Williams, Ernest Elroy v. State ( 2003 )

Opinion issued October 23, 2003

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00816-CR

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ERNEST ELROY WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 40,190

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MEMORANDUM OPINION

          A jury found appellant, Earnest Elroy Williams, guilty of the following offenses and assessed the following punishments for those offenses: murder, 40 years; felon-in-possession of a firearm, 10 years; and deadly conduct, five years. Appellant brings a single point of error in which he complains about a comment made by the trial court while reading the charge to the jury at the punishment stage. We affirm.

Background

          During the guilt-innocence stage of the trial, the State stipulated that the victim was the first aggressor who provoked a confrontation with appellant. In response to the charges of murder and deadly conduct, appellant claimed he acted in self-defense. Appellant claimed necessity in response to the charge of felon-in-possession. The charge submitted to the jury at the punishment stage was an agreed charge that included a mitigating instruction on sudden passion.

          While reading the charge to the jury, the trial court made the following remark concerning the sudden-passion instruction: “That’s not familiar to me. Is that part supposed to be there?” Appellant’s counsel responded “yes” and asked to approach the bench. With the jury excused and the prosecutor and appellant’s counsel present, the following discussion took place:

DEFENSE ATTORNEY: Very recent case out, Blue versus State, which talks about comments by judges during the course of giving instructions, these sorts of things. What you are about to read, Judge, is the part that would have reduced this from first degree to second degree murder. All right.

Specifically, our statute for sudden passion is by confinement for a period of not more than 20 years or less than 2 years; and there is a special issue that’s also included in this.

What I’m afraid is you just made a comment to the jury right before reading this that you said, “Oh, I’m not really familiar with this.” That could be interpreted by the jury to mean that this is something you really don’t know anything about and have some sort of—unintentionally, you may have conveyed to them that this should not be given the proper consideration before you, yourself, really don’t know anything about it. I know it wasn’t intentional; but as we’ve talked about before, sometimes it’s not what’s intentional.

THE COURT: I just didn’t want to read something unless it was supposed to be in the charge.

DEFENSE ATTORNEY: I understand that and it is—that’s what I’m afraid when you made that comment. “I’m not familiar with this. Should this be in there,” that was an inadvertent comment that could be misinterpreted by the jury.

THE COURT: Where is murder?

DEFENSE ATTORNEY: Judge, maybe what’s happened—I don’t know about the last time you charged a murder time [sic]—

THE COURT: Long time.

DEFENSE ATTORNEY: Used to be that this issue was decided in the guilt-innocence. Since recently, the special issue on sudden passion has been changed to be decided on punishment.

THE COURT: Okay.

DEFENSE ATTORNEY: Boggles my mind, but that’s what the rule is; and, so, I’m afraid when you made that comment, that it could somehow in the juror’s mind—

THE COURT: Okay. Well, I’m not concerned about that. You can make an objection to that, but I just—

DEFENSE ATTORNEY: Okay. I’m going to make an objection for the record, and I think the Court should just—when the jury comes back, say, “I need to start this all over” and just start over; and they won’t even know what they missed.

THE COURT: That’s what I planned on doing.

DEFENSE ATTORNEY: Okay.

. . . .

THE COURT: Okay. That looks fine and I’ll—I will start over.

DEFENSE ATTORNEY: Thank you.

          When the jury returned after this discussion, the trial court instructed the jurors, “Okay. Ladies and gentlemen, I’m just going to start over.” Then trial court then read the complete charge to the jury, starting at the beginning. The complete charge included the following instruction:

During your deliberations you are instructed that you should not consider the remarks, rulings or actions of the judge presiding during the trial as any indication of the Court’s opinion as to the existence or nonexistence of any fact or as an indication of the Court’s opinion as to the punishment to be assessed against the defendant.

Analysis

          Appellant contends that the trial court’s comment was an improper comment on the evidence, in violation of article 38.05 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979) (prohibiting trial judge from commenting on weight of evidence or conveying opinion concerning case). Appellant contends that he preserved error by objecting to the trial court’s comment, but alternatively contends that the magnitude of trial court’s error obviated any requirement to object. See Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (citing Tex. R. Evid. 103(d) (fundamental error in criminal cases)).

Applicability of Blue

          In Blue, a divided Court of Criminal Appeals held that a trial court’s comments at the beginning of the jury-selection process constituted fundamental error that required no objection to preserve error for appeal because the comments “vitiated” the defendant’s presumption of innocence before the venire. Blue, 41 S.W.3d at 132-33. We note, at the outset, that this case differs from Blue because the trial court’s remark occurred at the sentencing stage, when the fundamental right to be presumed innocent had expired, given the jury’s having already found appellant guilty of the three charged offenses. Although a defendant is entitled to an impartial judge at every stage of the trial, see id. at 138 (Keasler, J. concurring), “there will be few cases where the judge’s statements when viewed objectively are so egregious as to render him biased.” Id.

          As excerpted above, the record demonstrates that the trial court’s question derived from a momentary confusion concerning whether the instruction on sudden passion should have been included in the charge on punishment. The record further reflects that appellant’s counsel described the trial court’s comments as “inadvertent,” and the conference outside the presence of the jury clarified that the instruction was properly included in the charge. At the conclusion of that conference, appellant’s counsel proposed that the trial court inform the returning jurors that he would “just start over; and they won’t even know what they missed.” The trial court agreed, instructed the jurors on their return that he would “start over,” and complied with appellant’s counsel’s request by reading the entire charge without any interruption concerning the instruction on sudden passion.

          We note further that the complete jury charge on punishment included the instruction, quoted in full above, that the jurors were to disregard “remarks, rulings[,] or actions of the judge . . .” as indicating the trial court’s opinion concerning any fact or the punishment to be assessed. We presume that the jury followed this instruction. See Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002).

          Given the trial court’s second, corrected reading of the charge, as proposed by appellant, together with the trial court’s additional instruction concerning incidental comments by the court, we conclude that the trial court’s initial comments do not suggest egregious bias. See Blue, 41 S.W.3d at 138 (Keasler, J., concurring). Because the alleged error thus fails to constitute fundamental error, appellant had to comply with the usual requirements to preserve his complaint in order to complain on appeal. Compare Blue, 41 S.W.3d at 132-33 (holding that no objection required to preserve “plain error” premised on comments by trial court that “effectively destroyed defendant’s presumption of innocence”).

  No Error Preserved

          To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if it is not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a). Appellate review is further premised on the complaining party’s obtaining an adverse ruling. Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999); Steadman v. State, 31 S.W.3d 738, 741 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). An appellant who obtains all the relief he has requested has not preserved error. See McCoy v. State, 10 S.W.3d 50, 55 (Tex. App.—Amarillo 1999, no pet.).

          Although conceding that the trial court’s comments were inadvertent and initially objecting that those comments might have adversely influenced the jury, appellant’s counsel proposed the solution chosen by the trial court to resolve any confusion—to read the charge again without the comment. Having proposed this solution, appellant’s counsel acquiesced to it, without further comment. Having obtained all the relief he requested, appellant may not reassert his initial complaint in this Court. See McCoy, 10 S.W.3d at 55.

          We overrule appellant’s sole point of error.

  Conclusion

          We affirm the judgment of the trial court.

                                                                                  Elsa Alcala

  

                                                                                  Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).