Lureaner Oulare v. State ( 2002 )

NO. 07-01-0404-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 22, 2002,
______________________________
LUREANER OULARE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;
NO. 95,500; HON. W. F. CORKY ROBERTS, PRESIDING
_______________________________
Before B0YD, C.J., QUINN and REAVIS, J.J.
Appellant Lureaner Oulare appeals her conviction for interfering with public duties.
She asserts one issue before us, and it involves various comments made by the trial court
to the venire members during voir dire. Those comments, which purportedly instructed the
venire that the police officers who were to testify were telling the truth and which informed
the jurors that they were part of the “government,” were “fundamental structural error of
constitutional dimension that require the reversal of the judgment,” according to appellant.1
We overrule the issue and affirm the judgment.
Background
Whether a particular matter constitutes error often depends upon the context of the
act. This means that the context of the act is quite important to our review. See Means
v. State, 955 S.W.2d 686, 692 (Tex. App.–Amarillo 1997, pet. ref’d, untimely filed) (stating
that an appellant is not free to dissect a trial record for words which may be rendered
ambiguous when taken from their context and then use them, once removed from their
context, to complain of error). Thus, we are compelled to view the utterances at issue
within their context, and that context follows.
First, regarding the comment about police officers being truthful, the court said:
We can’t tell you how to make your decisions, how to determine if a witness
is credible or not . . . . The only thing I can tell you beyond using your
common sense is you cannot give any witness instant credibility nor can you
take away credibility just because of who they are, what their occupation is,
or any other thing.
And I’ll give you an example. One of the most famous judges that the United
States has ever produced was the Chief Justice of the Supreme Court of
New York and he was highly touted as the next member of the United States
Supreme Court, and he did some inappropriate things - - well, transcended
inappropriate. He did some illegal things, and he’s now in the penitentiary.
1
Appellant likens the comments to fundamental structural error to avoid the argument that her
objections were waived pursuant to Texas Rule of Appellate Procedure 33.1. Simply put, she did not object
to them when uttered below.
2
There are former police officers in the penitentiary. There are former FBI
agents in the penitentiary. Every occupation that we might admire has their
bad seeds, so you can’t just automatically assume that someone’s going to
tell you the truth just because of their occupation.
If another judge comes in here, you listen to them to what they say, make
your determinations on whether they’re telling you the truth based on what
they say and how logical it is. Can you do that? That’s not in any way to say
that you should view their testimony with skepticism. That means don’t just
say, if he’s a fireman, I’m going to believe him, because that’s idiotic if you
think about it. Everybody agree with that? There’s a whole bunch of
policemen sitting right back there and they will tell you that’s idiotic. They
don’t expect you to believe them because they’re policemen. They expect
you to believe them because of what they’re telling you and it’s the truth.
And the way they convey it to you should convince you that it’s the truth. If
it doesn’t, well, don’t believe them. Everybody all right on that?
Every time I make that little speech, somebody . . . says, if a fireman got up
there . . . I would believe everything he said. Well . . . we all admire firemen,
[sic] police officers. I would like to believe you admire judges . . . . But that
doesn’t mean that they’re all perfect. It just means they’re in that profession
and we have a right to - - we have a right to consider their training if it comes
out on the witness stand that they’ve been specially trained and you believe
that, you can take that into consideration certainly. But you can’t give them
automatic credibility.
(Emphasis added). With regard to the comment about jurors being part of the government,
the court said:
[w]e rely on the collective common sense of the American citizens to run our
government, and just because there’s six of you on this jury doesn’t mean
your not a vital part of our government today. And when we think of our
government, we think of President Bush . . . and . . . all of the people we’re
hearing about right now, and they made the major decisions on the big
things that happen in our country, but you six will be part of our government
in this case. Without you, we wouldn’t have the democracy we have. We
3
got to have it this way. It’s an imposition on every one of you. There’s not
a one of you here that doesn’t have something they would rather do today
. . . . If you think about it a little bit, you realize there’s nothing more important
for you to do today as a citizen of this - - of this country. You’re part of
the government of this country today. Everybody agree with that?
With that said, we turn to the arguments of appellant.
Argument
Preservation of Complaint
Initially, we note that appellant failed to object to any of the comments about which
she now complains. That is fatal on appeal given the dictates of Texas Rule of Appellate
Procedure 33.1. The latter obligates one to object at trial, state specific grounds for the
objection, and secure a ruling on the objection as a condition precedent to the assertion
of the complaint on appeal. TEX . R. APP . P. 33.1(a)(1). And, that this requirement
generally applies to error arising from the trial court’s own conduct is clear. See Brewer
v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. 1978) (stating that where no objection is
made, remarks and conduct of the court may not be subsequently challenged unless they
are fundamentally erroneous); Williams v. State, 834 S.W.2d 502, 505 (Tex. App. – Fort
Worth, pet. ref’d) (stating that an appellant must object to the trial court’s comment to
preserve error); Moore v. State, 907 S.W.2d 918, 923 (Tex. App.–Houston [1st Dist.] 1995,
pet. ref’d) (stating that errors involving the trial court’s comment on the weight of the
evidence must be asserted at trial to preserve them for appeal). Recognizing this,
4
appellant attempts to squeeze her circumstance into the window opened in Brewer. That
is, she contends that she was relieved from having to comply with Rule 33.1 because the
supposed misconduct constituted fundamental error. Furthermore, she relies on the case
of Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) to support her supposition. We
find Blue inapposite.
In Blue, the trial court informed the jury that the defendant had received a plea offer
and was contemplating whether to accept it and plead guilty. So too did the trial court
state that it would “prefer” that the defendant plead guilty. Though appellant objected to
neither comment at trial, he complained of them on appeal. The intermediate court
concluded that because no contemporaneous objection was uttered, the error was waived.
However, the Court of Criminal Appeals reversed the decision, holding that the error was
fundamental and outside the scope of Rule 33.1. In so holding, the court did not state that
each instance of misconduct by the trial judge constituted fundamental error. Nor did it
overrule, in any respect, its prior holding in Brewer. Rather, four of those voting to reverse
deemed the comments to taint the presumption of innocence while the fifth and sixth
judges believed that they denied the accused his right to an impartial judge or an impartial
tribunal, respectively. Saldano v. State, 70 S.W.3d 873, 889 n.72 (Tex. Crim. App. 2002).
And, because they implicated those rights, they were held to be fundamental and subject
to assertion for the first time on appeal.
5
So, to say the least, the scope of Blue is far from certain. Nevertheless, we cannot
reasonably interpret it as dispensing with the need to comply with Rule 33.1, save in those
instances wherein the judge’s conduct rises to the level of impugning the presumption of
innocence, denying an accused the basic right to an impartial jurist or tribunal, or the like.
Furthermore, neither of the comments at bar rise to that level, assuming arguendo that
they were even improper.
As for that involving the truthfulness of the police, the court was not telling the jury
that the police would be truthful, as appellant suggested. It is clear from the entire context
of the utterances that the jurist attempted to dissuade the venire from believing the police
or any other official simply because they were the police or a government official. And, in
doing so, it suggested that the police themselves would not want the jurors to deem them
credible merely because they were the police; instead, they (the police) would want to be
believed since they (in their collective minds) believed they would be reciting the truth.
That is a far cry from conduct evincing 1) a defendant’s belief in his own guilt (i.e. informing
jurors that the defendant was seriously contemplating a plea offer) or 2) the court’s bias
against the defendant (i.e. revealing his belief that the defendant should plead guilty).
Simply put, the trial court at bar sought to instruct the jury to have an open,
unbiased mind when hearing the evidence. In Blue, the trial judge did something quite
different. Therefore, the complaint before us falls outside the parameters of Blue but within
6
those established by Brewer, and because appellant did not raise it below, it was waived.
TEX . R. APP . P. 33.1(a)(1).
Nor do the comments about the potential jurors being part of the government fall
within Blue. Again, upon viewing them in context, the trial court was endeavoring to stress
upon the jury the importance of their role in our judicial system or system of government.
It did not inform the venire that as part of the government, it was acting on behalf of the
prosecution, as appellant insinuates.2 Thus, the comments did not taint the presumption
of innocence or effectively deprive appellant of an unbiased judge or tribunal. And, to the
extent they did not, appellant was obligated to object below to preserve them for appeal.
Brewer v. State, supra.
Accordingly, we affirm the judgment.
Brian Quinn
Justice
Publish.
2
We note appellant’s reference to the website of our State Bar and its purported definition of the word
“government.” Yet, she did not cite us to anything of record indicating that the trial judge directed the venire
to the website. Nor did our review of the record reveal any such thing. Nor did our review of the record
disclose anything which would lead one to reasonably infer that by alluding to the “government” the court
meant the prosecution.
7
8