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Click here for the full text of this decision FACTS:Sam Griffin was released from arrest for failure to register as a sex offender on $20,000 bond, pending trial. Griffin appeared for the morning session of his trial on Oct. 6, 2003, but he did not come back after the lunchtime recess. The trial court issued a capias warrant and forfeited his bond. Griffin’s bail bondsman tried for weeks to find Griffin. When he could not, he contracted with Crime Stoppers to offer a reward for information leading to Griffin’s arrest. A tip in response to a television news program and a local newspaper led to Griffin’s arrest. Griffin was then charged with felony bail-jumping. He testified in his own defense, saying he had a car accident on the way back to the courthouse. He did not call as a witness the friend who had allegedly wrecked the car, nor did he call his attorney in the earlier proceeding to confirm his story. Griffin could not produce a citation related to the accident or any other corroborating evidence. Griffin was convicted as charged. During the argument to the jury, the state made a reference to Griffin’s failure to call his earlier attorney to testify in his behalf. Because Griffin had pleaded “not true” to two enhancement paragraphs, the state had to prove two specific prior felony convictions. The state produced penitentiary packets (“pen” packets) for both offenses, along with judgments and sentences, though the pen packet for Griffin’s burglary conviction lacked a fingerprint card. The trial court allowed the packets in anyway, over Griffin’s objection, because of additional evidence of Griffin’s name, date of birth and physical description, which included an identifying tattoo. Furthermore, Griffin admitted during the guilt/innocence phase that he had been convicted of burglary. The jury found both enhancement paragraphs true. On appeal, Griffin challenges the sufficiency of the evidence supporting the jury’s verdict on the enhancement paragraphs. Griffin also says the state improperly commented on his failure to call his prior attorney as a witness. HOLDING:Affirmed. The court rejects Griffin’s argument that the state did not offer independent evidence that Griffin was the person described in the pen packet for burglary. The court points out that the state offered Griffin’s physical description, name and date of birth, plus Griffin admitted to the conviction too. The court adds that the documents included specific cause numbers, conviction dates and specific crimes involved. “Put together, the State tied the evidence to [Griffin] and the trial court did not err in admitting this evidence and leaving it to the jury to determine if the State met its burden of proving true the enhancement paragraph.” The court agrees that although neither the pen packet nor the prior judgment and sentence are sufficient on their own to support the trial court’s finding on Griffin’s punishment, together they are, and, viewed in the light most favorable to the verdict, the evidence is sufficient. In reviewing Griffin’s argument about the state’s comment about his previous attorney not testifying, the court notes that it must decide whether the right Griffin says was violated can be waived (the state contends Griffin waived his right to raise this issue, because his objection at trial differed from the one he raises here). The court says Griffin is asking for a ruling that commenting on the use of the attorney-client privilege, not using privileged communications, is a constitutional violation, but he has cited no authority “establishing that comments on the use of the privilege, without more, amount to prejudicial use.” The court nonetheless assumes that the state’s comments were a constitutional violation solely to determine whether or not they may be raised for the first time on appeal. The court concludes that since a defendant can waive his right to remain silent, then it follows that he may also waive a complaint for other comments made by a prosecutor that may be grounded in the constitution. “We know of no case law holding that allegedly improper comments on the attorney-client privilege may not be waived. Accordingly, this situation does not represent the sort of right that is waivable only, nor an absolute systemic requirement. We hold that, like the Fifth Amendment right to remain silent, commenting upon a defendant invoking the attorney-client privilege, if a constitutional violation, is waivable.” OPINION:Fowler, J.; Fowler, Edelman and Guzman, JJ.

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