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Click here for the full text of this decision FACTS:During the state’s closing argument at the guilt/innocence phase of the trial, the prosecutor said: “. . . Now, we all heard very credible testimony from an independent witness who sat right here on the stand and told you that that man, the defendant (indicating), sitting right here now looking like he really doesn’t care one way or another what happens here today. . .” The defendant objected, asserting this was an improper argument. The court sustained the objection, directing the jury to disregard “the prosecutor’s last comment about the defendant’s appearance.” The jury found the appellant guilty. The court of appeals reversed. HOLDING:Reversed and remanded. The court of appeals erred in even considering the appellant’s argument that the prosecutor’s comment amounted to a comment on appellant’s failure to testify, since appellant made no such argument in the trial court. In the trial court, the appellant complained only that the prosecutor’s “attack” on him was “improper argument.” The appellant’s complaint, in context, appeared to be that the prosecutor was commenting improperly on appellant’s courtroom appearance or demeanor. The court of appeals also erred in holding that the prosecutor’s comment amounted to a comment on the appellant’s failure to testify. It is well settled that a prosecutor’s comment amounts to a comment on a defendant’s failure to testify only if the prosecutor manifestly intends the comment to be, or the comment is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant’s failure to testify. United States v. Jefferson, 258 F.3d 405 (5th Cir. 2001); Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001). It is not sufficient that the comment might be construed as an implied or indirect allusion to the defendant’s failure to testify. Nothing in the record suggests that the prosecutor manifestly intended to comment on the appellant’s failure to testify, and a typical jury would certainly not have naturally and necessarily understood the prosecutor’s comment, even with his accompanying gesture, to refer to appellant’s failure to testify. The prosecutor’s comment, taken literally, was to the effect that appellant appeared unconcerned about the outcome of the trial. The record shows no abuse of discretion on the part of the trial court in denying appellant’s motion for mistrial. On this record, a reasonable trial judge could have concluded that an instruction to disregard would effectively remove any possible prejudice caused by the prosecutor’s comment. OPINION:Holcomb, J., delivered the court’s opinion.

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