Beathard v. State
In Beathard v. State, 767 S.W.2d 423 (Tex. Crim. App. 1989), defendant testified in the guilt phase that he was not involved in the victim's murder. He also related "his version of the facts, his current and past employment, his educational attainments, his family background, and his lack of any criminal record." Beathard, 767 S.W.2d at 433 n.17.
The jury rejected defendant's claim of uninvolvement, finding him guilty of first-degree murder.
In the Beathard penalty phase the state presented no additional evidence. Defendant presented six additional witnesses, but did not testify again himself. Defendant asked for a no-adverse-inference instruction, but the court refused to give one. Defendant was found guilty.
On appeal, the Texas Court of Criminal Appeals found the refusal to give the instruction error, but held it was harmless beyond a reasonable doubt:
The right to a "no-adverse-inference" instruction is rooted in a jury's natural tendency to assume that the decision not to testify stems from a defendant having something to hide. See generally Carter v. Kentucky, supra. In the instant case, this was not a concern. By testifying during guilt/innocence, the jury heard numerous things from the appellant. In addition, the state presented no evidence at the punishment phase. Thus, appellant was not placed in a position where the jury would expect him to counter factual assertions made by the state. Id. at 432.
In a footnote, Beathard noted, "aside from a plea for mercy, which was made by appellant's mother, we can think of nothing that appellant could have said during the punishment phase that he had not already said." Id. at 432 n.17.
In fact, if the jury was to draw any improper inference from a failure to present a case, it would have been against the state. Appellant did, however, call six witnesses. Limited to the unusual factual setting of this case, we find that the trial judge's error in failing to give a "no-adverse-inference" instruction was, beyond a reasonable doubt, harmless. Id. at 432-33.