Castaneda v. State

¶1concurring & dissenting.

¶2I respectfully concur and dissent.

¶3This case involves the commission of two errors which the majority concludes are both harmless under Texas Rule of Appellate Procedure 81(b)(2).1 The first error involves the denial of appellant’s request under section 3(a)(5) of article 38.22 of the Texas Code of Criminal Procedure. After an appropriate analysis, the majority correctly concludes that the error was harmless under Texas Rule of Appellate Procedure 81(b)(2). I concur.

¶4The second error, however, involves a denial of a much more fundamental right of the appellant. The trial court refused appellant’s timely requested instruction to the jury regarding his right to remain silent during the punishment stage to which he was clearly entitled. Brown v. State, 617 S.W.2d 234, 238 (Tex.Crim.App.1981). The accused received the maximum sentence. Unlike the first error, the majority erroneously concludes that this error was also harmless under Rule 81(b)(2). I disagree and respectfully dissent.

¶5In considering the application of Rule 81(b)(2), certain factors must be considered by the appellate court before even reaching the analytical evaluation of the circumstances of the case.

¶6Initially, there can be no disagreement that Rule 81(b)(2) was never meant to whitewash every error committed against every appellant. If that had been the purpose, the rule would not have placed the extremely heavy burden upon the appellate court to avoid reversal only when “the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.”

¶7Implicit in the rule is the requirement that the appellate court conduct a meaningful and complete analysis of the totality of the circumstances before justifying the conclusion that the error was harmless. In Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984), the court emphasized this requirement, stating:

In both situations the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.

¶8Id. at 171.

¶9Logic dictates that the repeated invocation of the rule for repeated errors in a single trial significantly weakens the justification for -favorably applying the rule with every subsequent error. Certainly, if errors are repeatedly made during a single trial, eventually there has to be some harm. I cannot perceive that our rule of law would condone and encourage repeated alleged harmless errors, when the ultimate result sought is a fair trial.2

¶10*297Another factor to be considered by the appellate courts is the applicable standard of review on appeal established by Almanza, which distinguishes significantly between the degree of harm necessary to reverse when the error is properly preserved by objection and when it is not. In Almanza, the court stated:

If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is “calculated to injure the rights of defendant,” which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.

On the other hand, if no proper objection as made at trial and the accused must claim that the error was “fundamental,” he will obtain a reversal only if the error is so egregious and created such harm that he “has not had a fair and impartial trial” — in short, “egregious harm.”

¶11Id.

¶12Since this appellant made a timely objection to the charge, this court is bound to follow the more lenient “some harm” standard set out in Almanzain the process of conducting the complete analyses required under Rule 81(b)(2). Beathard v. State, 767 S.W.2d 423, 432 (Tex.Crim.App.1989).

¶13This court must also remain cognizant of who has the burden under the rule of establishing that the error is harmless beyond a reasonable doubt. In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court stated:

Certainly error, constitutional error, ... casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment. [Footnote omitted.] There is little, if any, difference between our statement in Fahy v. State of Connecticut [375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171] about “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. [Emphasis added.]

¶14386 U.S. at 24, 87 S.Ct. at 828. The State clearly is the “beneficiary of the error” here and has the burden of establishing that the error complained of was harmless beyond a reasonable doubt.

¶15In this respect, we note that in its brief, the State initially attempts to improperly place its own burden on the appellant, stating, “In his brief, Appellant did not consider or otherwise address this matter or even claim that he was harmed in any way by the trial court’s action.” Perhaps unaware of its burden, the State then presented the following weak argument:

The facts in the present case are almost identical to those in White [v. State, 779 S.W.2d 809 (Tex.Crim.App.1989), cert. denied, 495 U.S. 962, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990)]. In the punishment phase of Appellant’s trial, the State introduced evidence of Appellant’s prior convictions as well as his reputation for being a peaceable and law abiding citizen. Appellant offered no evidence at the punishment phase of the trial. In his brief, Appellant did not consider or otherwise address this matter or even claim that he was harmed in any way by the trial court’s action.

The State would submit that this alleged error was harmless especially in light of the fact that during voir dire, each venireperson who was ultimately selected to sit as a juror was instructed on defendant’s personal right not to testify. Each venireperson answered that he or she understood this right and would not hold it against the defendants if they did not testify. See (S.F. Vol. II pages 18, 56, 63).

¶16Contrary to the State’s contention, the record here reflects that the facts sur*298rounding the trial as well as the facts surrounding the offense itself are indeed completely unlike White, upon which the State relies. White involved the intentional and inexcusable heinous rape and murder of two very old, helpless ladies and the theft of their cars. The case before us involves the killing of the complainant while he was allegedly assaulting the brother of the appellant with a machete and approaching the appellant and his mother. In White, while it is unclear whether the appellant testified during the guilt/innocence phase of the trial, it is clear that he confessed to the two murders, offering no justification for his actions and showing no remorse. The appellant here did not testify at all, but consistently contended in his statement and evidence that he was acting in self-defense and the defense of another. Also contrary to the State’s contentions, this record further reflects that the appellant did in fact present two witnesses in the punishment phase of the trial, and although the jurors were generally admonished during voir dire of the defendant’s right to remain silent, the part of the record to which appellant refers us fails to reflect that the jurors were questioned individually on the subject as suggested by the State.

¶17Consequently, considering the heavy burden upon the State, I fail to see how the State has carried its burden of establishing beyond a reasonable doubt that the error was harmless.

¶18Nevertheless, even if we ignore the foregoing, there is no justification to conclude that the error was harmless beyond a reasonable doubt. Considering that the applicable “some harm” standard of review before us requires reversal if the error is “calculated to injure the rights of the defendant,” this court should pay particular heed to how significant the Supreme Court of the United States considers the defendant’s right to a no inference instruction regarding his remaining silent throughout the trial.

¶19In Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), the court vehemently set out the significance of an accused’s fundamental right to remain silent:

We have repeatedly recognized that “instructing a jury in the basic constitutional principles that govern the administration of criminal justice,” [cite omitted] is often necessary.19 Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law. Such instructions are perhaps nowhere more important than in the context of the Fifth Amendment privilege against compulsory selfincrimination, since “[t]oo many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are ... guilty of crime_” [Cite omitted.] And, as the Court has stated, “we have not yet attained that certitude about the human mind which would justify us in ... a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court_” [Cite and footnote omitted.]

A trial judge has a powerful tool at his disposal to protect the constitutional privilege — the jury instruction — and he has an affirmative constitutional obligation to use that tool when a defendant seeks its employment. No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instructions to reduce that speculation to a minimum.21

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The freedom of a defendant in a criminal trial to remain silent “unless he chooses to speak in the unfettered exercise of his own will” is guaranteed by the Fifth Amendment and made applicable to state criminal proceedings through the Fourteenth. [Cite omitted.] And the Constitution further guarantees that no adverse inferences are to be drawn from the exercise of that privilege. [Cite omitted.] Just as adverse comment on a defendant’s silence “cuts down on the privilege by making its assertion costly,” [cite *299omitted] the failure to limit the jurors’ speculation on the meaning of that silence, when the defendant makes a timely request that a prophylactic instruction be given, exacts an impermissible toll on the full and free exercise of the privilege. Accordingly, we hold that a state trial judge has the constitutional obligation, upon proper request, to minimize the danger that the jury will give eviden-tiary weight to a defendant’s failure to testify. [Emphasis added.]

19 In Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 [ (1978) ], the Court held that the Due Process Clause requires that instructions be given on the presumption of innocence and the lack of evidentiary significance of an indictment. The Court recognized that an instruction on the presumption of innocence has a "salutary effect upon lay jurors," and that "the ordinary citizen well may draw significant additional guidance from such an instruction.” [Cite omitted.] The Court stressed the "purging" effect of the instruction and the need to protect "the accused’s constitutional right to be judged solely on the basis of proof adduced at trial." [Cite omitted.] The same can be said, of course, with respect to the privilege of remaining silent Indeed, the claim is even more compelling here than in Taylor, where the dissenting opinion noted that “the omission [in Taylor’s trial] did not violate a specific constitutional guarantee, such as the privilege against compulsory self-incrimination." [Cite and footnote omitted.] [Emphasis added.]

21 The importance of a no-inference instruction is underscored by a recent national public opinion survey conducted for the National Center for State Courts, revealing that 37% of those interviewed believe that it is the responsibility of the accused to prove his innocence. 64 A.B.A.J. 653 (1978).

¶20450 U.S. at 302-05, 101 S.Ct. at 1120-21.

¶21Recognizing this powerful message of. the United States Supreme Court in Carter, the Texas Court of Criminal Appeals in Brown v. State, 617 S.W.2d 234 (Tex.Crim.App.1981), announced a clear and unequivocal rule regarding the issue before us:

We hold that where a request is made to the trial court to add to its charge at the punishment stage of the trial an instruction on the failure of the defendant to testify, or an objection is made to the omission of such charge, it is reversible error if the trial court fails to honor that request or objection because we find that “members of the jury, unless instructed otherwise, may well draw adverse inferences from a defendant’s silence,” at the punishment phase of the trial, just as they could from the defendant’s silence at the guilt-innocence stage of the trial. “No judge can prevent jurors from speculating about why a defendant stands mute ..., but a judge can, and must, if requested to do so, use the unique jury instruction to reduce that speculation to a minimum.” See Carter, supra, ... 101 S.Ct. at 1113. [Emphasis added.]

¶22Id. at 238.

¶23Thus, according to this holding, this court would be required to reverse the case before us as to punishment, without any further consideration.

¶24Nevertheless, finding justification in the United States Supreme Court’s refusal to directly address the issue of whether this error could ever be considered harmless,3 and declaring that their holding was “[l]imited to the unusual factual setting of this case,” the Texas Court of Criminal Appeals in Beathard v. State, 767 S.W.2d 423, 433 (Tex.Crim.App.1989), appears to have reversed its clear and unequivocal pronouncement in Brownand applied the harmless error analysis for the first time to what had been considered automatic reversible error.4 The court stated:

*300In Carter v. Kentucky, supra, the Supreme Court expressly reserved the question of whether this type of error can be harmless. Carter, supra [450 U.S.] at 304, 101 S.Ct. at 1121. To the extent that we believe that the error in this case could not have contributed to the jury’s answer to the special issues, we must necessarily find that this is not a right which is “so basic to a fair trial that [its] infraction can never be treated as harmless_” Chapman [v. California] 386 U.S. at 28, 87 S.Ct. at 827-28.

¶25Id. at 432, n. 16. Considering the particular jealousy with which the Texas Constitution guards the individual due process rights of its citizens,5 the majority opinion drew a well-reasoned predictable dissent.

¶26Following suit, the Texas Court of Criminal Appeals again applied the harmless analysis to an identical error in White v. State, 779 S.W.2d 809, 828 (Tex.Crim.App.1989), cert. denied, 495 U.S. 962, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990).

¶27It is upon Beathardand Whitethat the majority erroneously misplaces its reliance without considering how very distinguishable both cases are from the case before us.

¶28Beathardinvolved an intentionally planned murder of three relatives of one of the perpetrators, which was carried out by the appellant and an accomplice in a cold, calculating fashion. After conducting an extensive analysis, the court concluded that “[l]imited to the unusual factual setting of this case, ... the trial judge’s error in failing to give a ‘no-adverse-inference’ instruction was, beyond a reasonable doubt, harmless.” 767 S.W.2d at 433. The court set out its basis, stating:

The right to a “no-adverse-inference” instruction is rooted in a jury’s natural tendency to assume that the decision not to testify stems from a defendant having something to hide. See generally Carter v. Kentucky, supra. In the instant case, this was not a concern.- By testifying during guilt/innocence, the jury heard numerous things from the appellant.17 In addition, the State presented no evidence at the punishment phase. Thus, appellant was not placed in a position where the jury would expect him to counter factual assertions made by the State. In fact, if the jury was to draw any improper inferences from a failure to present a case, it would have been made against the State.18 Appellant did, however, call six witnesses.19 Limited to the unusual factual setting of this case, we find that the trial judge’s error in failing to give a “no-adverse-inference” instruction was, beyond a reasonable doubt, harmless.

17 During guilt/innocence, appellant related his version of the facts, his current and past employment, his educational attainments, his family background, and his lack of any criminal record. Aside from a plea for mercy, which was made by appellant’s motion, we can think of nothing else that appellant could have said during the punishment phase that he had not already said.

18 During voir dire, each venireman who was ultimately selected to sit as a juror was *301instructed both on appellant’s right not to testify and his general right not to put on a defense. Each venireman/juror stated that he or she understood these rights and would not hold it against the defendant if he did not testify or call witnesses.

These instructions are of particular importance because, at punishment, appellant went beyond what was required of him by calling witnesses. The jury knew he was not obligated to do so.

19 During the punishment phase appellant called six character witnesses. These included his mother and Cathy Ross, the woman with whom appellant was living. These witnesses testified to appellant’s good and nonviolent character. Appellant’s mother also testified about appellant’s childhood. In addition to these six witnesses, appellant called twenty different character witnesses during the guilt/innocence phase. A number of these witnesses were psychologists or psychiatrists with whom appellant had worked at the Rusk State Hospital. The witnesses with psychological training generally testified concerning appellant's nonviolent tendencies. This testimony was similar to that which is often used to rebut psychological evidence of future dangerousness.

¶29Id. at 432-33.

¶30Unlike Beathard, this case involves a death which appellant contended occurred as a result of self-defense and the defense of another when the complainant was assaulting the accused’s brother with a machete and when the complainant was approaching appellant and his mother. Also unlike Beathard, the record reflects that the veniremen were not questioned individually regarding the appellant’s right to remain silent; the appellant did not take the stand at any time during the trial; the appellant did not present any psychological witnesses at all; the state did in fact present testimony of six damaging witnesses during the punishment phase of the trial regarding appellant’s prior convictions and bad reputation; and, the appellant only presented his sister-in-law to establish appellant as the only support of his wife and family and a plea from his mother for leniency during the punishment phase. Moreover, also unlike Beathard, the State made comments in closing arguments during the punishment stage that, intentional or otherwise, had the potential of delivering a prejudicial message to the jury regarding appellant’s failure to testify.6 Thus, this case is clearly distinguishable from Beathard, and does not fall within the “limited ... unusual setting of” Beathardto “justify holding that the failure to give a ‘no-adverse-inference’ instruction was, beyond a reasonable doubt, harmless.” Id. at 433.

¶31Whiteinvolved an appellant who intentionally and heinously raped a seventy-two-year-old, ninety-two pound woman and murdered her by strangling and stabbing her with a screwdriver. The accused also stole her car and other items. After conducting an extensive analysis, the Texas Court of Criminal Appeals again held that under the unusual circumstances of that case, the failure of the trial judge to give a “no-adverse-inference” instruction during the punishment phase of the trial was, beyond a reasonable doubt, harmless. The court set out its basis as follows:

At the punishment phase, the State introduced evidence that appellant had strangled and suffocated to death an 80 year old woman in Orlando, Florida, a matter of days before he murdered Elizabeth St. John in Houston. According to a confession introduced at punishment, appellant was hired to do some yard work for the elderly Mae Bailey, who he subsequently choked with his hands and suffocated with a pillow. He then took an antique clock from her house, as well as $25.00, a suitcase full of papers and the victim’s 1965 Plymouth Valiant, *302which he ultimately drove to Houston. Appellant sold the clock to an antique shop. He retained the papers, which included the registration to the Valiant.

Appellant confessed to the murder of Mae Bailey at the same time he confessed to the remarkable similar murder of Elizabeth St. John to law enforcement officials in Myrtle Beach, South Carolina. According to Mitchell Kemp, appellant at that time made no expression of regret for his deeds or remorse for his victims.

The State also introduced reputation for violence evidence from Ron Blazer, the former Chief of Detectives for the City of Lancaster, Ohio, Police Department. Also, detailed evidence that appellant was in the process of committing a burglary of Romondo’s restaurant when he was arrested in Myrtle Beach was elicited. This evidence had been excluded by the trial judge at the guilt phase.

Appellant offered no evidence at the punishment phase.

In view of the evidence offered at punishment, coupled with the evidence adduced in the guilt/innocence stage, we cannot say the trial court’s failure give the requested charge was calculated to injure the rights of the defendant in this case. Finding that this could not have contributed to the jury’s answers to the special issues under the record before us, we conclude he suffered no harm from the omission of the requested charge.

¶32779 S.W.2d at 828.

¶33But unlike White, this case involves a death which appellant contended occurred as a result of self-defense and the defense of another when the complainant was assaulting the appellant’s brother with a machete and advancing towards appellant and his mother. There was no evidence that appellant intentionally raped and murdered any defenseless individual. The appellant never testified during this trial. Appellant never confessed without expressing remorse of an intentional murder without any justification. Appellant contended instead that he was acting in self-defense and in the defense of another. And there was no evidence appellant was in the act of committing a burglary when he was arrested. Moreover, also unlike White, the State made comments in closing arguments during the punishment stage that, intentional or otherwise, had the potential of delivering a prejudicial message to the jury regarding appellant’s failure to testify. Thus, this case is likewise distinguishable from Whiteand does not fall within the limited unusual setting of Whiteto justify holding that the failure to give a “no-adverse-inference” instruction in the punishment phase was harmless beyond a reasonable doubt.

¶34In summary, because this appeal involves the invocation of the harmless error rule in two distinct errors, the applicable standard of review is the lenient “some harm” standard under Almanza, the totality of the circumstances surrounding this case is completely distinguishable from Beathardand White, the United States Supreme Court has placed great significance on the right of an accused to remain silent, the State made prejudicial comments during arguments in the punishment stage, and, the State has failed to establish beyond a reasonable doubt that the error was harmless, there is no basis for the majority to hold that this error was not “calculated to injure the rights of the defendant.”

¶35Although as an intermediate court we are bound to follow the law as outlined by our superior courts, we should remain cognizant nevertheless that if the constitutional rights of an accused are not upheld today, there may be no constitutional rights to uphold tomorrow. I am therefore obliged to express my concern about the determination by the Texas Court of Criminal Appeals that an appellant’s right to remain silent is “not a right which is ‘so basic to a fair trial that [its] infraction can never be treated as harmless....’” Beathard, 767 S.W.2d at 482, n. 16. This broad pronouncement by the Texas Court of Criminal Appeals creates the probability that the harmless error rule could be applied as well when an accused has been denied a right to remain silent instruction in the guilt/innocence phase of the trial.

¶36*303Because the right to remain silent has such a clear fundamental constitutional basis, I fear the specter of the harmless error concept creeping far enough to encompass a denial of an accused’s requested instruction on his presumption of innocence.7 This possibility would not only considerably diminish the benefits of all constitutional rights of those accused — innocent or otherwise — but it would have the potential of creating a license to deny accused their constitutional rights on the hopes that any error would nevertheless be declared harmless.8 Thus, unfair trials could be the result, which would necessarily have a disastrous effect on our administration of justice system. In Chew v. State, 804 S.W.2d 633 (Tex.App.—San Antonio 1991, pet. ref’d.), this court stated:

[I]n order to have a fair trial, the jury should have rendered its verdict based solely on the evidence properly admitted during trial, without considering other detrimental evidence [and aspects] which [were] not properly introduced. The Supreme Court of the United States addressed this issue more eloquently in Brady, stating that “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

¶37Id. at 640.

¶38I would reverse and remand for reconsideration of the punishment only.