The Texas 10th Court of Appeals in Waco on Wednesday reversed the 2006 murder conviction of Trent Archie and remanded the case to the 12th District Court of Walker County for a new trial.

Archie was found guilty on Nov. 2, 2006, of the Oct. 9, 2004, shotgun murder of Anthony Williams and sentenced to 40 years in prison and ordered to pay a $10,000 fine.

He was sentenced by retired State District Judge Bill McAdams.

The trial started Oct. 12, 2006.

Archie’s attorneys Bryan Cantrell and Lanny Ray appealed the conviction, challenging the denial of motion for a mistrial, the admission of testimony from a jailhouse informant and the legal and factual sufficiency of the evidence.

Based on those challenges, the appeals court reversed the conviction and remanded the case back to the 12th District Court, which is now presided over by State District Judge Don Kraemer.

Appeals Court Justice Felipe Reyna issued the following opinion Wednesday:

“The court has determined that there was error in the judgment of the trial court. Therefore, it is ordered, adjudged and decreed that the judgment be, and is hereby reversed, and this cause is remanded to the 12th District Court of Walker County for further proceedings. It is further ordered that this decision be certified for observance.”

Ray, who handled Archie’s appeals case, said, “We are pleased, of course. I have already spoken to Mr. Archie’s mother. She is elated to say the least and I am sure Mr. Archie will be.

“The court followed the law. You are not allowed to emphasize that the defendant hadn’t testified. As I briefed and argued short of walking over there and saying he didn’t testify, I can’t think of a stronger way to emphasize that than asking him questions when he is sitting there. The court of appeals agreed with me.”

Ray said Archie did not testify during the trial.

“It’s rare to have a defendant in any trial testify,” he said. “You have a Fifth Amendment right not to testify. If the state district attorney makes a reference that you didn’t testify, it should be a mistrial. The court should declare a mistrial and then have to decide if you should try it again.

“If the court doesn’t, then you have to go up on appeal and the actual reversal was for the trial court abusing its discretion and not granting a mistrial because the comment was improper.”

In the opinion issued by Justice Reyna for Chief Justice Tom Gray and Justice Rex Davis, “in issue one, Archie contends that the trial court abused its discretion by denying his motion for mistrial after the district attorney commented on his failure to testify.

“During closing arguments at the guilt/innocence phase of trial, the district attorney reminded the jury about a note in which Archie stated that he heard Williams’s girlfriend scream on the night of the offense.

“District attorney: But the only person who heard her scream, the only person who said she screamed was Trent Archie ... Do you still hear it Trent? Do you still hear her screaming? How do you know she screamed?

“Defense counsel: Your Honor, I object. I have to move for a mistrial.

“District attorney: Because you were there that night.

“Trial court: Approach the bench.

“Defense counsel: Judge, I move for a mistrial. It’s an improper jury argument.

“Trial court: Sustained.

“Defense counsel: I’m going to ask that you — in front of the jury, instruct Mr. (David) Weeks to not ever — to refrain from ever —

“Trial court: You can’t ask him questions.

“District attorney: I didn’t. I’m making argument.

“Trial court: You can’t do that.

“District attorney: Judge, I’ve done it before.

“The trial court sustained the objection and ordered the jury to disregard the argument, but denied Archie’s motion for mistrial. The trial court further instructed the district attorney not to engage in the argument again.

“At a hearing on Archie’s motion for new trial, defense counsel testified that, when making the complained of argument, the prosecutor turned towards the defense table, pointed, stepped towards Archie, and raised his voice. The district attorney has never challenged the accuracy of this testimony or the description of the events that occurred at trial.

“A comment on an accused’s failure to testify violates the accused’s state and federal constitutional privileges against self-incrimination.

“A comment on a defendant’s failure to testify arises where “the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify.

“The state argues that the prosecutor’s argument was merely a rhetorical question intended to respond to Archie’s attempts to distance himself from the offense and discredit Willis (Dixie Dean Jr., Archie’s co-defendant). We disagree.

“Even a rhetorical question can become a comment on a failure to testify when coupled with the lack of an explanation.

“We conclude that the district attorney’s argument in this case, coupled with his physical actions, was of ‘such a character that the jury would naturally and necessarily take it to be a comment on (Archie’s) failure to testify.’

“Additionally, the evidence in this case is not so strong that Archie would necessarily have been convicted absent the District Attorney’s improper argument. Willis was the only witness to the offense, but his credibility had been impeached. Willis admitted that he lies a lot and lied to the police about the murder.

“Other than Willis’s testimony, the record contains no other direct evidence establishing that Archie shot Anthony Williams with a firearm as alleged in the indictment and the indirect evidence, while significant, was not overwhelming.

“Accordingly, we conclude that the trial court abused its discretion by denying Archie’s motion for mistrial.”