Jewell Lee Thomas v. State

IN THE
TENTH COURT OF APPEALS
No. 10-13-00383-CR
JEWELL LEE THOMAS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court
Navarro County, Texas
Trial Court No. 66895
MEMORANDUM OPINION
Jewell Lee Thomas appeals from a conviction for the offense of driving while
intoxicated. TEX. PEN. CODE ANN. § 49.04 (West 2011). Thomas complains that the trial
court erred by allowing the State to make an unsworn comment regarding his
courtroom behavior, failed to instruct the jury to disregard the State's improper
comment, and commented on the evidence in an instruction to the jury. Because we
find that the error regarding the unsworn comment, if any, was harmless, and the issue
regarding the trial court's comment was not preserved, we affirm the judgment of the
trial court.
During the testimony of the arresting officer, the officer was asked about his
observations of Thomas's "droopy" eyes at the time of the traffic stop and at trial. The
State asked the officer whether Thomas's eyes were "droopier" at the scene than they
were while Thomas was in the courtroom at that time. The officer responded in the
negative and the State responded by saying, "May the record reflect the defendant's
actually tightened his eyelids since I asked this question. I'll move on." Counsel for
Thomas objected that the State's comment violated his right not to testify pursuant to
the Fifth Amendment of the United States Constitution.
A discussion then ensued in front of the jury between the State and trial counsel
for Thomas regarding whether his courtroom demeanor and physical attributes
constituted "visible evidence" for the jury to consider. Thomas's trial counsel asked the
trial court to strike the comments and to instruct the jury to disregard. The trial court
initially sustained the objection, then when questioned by the State, overruled the
objection and stated that the State was "allowed to do that. And allow the jury to do
their job and draw whatever conclusion, if any, they wish to." Trial counsel for Thomas
then asked the trial court if his objection was overruled, and the trial court said it was.
Trial counsel then asked for a mistrial which was denied.
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Assuming without deciding that the State's comments were erroneous, Thomas
argues that we must determine whether Thomas was harmed pursuant to rule 44.2(b) of
the rules of appellate procedure, which requires that we disregard any error not
affecting substantial rights. TEX. R. APP. P. 44.2(b). In other words, "the conviction
should not be reversed when, after examining the record as a whole, the reviewing
court has a fair assurance that the error did not influence the jury or had but a slight
effect." McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005). When
considering whether the error affected the jury's decision, we consider the entire record,
including testimony, physical evidence, the nature of the evidence supporting the jury's
verdict, and the character of the alleged error and how it might have been considered in
light of other evidence. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
The exchange described above was the only instance of the State alluding to
Thomas's physical appearance or attempts to change his "droopy" eyes at trial,
including the State's closing argument.
The evidence of guilt absent the State's comments about the status of Thomas's
eyelids was strong. Thomas was initially stopped for speeding. When the officers
approached his vehicle, there was an open box of beer behind the front seats in the
center of Thomas's vehicle. There was an empty bottle on the back floorboard, and a
strong smell of alcohol was emanating from the vehicle. After exiting his vehicle, the
officer smelled an odor of alcohol on Thomas's breath. Thomas's eyes were droopy and
Thomas v. State Page 3
he walked with a slight limp. On the horizontal gaze nystagmus test, the officer
observed 6 of 6 clues. Also, Thomas was unable to perform the one legged stand and to
follow directions to complete the alphabet from the letters "e" to "p." Thomas further
admitted to the consumption of alcohol and repeatedly requested the officers to charge
him with public intoxication rather than driving while intoxicated. Thomas's blood
alcohol content at the station was .111 and .097, above the legal limit of .08.
Thomas further argues in his sole issue that the trial court's comment to the jury
constituted a comment on the weight of the evidence. However, no objection was made
to the trial court's comment at trial. The State argues that this objection was not
preserved for our review because no objection was made to the trial court.
Ordinarily, a complaint regarding an improper judicial comment must be
preserved at trial. See TEX. R. APP. P. 33.1; Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim.
App. 2013); Jasper v. State, 61 S.W.3d 413, 420-21 (Tex. Crim. App. 2001). When no
objection is made, "remarks and conduct of the court may not be subsequently
challenged unless they are fundamentally erroneous"—that is, the error creates
egregious harm. See Powell v. State, 252 S.W.3d 742, 744 (Tex. App.—Houston [14th
Dist.] 2008, no pet.). A trial court's comments do not constitute fundamental error
unless they rise to "such a level as to bear on the presumption of innocence or vitiate the
impartiality of the jury." Jasper, 61 S.W.3d at 421 (trial court's comments correcting
defense counsel's misrepresentation of previously admitted testimony, showing
Thomas v. State Page 4
irritation at the defense attorney, and clearing up a point of confusion were not
fundamental error).
Thomas does not argue that the trial court's comments constituted fundamental
error, and we do not find that the trial court's comment, if erroneous, constituted
fundamental error. Therefore, an objection was necessary to preserve this portion of
Thomas's issue. We overrule issue one.
Conclusion
Because we have found that the error in the State's comment, if any, was
harmless and the trial court's comment on the weight of the evidence, if any, was
waived, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed October 16, 2014
Do not publish
[CR25]
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