Although I agree appellant's petition for discretionary review should be refused, I believe the Court of Appeals' reliance on Thomas v. State, 638 S.W.2d 481 (Tex.Cr.App. 1982), is misplaced. The Court of Appeals is correct in concluding a comment upon appellant's lack of remorse is not an impermissible comment upon appellant's failure to testify when there is evidence in the record supporting the comment. However, this conclusion, while correct, is more properly drawn from precedents other thanThomas, supra. I therefore concur in the refusal of appellant's petition for discretionary review with the following comments.

In Thomas, the prosecutor argued neither defendant's wife nor sister testified defendant was remorseful. We held the argument improper because it faulted the defendant for failing to introduce inadmissible, self-serving testimony.¹Thomas, 638 S.W.2d at 484. Nevertheless, we affirmed because the prosecutor's comments "from the standpoint of a lay jury [did] not constitute a necessary implication that appellant [failed] to testify in his own behalf." Id. at 485.

The Court of Appeals compared the instant case toThomas because "[i]n both cases, the prosecutor commented on the testimony of third persons about the defendant's remorse." Moore, 822 S.W.2d at 358. The Court held the comment proper because the prosecutor did not comment specifically on appellant's failure to testify at trial and because "there was evidence from two other witnesses that supported the conclusion the appellant was not remorseful."Id. The Court of Appeals found the jury could have understood the argument to refer to the testimony of the witnesses. Id. at 359.

*Page 352 Argument will constitute a comment upon the defendant's failure to testify if "the language used [is] manifestly intended or [is] of such character that the jury would naturally and necessarily take it to be a comment on the accused's failure to testify." Caldwell v. State, 818 S.W.2d 790, 800 (Tex.Cr.App. 1991). See also, e.g.,Dickinson v. State, 685 S.W.2d 320, 323 (Tex.Cr.App. 1984); Banks v. State, 643 S.W.2d 129, 134 (Tex.Cr.App. 1982). The facts and circumstances of each case must be analyzed to determine whether the language is of such a character as to direct the jury to the defendant's failure to testify. Montoya, 744 S.W.2d at 35;Dickinson, 685 S.W.2d at 323.

Moreover, the argument is improper if it directs the jury's attention to an absence of testimony only the defendant could supply. Swallow v. State, 829 S.W.2d 223, 225 (Tex.Cr.App. 1992); Angel v. State, 627 S.W.2d 424, 426 (Tex.Cr.App. 1982); Myers v. State, 573 S.W.2d 19, 21 (Tex.Cr.App. 1978). When there is no testimony suggesting the defendant's lack of remorse, a comment upon the lack of remorse would naturally and necessarily be one upon the defendant's failure to testify because only a defendant can testify as to his own remorse. Swallow, 829 S.W.2d at 225; Dickinson, 685 S.W.2d at 324; Thomas, 638 S.W.2d at 483-484.

However, when there is evidence in the record indicating a lack of remorse, a comment upon the defendant's lack of remorse does not naturally and necessarily lead the jury to understand it to be a comment upon the defendant's failure to testify.Caldwell, 818 S.W.2d at 800-801; Davis v.State, 782 S.W.2d 211, 222-223 (Tex.Cr.App. 1989);Hawkins v. State, 660 S.W.2d 65, 79 (Tex.Cr.App. 1983). Moreover, the comment need not be specifically connected to the evidence indicating lack of remorse so long as the jury could reasonably construe the comment to refer to such evidence. See, Caldwell, 818 S.W.2d at 800-801.

Although witnesses may not testify as to a defendant's feelings of remorse, Swallow, 829 S.W.2d at 225;Dickinson, 685 S.W.2d at 324; Thomas, 638 S.W.2d at 483-484, this evidence may come from other sources. For instance, witnesses may testify as to statements and conduct by the defendant that indicate of a lack of remorse,see, Caldwell, 818 S.W.2d at 800; Davis, 782 S.W.2d at 222-223, or a defendant's courtroom demeanor may provide probative evidence of the defendant's remorse.See, Hawkins, 660 S.W.2d at 79 (comment referring to jury's observations of defendant not improper where defendant fell asleep numerous times during trial); see also, Turnerv. State, 504 S.W.2d 843, 846 (Tex.Cr.App. 1974) (comment on defendant's lack of emotion during reading of the verdict held not improper). But cf., Dickinson, 685 S.W.2d at 323 (holding that comment upon a defendant's courtroom demeanor is proper only when the record reflects misbehavior or unacceptable conduct before the jury).

In Caldwell, the prosecutor argued:

You have had a chance to sit here this whole trial, listen to the evidence, [and] look at the demeanor of the witnesses on the stand. And you have had chance [sic] to look at everything. See any remorse in this courtroom other than comes from the —

In Davis, testimony was received concerning the defendant's pre-trial statements *Page 353 and conduct since arrest, both of which indicated a lack of remorse. Davis, 782 S.W.2d at 222. The prosecutor argued: "He showed no remorse, and he hasn'tshowed any remorse yet." Id. We found no error in the prosecutor's statement because the record contained evidence supporting the argument, and therefore, the argument was a proper summation of the evidence. Id. 782 S.W.2d at 223.

Who is somebody who is capable of being rehabilitated? Ask yourselves, somebody who is capable and willing to be rehabilitated should start with some sort of remorse for what they have done, and ask yourself if James Clarence Moore has at one time shown any shred of remorse for what he did to [complainant].

Defense Counsel: Object to that on commenting on the defendant's failure to testify.

The Court: Overruled.

Prosecutor: What I'm referring to is the fact that when he was brought back to the scene of the robbery he laughed at her, cursed at her, tried to intimidate her. Is that somebody who is capable of even wanting to be rehabilitated?

With these comments, I concur in the result.

Review Refused.