Marable v. State

I dissent. I do not believe the prosecutor’s comments were an improper allusion to Marable’s failure to testify, but that they were a reference to a defense actually presented by witnesses for Marable.

Comments on the accused’s failure to testify violate the privileges against self-incrimination contained in the United States and Texas Constitutions, as well as the specific prohibition of Tex.Code Crim.Proc. Ann. art. 38.08 (Vernon 1979). Bird v. State, 527 S.W.2d 891 (Tex.Crim.App.1975). For a comment to constitute such a violation, however, the implication that the language referred to the…