We granted the State's petition for discretionary review to determine whether the Court of Appeals erred in failing to apply "the rule of McCarron [v. State, 605 S.W.2d 589 (Tex. Crim. App. 1980 [Panel Op.]),]" to comments made by trial judges. The bulk of the majority's analysis addresses whether the Court of Appeals erred in restricting McCarron to the timing of comments, a question on which we did not grant review. See ante at ___, slip op. at 7-12. Then in one sentence with no analysis, the majority concludes that "[t]he Court of Appeals misconstrued our holding in McCarron by holding that it does not apply to judges." Id. at __, slip op. at 12.

I disagree with the majority's disposition of this case because the Court of Appeals applied the proper test.

The test for determining reversible error in the context of an improper comment before the jury is whether the language used was manifestly intended or was of such character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify. See Bird v. State, 527 S.W.2d 891, 894 (Tex. Crim. App. 1975). We examine the comment in context and in light of the entire record. Id. The Court of Appeals applied the proper test and reached the correct result.

Here, the comment was highly alluring because the comment was put in front of the jury by the judge, not the prosecutor during closing argument. The effect of this is difficult to quantify, but this was not the typical closing argument situation, where emotions are generally running high, but during the State's case-in-chief. Juries expect each attorney to represent and advocate the rights and interests of his or her client, but the judge is to be the impartial authority figure that ensures the trial proceeds in a fair and orderly manner.

In examining the nature of the comment, we note that it is a direct reference on the accused's right against self-incrimination, but also implies that any evidence that related to the accused's state of mind is not of any consequence until the defendant takes the stand. The error was compounded when the prosecutor immediately respond[ed], "Then he can put his client on the stand and have him testify." This only served to reinforce in the jury's mind that the defendant should testify about what happened.

A curative instruction could serve to negate the effect of a comment such as this, even though the comment was from the judge. However, in this case, the "cure" is almost as debilitating as the poisonous comment. The judge instructs the jury to disregard his comment on the defendant's failure to testify by stating: "The jury is instructed to disregard any comment I made regarding the issue regarding the gang relevance after we hear from the defendant, that I may have said or the prosecutor may have said. [Emphasis added]." He instructs the jury to disregard the comment about gang relevance, which was a comment made by the prosecutor. The only mention of the defendant's right not to testify is a comment that still refers to the "gang relevance" after the defendant testifies. We find that this instruction could only have the effect of further conveying to the jury that the defendant was obliged to testify in order to amount any defense to the crime with which he was charged. This instruction is not specific to the comment and does nothing to mitigate its effect.

In looking at the comment in light of the entire record, we cannot say beyond a reasonable doubt that these comments did not contribute to the conviction or punishment in this case. The witness that was with [the victim] at the scene, Arturo Chavez, was the State's main witness. His testimony is often contradictory (i.e.-at what point in time his wife arrived at the scene, where [the appellant] was standing, where [the victim] was standing). Additionally, there was testimony that [the victim] was a drug user and fairly heavy drinker. Although the doctors who testified in the case were of the opinion that [the victim] died as a result of his gunshot wounds, the State's witness, Dr. Contin, conceded that a combination of the types of drugs [the victim] had present in his system could kill someone. There was also a written report that indicated that a cocaine overdose could have cause severe brain injury. However, the jury still found [the appellant] guilty and sentenced him to a lengthy prison term.

Bustamante v. State, No. 08-97-00008-CR, slip op. at 6-7 (Tex. App.--El Paso Sept. 23, 1999) (not designated for publication) [sic passim].

The Court of Appeals considered the relevant factors including the timing of the comment, the nature of the comment, the attempt to cure, and the likely impact on the jury based on the context. The Court of Appeals did all that the law requires; I would affirm the judgment below.

Delivered: June 13, 2001.

Publish.