Example of a Comment on Defendant's Failure to Testify
In Madden v. State, 799 S.W.2d 683, 699 (Tex. Crim. App. 1990), the prosecutor commented on the defendant's failure to testify by stating, "There's only one person here that knows why, and there's only one person here that knows the answer to all of these questions." 799 S.W.2d at 699.
The Court of Criminal Appeals held that, viewed from the jury's standpoint, the argument was a direct comment on Madden's failure to testify and the trial court erred in overruling Madden's objection. 799 S.W.2d at 700.
Nevertheless, the court did a harmless error analysis, and held that, given the arguments and evidence, the statement did not contribute to the jury verdict. 799 S.W.2d at 700-701.
In conducting a harmless error analysis, we must reverse the conviction unless we determine beyond a reasonable doubt that the error had no impact on the jury's verdict. TEX. R. APP. P. 44.2(a); Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989).
We examine the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, and its probable collateral implications. Id.
If overwhelming evidence dissipates the error's effect upon the jury's function in determining the facts so that it did not contribute to the verdict, then the error is harmless. Id.