Moore v. State

¶1OPINION

¶2In this appeal, we are asked to decide whether a complaint about unobjected to comments by the trial judge on the weight of the evidence is fundamental error that may *920be raised for the first time on appeal. We hold that it is not and affirm the conviction.

¶3A jury found appellant, Roderick DePaul Moore, guilty of possession of a controlled substance and aggravated assault of a police officer.1 After finding two enhancement paragraphs to be true, the trial court assessed punishment at 25-years confinement for each conviction with the sentences to run concurrently. In two virtually identical points of error, appellant contends that he was denied a fair trial when the trial court, sua sponte, cross-examined appellant’s primary witness in an adversarial manner.

¶4Facts

¶5At trial, the primary witnesses for the State were the two arresting officers. They testified that they saw appellant drop a crack pipe.2 They further testified that after having briefly struggled with appellant in order to subdue him and place him under arrest,3 one of them immediately retrieved the crack pipe from where they had seen appellant drop it.

¶6In order to rebut the testimony of the officers, the defense called appellant’s mother, Ms. Thompson, who had come upon the scene as appellant was being taken into custody. She testified that after the arresting officers placed appellant under arrest, they were joined by several other officers who had been called to the scene as backup. She claims that the arresting officers told the other officers that they had seen appellant drop “something.” She further testified that all of the officers searched the area for approximately 15 minutes before one of the officers, who had arrived on the scene after appellant was in custody, discovered a piece of glass tubing and asked the arresting officers if it was what they were looking for.

¶7Comments by the Court

¶8During the State’s cross-examination of Ms. Thompson, the trial court questioned the witness. The relevant portion of Ms. Thompson’s testimony and the interjection by the trial court are as follows:

Q: [THE STATE]: And just so it’s clear to the jury, you don’t know what happened, what your son did or what the officers did at the corner or at the intersection until you came outside the house, correct?

A: Right.

Q: And if your son was somewhere else besides the front yard, even in the intersection or somewhere else before he got to the yard, you weren’t there to see any of that, correct?

A: No, I was not.

Q: And when you testify that you saw the officer searching for something, you’re not testifying and you’re not in a position to say that the officers had not found anything already, are you?

A: I can testify.

Q: I—

A: I can testify that they did not find what they identified as a crack pipe.

THE COURT: How on earth would you know that?

A: I saw him pick it up.

THE COURT: Now, are you saying there’s only one crack pipe in Harris County, Texas?

A: No, I’m not.

THE COURT: Do you know of your own knowledge that there was no other crack pipe in this county prior to the time they found that one?

A: No, I’m not saying that.

THE COURT: If you’re saying that there’s only one found, and you saw it, you don’t know—

*921A: The one that was found on that scene, sir, that’s what I meant.

THE COURT: But you don’t know what happened prior to the time that you went outside.

A: No, I do not.

THE COURT: Unless you’re clairvoyant.

A: No, I don’t.

THE COURT: Good enough.

¶9Had appellant objected to these remarks, the trial court should have sustained his objection. The Code of Criminal Procedure states:

In ruling on the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the ease, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.

¶10TexUode CRIM.P.Ann. art. 38.05 (Vernon 1979).

¶11Standard of Review

¶12The problem appellant faces is that he did not object to the judge’s remarks. As a general rule, in order to preserve a complaint for review on appeal, a party must have made a timely objection to the trial court and obtained a ruling on the objection. Tex.R.App.P. 52(a); see Munoz v. State, 485 S.W.2d 782, 784 (Tex.Crim.App.1972). More specifically, a defendant must object to the trial court’s comment at trial in order to preserve the error for appellate review. Sharp v. State, 707 S.W.2d 611, 619 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988); Martinez v. State, 822 S.W.2d 276, 282 (Tex.App.—Corpus Christi 1991, no pet.).

¶13Fundamental Error Analysis

¶14In both points of error, appellant argues that the judge’s remarks amounted to fundamental error requiring reversal despite his failure to object. He contends that the trial judge took an adversarial position in his questioning of the defense witness and wrongfully influenced the jury towards disbelieving her testimony in favor of the testimony of the State’s witnesses. The prejudice was magnified when the prosecutor, in his closing argument, suggested that the crack pipe Ms. Thompson saw the officer find may have been a different crack pipe — one discovered on the scene, but unconnected to the case at trial. This suggestion was the gist of the judge’s remarks.

¶15Both this Court and the Court of Criminal Appeals have consistently found that the failure to object to the trial court’s comments precludes subsequent challenges on appeal. However, we have also acknowledged that an exception to the general rule exists in cases in which the trial court’s comments and conduct amount to fundamental error. “Where no objection is made, remarks and conduct of the court may not be subsequently challenged unless they are fundamentally erroneous.” Brewer v. State, 572 S.W.2d 719, 721 (Tex.Crim.App. [Panel Op.] 1978) (emphasis added). “The defendant’s counsel failed to object to the trial court’s comments. In the absence of fundamental error, the defendant has waived these points on appeal.” Cade v. State, 795 S.W.2d 43, 45 (Tex.App.—Houston [1st Dist.] 1990, pet. ref'd) (emphasis added).

¶16Fundamental error is error that is so egregious and creates such harm that the defendant has not had a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984); McIntosh v. State, 855 S.W.2d 753, 760 (Tex.App.—Dallas 1993, pet. ref'd). Egregious harm “is presented when the reviewing court finds that the case for conviction or punishment was actually made clearly and significantly more persuasive by the error.” Skidmore v. State, 838 S.W.2d 748, 755 (Tex.App.—Texarkana 1992, pet. ref'd) (citing Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App.1991)).

¶17Appellant does not cite specific authority for the proposition that the comments made *922by the judge were so egregious that the error was fundamental. Instead, he argues that rule 52(a) should not. apply in this case. He contends that the right to a fair trial in which the trial judge does not intrude as an advocate is so basic in our adversarial system that it enjoys special protection.

¶18The Court of Criminal Appeals discussed the nature of fundamental error in a recent case:

All but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong. Many constitutional rights fall into this category. When we say “that even constitutional guarantees can be waived by failure to object properly at trial,” we mean that some, not all, constitutional rights may be forfeited. On the other hand, certain, relatively few, rights must be protected by the system’s impartial representatives unless expressly waived by the party to whom they belong. Determining which category a right occupies will usually settle the question of procedural default in the context of the particular case.

¶19Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993) (citation omitted).

¶20The court reasoned that our criminal adjudicatory system contains three distinct types of rules: (1) absolute requirements and prohibitions; (2) rights of litigants that must be implemented by the system unless expressly waived; and (8) lights of litigants that are to be implemented upon request. Marin, 851 S.W.2d at 279. Only when this third category of rules is implicated may the defendant forfeit his right by the failure to exercise it. Wright v. State, 873 S.W.2d 77, 82 (Tex.App.—Dallas 1994, pet. ref'd). Our disposition of appellant’s points of error requires us to categorize the right to a trial free of a judge’s comment on the weight of the evidence.

¶21The first category set out in Marinincludes requirements that are essentially independent of the litigant’s wishes. These include the jurisdiction of the court and application of rules regarding separation of powers and due process. This category does not include the rule prohibiting the judge from commenting on the weight of the evidence or conveying his opinion of the case. We do not believe that appellant’s complaint falls within the rubric of absolute requirements and prohibitions.

¶22The second category includes rights that are so fundamental to the proper functioning of our adjudicatory process that they cannot be forfeited by mere inaction. Wright, 873 S.W.2d at 82. For example, if a defendant wishes to relinquish his right to assistance of counsel or his right to a jury trial, he must do so expressly. Id.We do not believe that the right to a trial free of the judge’s comment on the weight of the evidence attains such magnitude that it must be guaranteed unless expressly waived. There is no Texas authority in which a comment on the weight of the evidence has been recognized as fundamental error.

¶23The third category is governed by the law of procedural default. Wright, 873 S.W.2d at 82. This category includes rules that are optional with each litigant, and most evidentiary and procedural rules in our system are of this type. Id. at 83. As a general rule, in order to preserve a complaint for review on appeal, a party must have made a timely objection to the trial court and obtained a ruling on the objection. Tex. RApp.P. 52(a).

¶24In Marin, the court held that a defendant’s right that his appointed counsel have 10 days to prepare for trial belongs in the second category, that is, it must be implemented unless expressly waived. Id. at 280. This holding is based on the reasoning that “the Legislature said so expressly by providing that appointed counsel ‘may waive the [10 days of] preparation time with the consent of the defendant in writing or on the record in open court.’” Id.(citing Tex.Code CRIM. P.Ann. art. 1.051(e) (Vernon 1995)). Therefore, a trial court’s denial of the right to 10 days preparation time is preserved on appeal *923for a fundamental error analysis even though there was no objection at trial. In contrast, the Wrightcourt held that the right to have a trial court order preparation of a presentenc-ing investigation report before the imposition of sentence falls in the third Marincategory, in which a complaint is forfeited by nonaction. The failure of the defendant to object at trial waived his complaint. Wright, 873 S.W.2d at 83 (citing Tex.Code Crim.P.Ann.art. 42.12, § 9 (Vernon 1995)).

¶25We hold that the article 38.05 right to prohibit the judge from commenting on the weight of the evidence or conveying his opinion of the case falls within the third Marincategory and is, therefore, forfeitable by inaction. We base this conclusion on the absence of a waiver clause in article 38.05. Tex.Code Crim.P.Ann. art. 38.05 (Vernon 1979). Errors of this type can be readily cured with a proper jury instruction. Having failed to object properly and timely at trial, appellant has forfeited his right.

¶26Conclusion

¶27We overrule points of error one and two.

¶28We affirm the judgment of the trial court.

¶29OLIVER-PARROTT, C.J., concurs.

¶30ANDELL, J., dissents.