The only possible error in this case was the denial of the motion for mistrial, but the court of appeals analyzed the issue backward. Rather than considering the trial court's failure to grant a mistrial and determining whether doing so was an abuse of discretion, the court found error in that the judge's instruction did not cure the prejudicial effect of the comment, and then analyzed this to determine whether it was harmful. The court determined that because it may have contributed to the punishment assessed, the comment was harmful. The majority properly determines that because the trial court did not abuse its discretion in failing to grant the mistrial, there was no error and thus no harm.

I write separately to emphasize the distinction between this type of comment occurring during the guilt phase of trial and this type of comment occurring during the punishment phase of trial. The majority points out the difference in analysis of the third factor, but I feel that the other factors are analyzed differently as well. The magnitude of the comment on the failure to testify is not the same if it may have affected only the punishment as it would be if it may have affected the determination of guilt. Thus, the issue raised in this case may have been different if the comment on the failure to testify was during the guilt phase. In that situation, the judge's admonition to the jury to follow the instructions in the charge may not have been sufficient.

With these comments, I join the opinion of the majority.

Meyers, J.

Filed: May 2, 2007

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