Steven Avilez v. State ( 2010 )

Opinion issued October 7, 2010

Opinion issued October 12, 2010

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-07-00591-CR

NO. 01-07-00592-CR

———————————

Steven Avilez, Appellant

V.

The State of Texas, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Case Nos. 1119152 & 1119154

CONCURRING OPINION

The trial transcript in this case documents a trial court that

§ mocked the defendant:

TRIAL COURT:  Let’s go.  Mr. Avilez, are we clear on this?

AVILEZ:     Yes, sir. With all due respect, I’m just trying to gather my thoughts.  I apologize.

TRIAL COURT:  I believe you’re trying to answer questions that have not been asked. That’s the reason I sent the jury out with all due respect.

§ was hostile:

AVILEZ:     May I speak to my Counsel for a minute, sir?

TRIAL COURT:  No, sir, not unless he comes up here.

§ was intimidating:

At the beginning of Avilez’s testimony, his attorney asked him where he grew up, and he responded, “I lived basically all my life in Pasadena, but I have lived around different places.  I used to live—.”  The trial court interrupted him and instructed him to answer the question. His attorney then asked him if he graduated from high school, and Avilez responded, “With honors, sir.”  The trial court immediately removed the jury and admonished him.

§ was unreasonable toward appellant:

Avilez’s attorney asked him, “What—did you actually work for the National—NASA?  I can’t remember the acronym. National Aeronautic—whatever it is.  Anyway, or did you work for a subcontractor?” and he responded, “Actually, the name of the subcontractor is United States Space Alliance. It’s the major subcontractor.” The trial court again removed the jury to admonish Avilez again.

§ and exhibited a marked antipathy toward Avilez:  sua sponte interrupting Avilez’s testimony repeatedly and frequently, admonishing Avilez and threatening him with contempt after reasonable attempts by Avilez to answer the questions put to him, removing the jury four times during Avilez’s testimony, and twice holding him in contempt for providing the type of answers that are routine in any given jury trial. 

Despite the potential prejudice that may have been caused by the actions and attitude of the trial court, the record is void of any admonishments to the jurors to not allow the interruptions and their frequent removal from the court to be construed against the defendant.

Such repeated dramatic exercises by the court cannot but have been noted by the jurors.  Although the record before us is inadequate to determine whether, and to what extent, the trial court’s behavior affected the jury’s verdict—and we cannot engage in speculation—the mere prospect of the court prejudicing the jury weighs ponderously heavy upon the balance of Lady Justice’s scales.

          Nevertheless, whatever the potential impact of the trial court’s behavior on the jury, because no challenge to any particular court action or ruling was preserved, and no complaint was raised on appeal about the kind of fundamental procedural unfairness that could be held an unconstitutional violation of due process rights, we have no avenue by which to review this trial court’s behavior that may have caused appellant to have an unfair trial.

For this reason, I very reluctantly concur in the judgment in this case.

                                                                   Jim Sharp

                                                                   Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

Justice Sharp, concurring in judgment.

Publish.  Tex. R. App. P. 47.2(b).