Robert Harris Brinston v. State ( 2004 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Robert Harris Brinston

Appellant

Vs.                   No. 11-03-00053-CR B Appeal from Dallas County

State of Texas

Appellee

The jury found appellant, Robert Harris Brinston, guilty of aggravated sexual assault of a child under the age of 14 and assessed his punishment at imprisonment for 20 years. We affirm.

In a single issue, appellant contends that the trial court committed reversible error when, at the punishment phase of the trial, the court remarked to the jury that appellant would testify; and, in fact, appellant did not testify.

The record at the punishment phase reflects the following:

THE COURT: Do you have further witnesses?

[DEFENSE COUNSEL]: Yes, I do.  May we approach?

THE COURT: Yes.

(Sidebar conference.)

THE COURT: All right.  Members of the jury, there=s only one witness left.  That=s going to be the accused in the case.  I would anticipate his testimony will take more than the ten minutes or so that I=ve got before I have to leave to go to that funeral.  And so what we are going to do is I have to have B to hold a brief hearing here in the courtroom. I=m going to go ahead and let you go.  It=s ten minutes until 11:00 now.  I think that I can be back here by 1:30.  So be back in the jury room at 1:30.

We will hear the last witness and we already have the Charge ready in the case.  So we=ll be ready to hear arguments after that witness is finished.   I anticipate B of course I can never anticipate how long your deliberations will take.  I anticipate we will have this case finished today.  And if you=re able to reach a verdict today then we=ll be finished.

Otherwise you would have to come back tomorrow.  But that wouldn=t require my presence.  I could get someone else to take that verdict.  So you could go ahead and finish up.

All right. You can go with the bailiff and just be back here at 1:30.

Immediately after the jury retired, appellant, out of the presence of the jury, testified that he understood that he had an absolute right not to testify; but, that after consulting with trial counsel, he wanted to testify at the punishment phase.^[1]  The trial court then instructed appellant and his counsel to be back at 1:30 p.m. and the proceedings would continue.  When appellant returned following the lunch break, he testified out of the presence of the jury that he had changed his mind and decided he would not testify.

Appellant did not object to the trial court=s remark to the jury that there was only one witness left and that that was going Ato be the accused in the case.@  Appellant neither requested the trial court to instruct the jury to disregard the court=s comment nor moved for a mistrial.

Appellant cites Bustamante v. State, 48 S.W.3d 761 (Tex.Cr.App.2001), and argues that the trial court=s comment violated his privilege against self-incrimination contained in U.S. CONST. amend. V and TEX. CONST. art. I, ' 10.

The trial court=s comment created an expectation that appellant would testify; and, because appellant did not testify, the comment could potentially call attention to appellant=s silence.  The trial court in both the guilt/innocence charge and the punishment charge instructed the jury regarding appellant=s right not to testify.  The punishment charge included the following instruction to the jury:

Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a right accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him.  In this case, the defendant has elected not to testify, and you are instructed that you cannot and must not refer or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.

We hold that appellant waived any error by failing to object to the court=s comment.  See TEX.R.APP.P. 33.1; United States v. Haynes, 573 F.2d 236 (5th Cir. 1978); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Cr.App.1996), cert. den=d, 520 U.S. 1173 (1997); Espinoza v. State, 843 S.W.2d 729 (Tex.App. - Austin 1992, pet=n ref=d).  We point out that the defendant in Bustamante timely objected, requested a curative instruction, and moved for a mistrial.  The Bustamante court sustained the objection and instructed the jury to disregard the trial court=s remarks.  Furthermore, we hold that the trial court=s comments did not constitute Afundamental error@ of constitutional dimension and that an objection was required to preserve the alleged error.  See Blue v. State,  41 S.W.3d 129 (Tex.Cr.App.2000).  Appellant=s issue is overruled.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

March 4, 2004

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCloud, S.J.^[2]

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^[1]The record indicates (but does not show) that the trial court=s comments resulted from an unrecorded ASidebar conference@ when the court was apparently told that the defense had only one more witness -- appellant.

^[2]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.