GARY EUGENE SIMS, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed May 27, 1997
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-96-00846-CR
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GARY EUGENE SIMS, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the County Court of Law No. 3
Collin County, Texas
Trial Court Cause No. 3-81265-93
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O P I N I O N
Before Justices Kinkeade, Whittington, and Wright
Opinion By Justice Kinkeade
        In two points of error, Gary Eugene Sims argues this Court should reverse his conviction for driving while intoxicated and remand this case for a new trial because the prosecutor commented on his failure to testify and the trial court included factual matters in response to a jury question during deliberations. For the reasons set forth below, we affirm the trial court's judgment.
 
 
FACTUAL AND PROCEDURAL BACKGROUND
        Around 2:00 a.m. on March 11, 1993, Mark Sanderson, a police officer with the Collin County sheriff's office saw Gary Eugene Sims swerving and weaving his pickup truck across lanes of traffic on U.S. Highway 75 near Allen, Texas. Sanderson saw other vehicles take evasive action to avoid Sims's truck. He then stopped Sims. Almost three years later, Sanderson testified at trial that at the scene on March 11, 1993, he smelled alcohol on Sims's breath, that Sims swayed, and that Sims refused to perform any sobriety tests. Two other officers, who had arrived at the scene to back up Sanderson, also testified. The two other officers' testimony was not entirely consistent with Sanderson's or each other's. Neither of the other officers had seen Sims driving, and neither testified that they had seen Sims swaying. One testified that she had smelled alcohol on Sims, the other could not recall the smell of alcohol. One officer testified that Sims had refused to take sobriety tests, and the other testified that she had not seen Sims take any sobriety tests.
        The jury found Sims guilty of driving while intoxicated as charged in the information. Evidence at the punishment phase of the trial showed that Sims had two previous convictions for driving while intoxicated as well as numerous other convictions for driving without a license, driving with a suspended license, driving without insurance, and speeding.
COMMENT ON FAILURE TO TESTIFY
        In his first point of error, Sims argues the trial court erred in overruling his objection to a comment on his failure to testify. During closing argument at the guilt-innocence phase of the trial, the prosecutor discussed the somewhat conflicting testimony of the three officers and said that nothing in the evidence contradicted that Sims had been swerving, that other vehicles had taken evasive actions, that Sims had smelled of alcohol on his breath, that he had swayed, and that he had refused to take sobriety tests. Sims contends this statement was a comment on his failure to testify.
        We review a complaint alleging an improper comment on a defendant's failure to testify by looking at the language of the comment from the standpoint of the jury. Goff v. State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996), cert. denied, 117 S. Ct. 1438 (1997). It is not enough that the jury might have inferred the prosecutor alluded to a failure to testify; the language used must make the inference necessary. Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). Furthermore, where the statement does not refer to evidence which can come only from the defendant, it is not a direct comment on the failure to testify. Goff, 931 S.W.2d at 548.
        Sims argues the prosecutor's statement was a comment on his failure to testify because it referred to evidence to which only he could have testified, that is, how he and other drivers had been driving, the smell of alcohol on his breath, his sway, and his refusal to take sobriety tests. Unlike other matters, such as a defendant's remorse, however, the matters to which the prosecutor referred could be controverted by people other than Sims alone. Indeed, the testimony of the officers related to these matters. Based on our review of the evidence, we conclude the prosecutor's argument was a proper summation of the evidence and was not a comment on Sims's failure to testify. See id. (summation of the evidence is a proper area of jury argument). Because the trial court did not abuse its discretion in overruling Sims's objection to the prosecutor's argument, we overrule Sims's first point of error.
JURY CHARGE
        In his second point of error, Sims argues the trial court erred in including factual matters in a supplemental jury charge. During deliberations on punishment, the jury asked the trial court whether Sims's time in jail would be reduced somehow if he were sentenced to time in jail. In its response, the trial court explained how a sheriff could award credit toward a misdemeanor sentence for good behavior, but added that the jury was not to consider whether any sentence they assessed would be reduced by such a credit. Sims did not object to this supplemental charge.
        Because Sims contends the supplemental jury charge amounted to fundamental error requiring reversal, he may raise this issue for the first time on appeal. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). We will reverse on this basis only if the error was so egregious and created such harm that Sims did not have a fair and impartial trial. Id. We assess the degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Id.
        Sims contends the supplemental charge was so egregious that he did not have a fair and impartial trial for two reasons: (1) because the instruction was not authorized under the code of criminal procedure; and (2) because the instruction was confusing, in that it stated that good-time credit could be awarded but instructed the jury not to consider such credit. Sims contends that the jury's assessment of punishment at one year in the county jail and a $2000 fine that was probated for two years is evidence of the egregious nature of the harm the supplemental charge caused and amounted to fundamental error requiring reversal. We have reviewed the entire record, including Sims's numerous prior convictions, in considering Sims's argument. Even assuming, without deciding, that the trial court erred in its supplemental charge, we cannot agree with Sims that the jury's assessed punishment is evidence of harm from that error or that any such error amounted to fundamental error which was so egregious as to have deprived Sims of a fair and impartial trial. Accordingly, we overrule Sims's second point of error.
        We affirm the trial court's judgment.
 
 
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
960846F.U05
 
 
File Date[05-23-97]
File Name[960846F]