APPELLANT

APPELLEE

PER CURIAM

A jury found appellant guilty of intentionally or knowingly causing serious bodily injury to an elderly individual. Tex. Penal Code Ann. § 22.04 (1989), since amended. The jury assessed punishment at imprisonment for ninety-nine years.

On Sunday afternoon, April 16, 1989, Charlie Castillo and Elmer Miller butchered a hog in Castillo's back yard in Burnet. Several other men were present, drinking beer, including appellant and sixty-eight-year-old Enselmo Robles. At about 3:00, appellant seized one of Castillo's knifes and stabbed Robles.

Appellant did not testify. A police officer who investigated the incident, however, testified that appellant told him that Robles "came at him with a knife." Another witness, Dennis Hahn, testified that he saw Robles bring his hand out of his pocket just before he was stabbed, and heard appellant tell Robles "to keep it in his pocket." Hahn said he thought Robles had a knife, but he did not actually see it. No other witness saw Robles with a knife, and Robles denied having one. The charge included an instruction on self-defense.

In his only point of error, appellant contends that a mistrial should have been declared when the prosecutor commented on his failure to testify. The comment came during the State's closing argument at the guilt stage. Dismissing the suggestion that Robles attacked appellant with a knife, the prosecutor said: "Nobody saw a pocket knife. And no statement from Roger Bernal of [or?] any evidence that you heard or statements that he did make that he was cut." Appellant's objection was sustained and the jury was instructed to disregard the remark, but appellant's motion for mistrial was overruled.

For a statement to constitute a comment on the defendant's failure to testify, the statement must be either manifestly intended or of such a character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify. Griffin v. State, 554 S.W.2d 688 (Tex. Crim. App. 1977). In this cause, the jury heard testimony describing statements made by appellant at the time of or shortly after the incident. We believe it likely that the jury understood the prosecutor's remark to be a reference to this testimony rather than a reference to appellant's failure to testify. This, together with the district court's admonishment to the jury to disregard the prosecutor's remark, leads us to conclude that reversible error is not presented.

The judgment of conviction is affirmed.

[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]

Affirmed

Filed: March 11, 1992

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