Livingston v. State , 1989 Tex. App. LEXIS 3190 ( 1989 )

OPINION

BAKER, Justice.

A jury found Christopher Antonio Livingston guilty of murder and assessed a life sentence. He asserts seven points of error. In his first point, appellant contends that the trial court erred in commenting to the jury panel during voir dire on the court’s own inability to consider the full range of punishment. We sustain this point of error, reverse the trial court’s judgment, and remand the cause for a new trial.

During voir dire, the following discussion transpired before the entire panel of prospective jurors:

A JUROR: If — we’re talking the person was found guilty of murder?

THE COURT: Right.

THE JUROR: I would have a problem with them serving five years or less.

THE COURT: I understand you have a problem, but the law says to be a juror in this case you have to remain open-minded. That is why I’m asking you, can you do it, not whether you would have a problem, because you might or might not. You probably can’t imagine a case that you would want to give a small punishment on.

THE JUROR: Right.

THE COURT: But the law says that you have to wait until you hear the facts. And if you think that that case came up, could you assess five years if you thought that was what the facts deserved under the case that you heard? It may not. There may not be a case that deserves five years in your mind, ever, from the evidence, but if you heard it, you just blocked that out, and say, under no circumstances could I do that, then you can’t sit on this jury. What we’re asking you to do is remain open-minded. If you don’t, it is not a five year case, you’re not going to give him five years, you will not consider it.

THE JUROR: What I was saying, if this is actually — if this person is found guilty of murder, I personally could not see any way that they could only get five years.

THE COURT: Well, I understand that. The law says you’ve got to do that to sit on this jury. You’re saying you can’t follow the law? That is what I am asking.

THE JUROR: I am just telling you what — how I personally feel.

THE COURT: I understand, but that doesn’t help me much. The law says you’ve got to remain open-minded. Can you do that?

THE JUROR: I can try.

THE COURT: That’s all we’re asking you to do. There may not — I can’t imagine any case I would want to give five years on—

MR. KING: Your Honor, excuse me, Your Honor. We object to the comments of the Court.

THE COURT: Overruled. I overrule your objection.

MR. KING: Note our exception, Your Honor.

THE COURT: I know he probably didn’t like me saying that, but—

MR. KING: Excuse me, Your Honor, we object, once again—

THE COURT: I overrule that objection.

MR. KING: —to the comments by the Court.

THE COURT: Sit down:

The law still requires that you remain open-minded, and give the Defendant whatever you think he deserves, after you hear the testimony, and if you make up your mind ahead of time you can’t consider something within that range of punishment, then you can’t sit on this jury. And really, it requires you to just remain open-minded, kind of flow and give him whatever you think he deserves, but you have to be able to say I can consider the full range of punishment. Doesn’t say you have to give it unless you think the facts of our case deserves it. If you do, then give him five years, if not, then you can’t follow that part of the law, all you have to do is tell us about it.

The range of punishment for the offense of murder in this case was a minimum of five years to a maximum of ninety-nine years or life with an optional fine of up to $10,000. Tex.Penal Code Ann. § 12.32 (Vernon 1989). Appellant asserts that he is entitled to a jury that could, in the event of a guilty verdict, consider the entire range of punishment including the minimum of five years. See Bodde v. State, 568 S.W.2d 344, 349 (Tex.Crim.App.), cert. denied, 440 U.S. 968, 99 S.Ct. 1520, 59 L.Ed.2d 784 (1978). He contends that the trial court told the jury panel that, although they would have to keep an open mind and consider the minimum number of years in this case, the court itself did not envision a five year sentence ever being appropriate. Appellant’s position is that obvious concern must be given to the trial court’s improper comments due to the considerable weight a layman might attach to such opinion. Appellant argues that the court’s remark was reasonably calculated to prejudice his rights, and he was denied a fair trial. See Billings v. State, 725 S.W.2d 757, 763 (Tex. App.—Houston [14th Dist.] 1987, no pet.).

As a general rule, the trial court must refrain from commenting on the weight of the evidence in the jury’s presence during any stage of the proceeding. See Tex.Code Crim.PROC.Ann. art. 38.05 (Vernon 1979). A criminal defendant has the right to have a jury that will consider the full range of punishment for the charged offense as prescribed by the legislature. See Tex.Code CRIM.Pboc.Ann. art. 35.16 (Vernon 1989). A trial court’s comment constitutes reversible error if such comment is either reasonably calculated to benefit the State or to prejudice the defendant’s rights to a fair and impartial trial. Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim.App.1983).

The State acknowledges that the trial court’s remark was improper and unfortunate. However, the State contends that in light of the trial court’s comments which immediately followed and in light of the extensive voir dire of the prospective jurors, appellant has failed to show that he was denied a fair trial. The State contends that the facts of the offense were particularly damaging to appellant, which made the issue of whether the jury considered five years as an appropriate penalty almost academic. The State concludes that nothing in the facts suggests that the jury would have considered a penalty at the lower end of the punishment range, and no reversible error is shown. We disagree. The State concedes the trial court’s remark was improper and unfortunate and, in effect, acknowledges error in the proceedings. Therefore, this Court must reverse the judgment unless we determine beyond a reasonable doubt that the error made no contribution to the punishment. Tex.R. App.P. 81(b)(2).

The law contemplates that the trial judge shall maintain an attitude of impartiality throughout the trial. Lagrone v. State, 84 Tex.Crim. 609, 209 S.W. 411, 415 (1919). This is because to the jury, the language and conduct of the trial court have a special and peculiar weight. See Simmons v. State, 55 Tex.Crim. 441, 117 S.W. 141, 143 (1909); Jones v. State, 51 S.W. 949, 950 (Tex.Crim.App.1899); Kelly v. State, 33 Tex.Crim. 31, 24 S.W. 295, 297 (1893). 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. Lagrone, 209 S.W. at 415. The delicacy of the situation in which the trial judge is placed requires that he be alert in his communications with the jury, not only to avoid impressing them with any view that he has, but to avoid in his manner and speech things that they may so interpret. Anderson v. State, 83 Tex.Crim. 261, 202 S.W. 944, 946 (Tex.Crim.App.1918); Crook v. State, 27 Tex.App. 198, 11 S.W. 444, 446 (1889); see Kirk v. State, 35 Tex.Crim. 224, 32 S.W. 1045, 1046 (1895).

Even though, as the State suggests, the question of guilt or innocence may not have been open to doubt, we are unable to say beyond a reasonable doubt, under the circumstances of this case, that the trial court’s remark did not prejudice appellant’s right to a fair and impartial trial. We sustain appellant’s point number one.

In view of our disposition of appellant’s first point of error, we do not deem it necessary to discuss appellant’s remaining six points of error. We reverse the trial court’s judgment and remand the cause for a new trial.

OVARD, J., dissents.