journal of the texas criminal defense lawyers association

". . . There is one thing qore I want to say here. You know,there has been a lot of testimqny about who waq there andwho saw what. And there is one person we haven't heard fromin this case, who could testify a lot about what was goingon, and that's Miss Turner here. Tyler. Excuse me.Defense Counsel: Your Honor at this time I want to make anobjection. When Mr. Malone (prosecutor) was making hisoutbursts on the one person that hasnbt testified, he leeredand directly looked at the defendant and nodded his head overthere. "At the Motion For New Trial hearing it wae shown that the DA carefullypositioned himself and pointed directly at the defendant during most ofthe complained of remarks, and then after a very "pregnant pause" concludedhis statement by making reference to one Miss "Turner" or "Tylerm.The defense testimony established the DA's physical conduct. The courtreporter verified the pause of over a second which occurred before theprosecutor specified to whom he was referring when he said that there wasonly one person the jury had not heard from, although the pause obviouslywas not reflected in the record. The court by footnote then stated thatthe state on appeal contended that this argument was meant to explain theabsence of a key witness for the state, Jean Tyler. " Such contention isbeyond the pale of reasonability and common sense. No reasonably competentprosecutor would, during jury summation, stand in proximity to appellantand his attorneys and call the jury's attention to the absence and failureto testify of one of his (the prosecutor's) eye witnesses." The courtconcluded that the argument in conjunction with the prosecutor's physicalactions and delivery was manifestly intended to be and was of such acharacter that the jury would naturally or necessarily take it as a commenton the failure of the appellant to testify, in clear violation of Art.38.08 CCP. w s , 525 S.W.2d 177; -- Bird, 521 S.W.2d 89 (it should alsobe noted, however, that the TC overruled D's objections at trial).RICHARD KING, No. 67,652, Murder, Death, Rev'd, Judge Teague, En Banc,6/8/83.D'S ORAL CONFESSION TO 1974 ARSON CASE DURING PUNISHMENT PHASE NOT ADMIS-SIBLE UNDER ART. 38.22.CCP: Indictment and evidence showed D killed X inX's residence while X was watching a football game on TV. During punishmentphase, police officer testified as to D's bad reputation in Floridaand that in 1974 D confessed to this officer that he had burned his automobilefor the insurance. The Florida judgment of conviction was notadmitted into evidence as D showed that at the time of the conviction hewas without counsel. 5ee Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258,19 L.Ed.2d 319 (1967). D's oral confession was the result of custodialinterrogation and the stbte does not argue otherwise. D's trial occurredin March, 1980, Although the oral confession was made in 1974, theadmissibility of the oral confession is governed by the law in effect atthe time of trial. Wilson, 473 S.W.2d 532. Although a TC in a capitalmurder case has wide discretion in admitting or excluding evidence at thepunishment stage, nevertheless exclusionary rules of evidence still governthe admissibility of evidence. Rumbaugh, 589 S.W.2d 414. The stateargued that under Art. 38.22 Sec. 5 the statement was admissible, by virtuof Art. 37.071, Sec. a CCP. The court held, however, that Sec. 5 had noSD-28 VOICEfor the Defense/August 1983