Bachus v. State ( 1991 )

OPINION

WHITHAM, Justice.

Appellant appeals a conviction for criminal conspiracy to commit aggravated unlawful possession with intent to deliver cocaine in violation of Tex.Penal Code Ann. § 15.02(a) (Vernon 1974) and the Texas Controlled Substances Act. Act of May 30, 1983, 68th Leg.R.S., ch. 425, 1983 Tex.Gen. Laws 2371 & 2373 repealed by Act of May 18, 1989, 71st Leg.R.S., ch. 678, § 1, 1989 Tex.Gen Laws 2934 & 2935-36 (current version at Tex.Health and Safety Code Ann. §§ 481.108 & 481.112 (Vernon 1990)). In his first point of error, appellant contends that the trial court erred in overruling appellant’s objection to the court commenting on the weight of the evidence in violation of the provisions of Tex.Code CRiM.PROC. Ann. art. 38.05 (Vernon 1979). We agree. Accordingly, we reverse and remand.

Although both the State and appellant cite to a statement of facts as to the trial itself, our record does not contain any such statement of facts. All that has been filed as the record in this appeal is:

(1) the transcript, and

(2) statement of facts on motion for new trial.

Nevertheless, both the State and appellant cite to the record of a statement of facts as to the trial itself. Indeed, the facts set out below are undisputed inasmuch as both briefs offer us virtually the same facts to be considered. Moreover, any statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by the opposing party. Tex.R.App.P. 74(f) (formerly Tex.R.Civ.P. 419). The State does not challenge any statement made by appellant in his original brief as to the facts or the record. Consequently, we accept as correct the statement made by appellant in his original brief as to the facts or the record. Indeed, this court has applied the rule in civil cases as here illustrated. Any statement made by appellant in his original brief as to the facts or the record may be accepted by the court unless challenged by the opposing party. Jones v. American Economy Ins. Co., 672 S.W.2d 879, 881 (Tex.App.—Dallas 1984, no writ). In Jones, we then proceeded to accept the unchallenged statements. Indeed, the rule is applicable to unchallenged statements pertaining to damage calculations. See Modern Aero Sales, Inc. v. Winzen Research, Inc., 486 S.W.2d 135, 141 (Tex.Civ. App.—Dallas 1972, writ ref'd n.r.e.) (plaintiff stated in brief that the market value of the aircraft is established conclusively in the amount of $16,000.00 by uncontrovert-ed testimony, and we held that, since this statement was not challenged in appellee’s brief, this Court accepts it as true under Texas Rule of Civil Procedure 419). See also Board of Ins. Commissioners of Texas v. Allied Underwriters, 180 S.W.2d 990, 993 (Tex.Civ.App.—Dallas 1944, no writ) (we accepted as correct appellants’ unchallenged statement that various named items aggregated $30,777.34 of losses sustained by the company by reason of the fraud, dishonesty, and bad faith of its president and secretary). Moreover, the rule applies in criminal cases. One of the rules of civil procedure applicable to appeals in criminal cases is former Tex.R.Civ.P. 419. Burgess v. State, 628 S.W.2d 116, 119 (Tex.App.— Beaumont 1981, no pet.). Therefore, we are authorized to utilize Rule 74(f) of the Rules of Appellate Procedure to control the proceedings in the present case. See Burgess, 628 S.W.2d at 119. Thus, we do so. With this explanation, we give this factual background.

As its first witness, the State called Officer Craig Leffler, a narcotics investigator for the City of Duncanville. In the beginning of his testimony, the officer began to relate certain conversations that occurred between the officer and a co-defendant. Counsel for appellant interposed a hearsay objection to that testimony with regard to appellant until the State established that the statements were made in furtherance of the conspiracy. The trial court sustained the objection. Subsequently, in a hearing conducted outside the presence and hearing of the jury, the trial court ruled that the State had established the existence of a conspiracy and would therefore admit over hearsay objection the conversation the police officer had with each defendant out of the presence of the other defendant. Thereafter, the State rested its case-in-ehief. After this, in the presence of the jury, the State re-offered the testimony which the trial court had previously admitted only against a co-defendant and requested that it be admitted against appellant because the State had established a conspiracy and the statements were made in furtherance of the conspiracy. Counsel for appellant asked what testimony the prosecutor was referring to. The trial court responded in the following manner in the presence and hearing of the jury:

THE COURT: I think he’s offering the testimony between Officer Leffler and defendant Smith, and I excluded it as to defendant Bachus until there was evidence of a conspiracy. And I now find that there is evidence of a conspiracy, and I’m going to admit it for all purposes.

(emphasis added). Appellant immediately objected to the trial court’s statement as being a comment on the evidence. The trial court overruled the objection.

The rule in Texas governing discussion of evidence by the trial court is as follows:

In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.

Tex.Code Crim.PROC.Ann. art. 38.05 (Vernon 1979). Appellant asserts that the comment of the trial court violated the mandatory provisions of this article of the Code of Criminal Procedure. We conclude that the provisions of article 38.05 state a clear legislative policy that trial courts of this state shall not comment upon the weight of the evidence or in any way infer to the jury the court’s opinion of any fact issues before the jury for resolution. The State concedes in its brief that for a trial court’s violation of article 38.05 to constitute reversible error, “the comment to the jury must be such that it is reasonably calculated to benefit the State or prejudice the rights of the defendant.” Becknell v. State, 720 S.W.2d 526, 531 (Tex.Crim.App.1986), appeal dism’d, cert. denied, 481 U.S. 1065, 107 S.Ct. 2455, 95 L.Ed.2d 865 (1987). It is a well established rule of law in this State that a trial judge should studiously avoid making any remark calculated to convey to the jury his opinion of the case or of any fact issue raised by the evidence. McClory v. State, 510 S.W.2d 932, 934 (Tex.Crim. App.1974). In carrying out its duties in ruling upon an appellant’s objection, a trial court must not embellish the ruling with an unwarranted comment. See Smith v. State, 595 S.W.2d 120, 123-24 (Tex.Crim. App. [Panel Op.] 1980).

In the present case, appellant was on trial for the offense of criminal conspiracy. Thus, the jury was to be the sole judge of the credibility of the testimony of all the witnesses. Jones v. State, 788 S.W.2d 834, 836 (Tex.App. — Dallas 1990, no pet.). Indeed, the jury should have been left to judge the weight and credibility of the testimony free from the influence of the trial judge. Jones, 788 S.W.2d at 836. In the present case, we conclude that the trial court embellished its ruling admitting the testimony of Officer Leffler with an unwarranted comment. We conclude further that the unwarranted comment “I now find that there is evidence of a conspiracy” negated the jury’s role as the sole judge of the credibility of all the witnesses and failed to accord the jury its full function of judging the weight and credibility of the testimony free from the influence of the trial judge. At the stage of trial at which the challenged comment was made, the jury had not had the opportunity to weigh and determine the credibility of the testimony leading to a finding of appellant’s guilt of the offense of criminal conspiracy. Nevertheless, the trial court made known to the jury that the judge found that “there is evidence of a conspiracy.” In the face of that comment, it defies logic and common sense to expect a jury to tell its “own judge” that he is wrong in what he has heard the witnesses say. Jurors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved. Jones, 788 S.W.2d at 836. In the present case, the jury could but surmise that the judge believed that a guilty verdict would or should be forthcoming since “I [the judge] now find that there is evidence of a conspiracy.” See Jones, 788 S.W.2d at 836. In the present case, we conclude that the trial court advised the jury in their presence and hearing that in the trial court’s opinion the State had established the existence of the conspiracy. We conclude, therefore, that the comment by the trial court violated article 38.05 and was beneficial to the State and prejudicial to appellant. It follows that the comment constitutes reversible error.

In concluding that the trial court’s comment violated article 38.05, and was reasonably calculated to benefit the State, and prejudice the appellant’s rights, we are cognizant of three contentions made by the State. First, the State argues that the comment at issue “just articulated the reason for [the admission of Officer Leffler’s testimony].” We find no merit in this argument. The State cannot escape the consequences of a trial judge failing to studiously avoid making any remark calculated to convey to the jury his opinion of the case or of any fact issue raised by the evidence. See McClory, 510 S.W.2d at 934. Even if it can be argued that the trial court’s comment constitutes no more than a statement of the law, i.e., that the evidence is sufficient to establish a conspiracy, we conclude that the comment, nevertheless, embellishes a ruling on a defense objection to evidence. See Smith, 595 S.W.2d at 123-24. Hence, even on this assumption, we conclude that the trial court improperly made a remark calculated to convey to the jury its opinion of the case or of a fact issue raised by the evidence. See McClory, 510 S.W.2d at 934. Second, we find no merit in the State’s argument that Davenport v. State, 460 S.W.2d 130, 132 (Tex. Crim.App.1970) controls. (“I believe there is some evidence that he returned [to the penitentiary] is there not.”) We do not read Davenport as addressing a ground of error complaining of a trial court’s comment made in violation of article 38.05. Ground of error eight in Davenport appears to complain of improper State’s argument at the punishment hearing. See Davenport, 460 S.W.2d at 131-32.

Third, we find no merit in the State’s insistence that the trial court cured its error in its charge. The State points to this language in the charge:

At times throughout the trial the Court has been called upon to pass on the question of whether or not certain offered evidence might properly be admitted. You are not to be concerned with the reasons for such rulings and are not to draw any inferences from them. Whether offered evidence is admissible is purely a question of law. In admitting evidence to which an objection is made, the Court does not determine what weight should be given such evidence; nor does it pass on the credibility of the witness ....

You are instructed that you are not to allow yourselves to be influenced in any degree whatsoever by what you may think or surmise the opinion of the Court to be. The Court has no right by any word or any act to indicate any opinion respecting any matter of fact involved in this case, nor to indicate any desire respecting its outcome. The Court has not intended to express any opinion upon any matter of fact in this case, and if you have observed anything which you have or may interpret as the Court’s opinion upon any matter of fact in this case, you must wholly disregard it.

(emphasis added). In light of the charge, the State argues that the trial court cured all error by instructing the jury to disregard any perceived comment on the weight of the evidence. The State advances this assertion relying solely upon Cline v. State, 463 S.W.2d 441, 444 (Tex. Crim.App.1971). We quote Cline’s entire disposition of the assigned error as to comments on the weight of the evidence:

Grounds of error seven and eight complain of statements made by the trial judge which appellant feels were prejudicial and which amounted to comments on the weight of the evidence. We have examined these statements and perceive no error. Further, any error which may have existed was cured by the court’s instruction to the jury that they were not to consider any statements of the court. Estrada v. State, Tex.Crim.App. 422 S.W.2d 453 [1968], and Riley v. State, Tex.Crim.App. 406 S.W.2d 438 [1966],

Cline, 463 S.W.2d at 444-45. The question of dictum aside, we point out that Cline did not involve instructions given in the charge. Instead, Cline addressed only the effect of an instruction to disregard given following a trial objection to the trial court’s comment. Indeed, the instruction given in Riley, 406 S.W.2d at 440, and cited in Cline, falls in the same category as does also the instruction to disregard in Estrada, 422 S.W.2d at 455, also cited in Cline. We conclude, therefore, that neither Cline, nor the cases it cites, controls in the present case. Cline and the cases it cites apply to instructions to disregard made during the evidentiary stage of the trial. The present case has no such instruction. Instead, the issue in the present case involves instructions contained in the jury charge. We conclude, therefore, that Cline does not support the State’s argument. Consequently, we conclude that the instructions contained in the charge cannot serve as an instruction to disregard the trial court’s comment. We reach this conclusion for several reasons. First, the trial court did not sustain the objection to the comment — the trial court overruled the objection. Thus, no need for an instruction to disregard was necessary or appropriate. Second, we deal with error that is reasonably calculated to benefit the State and prejudice the defendant. Indeed, we have a comment which jurors are prone to seize with alacrity, i.e., language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence. See Jones, 788 S.W.2d at 835-36. We conclude, therefore, that to be effective an instruction to disregard must immediately follow the comment and not await the reading of the charge. We reach this conclusion because a trial judge’s improper comment on the weight of the evidence, not at once ordered to be disregarded by the judge’s command, festers in the jury’s mind so as to increasingly benefit the State as the trial progresses and so as to increasingly prejudice the defendant as the trial progresses. Moreover, we fail to see how the belated general language of the charge quoted above directs the jury’s attention to the particular comment made and specifically instructs them to disregard that specific comment. It follows, and we so hold, that a trial court’s charge to the jury in the above language does not cure all error by instructing the jury to disregard the trial court’s comment on the weight of the evidence. Indeed, although federal trial judges have the right to comment on the evidence, there are limitations. See United States v. Dillon, 446 F.2d 598, 601 (5th Cir.1971). Where the federal trial court exceeds those limitations in its charge, the prejudicial effect of the charge cannot be cured by the court further instructing the jury in the charge that assessment of credibility of the witness was their exclusive function. See Dillon, 446 F.2d at 601.

Because we conclude that the trial court’s comment violated article 38.05 and was reasonably calculated to benefit the State and prejudice appellant’s rights, we reverse the trial court’s judgment and remand the case to the trial court.