Prosecutor's Comment on Defendant's Failure to Testify at the Punishment Stage

A comment by the prosecutor on a defendant's failure to testify at the punishment stage of trial offends the state and federal constitution as well as state statutory law. See: U.S. CONST. amend. V; TEX. CONST. art. 1 10; TEX. CODE CRIM. PROC. art. 38.08 (Vernon 1997); Pena v. State, 832 S.W.2d 697, 700 (Tex. App.--Corpus Christi 1992, pet. ref'd); Nickens v. State, 604 S.W.2d 101, 104 (Tex. Crim. App. 1980). To violate appellant's rights, the comment, when viewed from the jury's perspective, "must be manifestly intended to be of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify." Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App. 1999) (quoting Banks v. State, 643 S.W.2d 129, 134-35 (Tex. Crim. App. 1982)). An indirect or implied reference to an accused's failure to testify does not violate a defendant's right to remain silent. See Fuentes, 991 S.W.2d at 275. "Calling attention to the absence of evidence which only the defendant could produce will result in reversal only if the remark can only be construed to refer to appellant's failure to testify and not the defense's failure to produce evidence." Id.