Michael Dennis Swallow, Appellant v. the State of Texas, Appellee

Summary

The Texas Court of Criminal Appeals reversed the Court of Appeals' judgment and remanded for a determination of whether the prosecutor’s comments on the appellant’s failure to testify constituted reversible Fifth Amendment error, holding that the remarks were an impermissible comment and that the error was not automatically harmless. The Court also held that the trial court’s curative instruction to disregard a question about a prior DWI arrest cured any error on that issue. Justice BENAVIDES dissented, arguing that the prosecutor’s remarks do not amount to a comment on the failure to testify and that the majority improperly overruled Jones.