Texas Stamp


PD-0427-22 10/26/2022

“Is it reversible error to allow the State to argue that maintaining his innocence is evidence of a defendant’s guilt?”

Phillips was arrested for DWI-3rd after his car struck a parked vehicle. At trial, the vehicle’s owner testified she and her family saw Phillips try to drive away from the scene and then move into the passenger seat. She said as much in her 911 call. Phillips’ friend Harrison was in the car with him that night. In his 911 call, he also referenced their moving Phillips to the passenger seat.

In contrast, Phillips and Harrison both testified at trial that Harrison had been driving. On rebuttal, the State played police footage showing Harrison telling officers that he was the passenger and Phillips was the driver. During closing argument, the State urged the jury not to think the case was harder to resolve than it was, explaining “[T]here’s no catch. You’re not missing anything…We’re only here because this defendant has a Constitutional right to have a trial no matter what, and because he’s refusing to take responsibility for the offense.” The trial court sustained Phillips’ objection to improper argument, instructed the jury to disregard, and clarified for the prosecutor that the improper part was the reference to Phillips “refusing.” The trial court reiterated that the defendant has a right to have a jury trial. Thereafter, the trial court repeatedly overruled the defense objections to arguments in a similar vein: (1) “He doesn’t have to take responsibility. But clearly, he’s not taking responsibility. That’s why we’re here,” (2) “When a defendant doesn’t want to take responsibility for an offense, it’s up to the jury to make him do it,” and (3) “Don’t let this defendant’s lack of wanting to be held accountable let you leave…common sense at the door.” Phillips was convicted.

On appeal, he argued it violated his right to a fair trial that the State was allowed to hold his insistence on having a trial against him. The court of appeals acknowledged that a prosecutor cannot ask the jury to penalize a defendant for exercising a right but ultimately held that the arguments made here did not rise to the level of an improper comment. It observed that the State was entitled to respond to Phillips’ defense that centered on shifting blame to someone else.

Phillips argues that urging the jury to “hold him accountable” because of his refusal to take responsibility for driving while intoxicated violates his right to plead not guilty and insist on a trial. He sees the trial court’s change of position as inexplicable. By analogy, Phillips points to limitations on the prosecutor’s ability to respond to the evidence and argument when that response involves commenting on a defendant’s failure to testify. He argues that the prosecutor should have been similarly limited here. In particular, he asserts that the argument that it is up to jurors to make Phillips take responsibility is “firmly on the wrong side of the line.” He contends the State centered its argument on punishing him for maintaining his innocence and having the audacity to plead not guilty.      

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