W illis more than ten y ear s ag o.”) (citing Cockrell v. State , 933 S.W .2d 73, 89 (Tex. Crim. App. 1996) (holding that “a defe ndant’s failure to object to a jury arg ument

. . . forf eits his rig ht to compl ain about t he arg ument on appea l” and expressly o v er ruling “any prior case s to the contra ry ”))

. Be cause the court of criminal appea ls has overr uled the case on which the Campbell court relied, we decline to follow it. See State ex rel. W ilson v. Briggs , 351 S

. W

. 2 d 8 92, 894 (Tex. Crim. App. 1961) (“The Texas Court of Criminal Ap p eals is the court of last resor t in this state in criminal matters. This being so, no other court of this state has authority to overr ule or circ umvent its decisions, or disobey its mandates.”)

. 3must clea

rly ref er to the acc used’s failure to te stify , and it is not suf ficient that the comment might be construed as an implied or indirect allusion. Bustamante , 48 S.W .3d at 765. The test is whether the prosec utor manifestly intended his lang uag e to be such a comment, or whether the lang uag e was of such a charac t er that the jury would nece ssarily and natura lly take it as a comment on the defe ndant’s fa ilure to testify

. Canales , 98 S.W .3d at 695; Bustamante , 48 S.W .3d at 765.

Howeve r, it is well settled that absent a timely , specific objection to such a comment, nothing is prese rved for revie w. See, e.g. , W ead v. State , 129 S.W .3d 126, 130 (Tex. Crim. App. 2004); Cockrell v. State , 933 S.W .2d 73, 89 (Tex. Crim. App. 1996); Ma r t i n v. State , 630 S.W .2d 952, 956 (T ex. Crim. App. 1982); Valore v. State , 545 S.W .2d 477, 481 (Tex. Crim. App. 1977); Beal v. State , 520 S.W .2d 907, 912 (Tex. Crim. App. 1975); Craig v. State , 480 S.W .2d 680, 682 (Tex. Crim. App. 1972); Espinoza v. State , 843 S.W .2d 729, 730-31 (Tex. App.—Austin 1992, pet. re f’d) ; see also Y oung v. State , 137 S.W .3d 65, 69-70 (Tex

. Crim. App. 2004) (holding that objection is require d to prese rve err or to any fore seea ble occur renc e, and reque st for instruction
to disreg ard or motion for mistrial is require d t o p re s er v e err or to unfore seea ble occur renc e).
Rece ntly , the court of criminal appea ls has re i t er at ed the need for err or prese rvation in case s of improper jury

arg ument. See E

strada v. State , 313 S.W .3d 274, 303 (Tex. Crim. App. 2010).
I n this ca s e, M ar t inez did not object to the comment, reque st an instruction to disreg ard, or move for a m i s t ri al

. Acc ording ly , no err or has been prese rved for our revie w. See Tex. R. App. P . 33.1. We overrule Martinez’s sole point of er ror. 2

Moreove r, this may be a case in which defe nse counsel, as the dist ri ct court and the 2 prosec utor observe d, “opene d the door” to the prosec utor’s comment by arg uing that Martinez did not “deny responsibility ” in the case and attributing positive signific ance to Martinez not testify ing. 4We affir m the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson
Affir med Filed: Aug ust 31, 2011 Do Not Publish

Simi lar arg uments by

defe ndants in other ca ses have been held to “invite” prosecutoria l comment on the defe ndant’s failure t o testify

. See, e.g. , Long v. State , 823 S.W .2d 259, 269 (Tex. Crim. App. 1991); Nethery v. State , 692 S. W

. 2d 686, 703 (Tex. Crim. App. 1985); Coleman v. State , 6 4 3 S.W .2d 947, 952 (Tex. Crim. App. 1982); Linder v. State , 828 S.W .2d 290, 3 0 0 -0 1 (Tex. App.—Houston [1st Dist.] 1992, pet. ref ’d). Thus, even if err or had been prese rved, we would be unable to co n cl u d e on this rec ord that the district court abused its discretion in allowing the ar g ument.

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