Mentioning to the Jury That Defendant Did Not Testify In Texas Law
Article 38.08 of the Code of Criminal Procedure prohibits the prosecutor from commenting on the defendant's failure to testify. See TEX. CODE CRIM. PROC. ANN. art. 38.08 (Vernon 1989).
To determine whether a prosecutor's comments violate article 38.08, the court of appeals must view the language the prosecutor used from the standpoint of the jury to determine whether it clearly implicates the defendant's failure to testify. See Dickinson v. State, 685 S.W.2d 320, 323 (Tex. Crim. App. 1984).
"The test employed is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the accused's failure to testify." Id.