NO. 1254-99







Mansfield, J., delivered a concurring opinion.

C O N C U R R I N G  O P I N I O N

Because I believe that the comments by the trial judge to the jury were so fundamentally prejudicial that appellant's right to a fair trial was denied, I join the opinion of the majority.

It is important to note initially the court of appeals affirmed the judgment of the trial court en banc. Blue v. State, No. 01-96-00771-CR (Tex.App.-Houston [1st Dist.] 1998). Four justices joined the opinion written by Justice Mirabal, and two justices wrote concurring opinions joining Justice Mirabal's opinion. Justice Cohen wrote a dissenting opinion which was joined by three other justices, and Justice O'Connor also wrote a dissenting opinion. It is unusual for a court of appeals to sit en banc and then issue five separate published opinions in a case.

The trial judge apologized to the venire for their long wait outside the courtroom. He told them:

The second case [this one], which we are going on, is a situation where the attorney has been speaking to his client about what does he want to do. And when you are on the button like these cases, it's a question. Frankly, an offer has been made by the State or do I go to trial. And he has been back and forth so I finally told him I had enough of that, we are going to trial. You have been sitting out here and this is holding up my docket and I can't get anything done until we know if we are going to trial or not.

Frankly, obviously, I prefer the defendant to plead because it gives us more time to get things done and I'm sure not going to come out here and sit. Sorry, the case went away and we were all trying to work toward that and save you time and cost of time, which you have been sitting here and I apologize about that. I told the defendant that. Like I said, I have enough of this and going to trial.

The trial judge then explained to the jury why a defendant, though innocent, might not testify:

Because there are many reasons why defendants do not testify and I have seen many that have nothing to do with their guilt or innocence. I have seen defendants that are so nervous they could not hear the question much less respond to one. There are defendants that have speech impediments. There are defendants that, frankly, look guilty and they are not guilty and their attorney tells them I don't think you'd make a good witness because you cannot enunciate, not really set forth what you are trying to say very well. And you will be up there and stammering and stuttering, and it probably won't look good for you.

It's like I tell all the juries and I get Sister Teresa and I represent her for mass murder. And she is guilty as driven snow and the jury doesn't know that but the defendant's attorney knows it because she admitted it privately. What am I going to do: I am going to put Sister Teresa on the stand because nobody thinks she would tell a lie. She looks like she would be a very honest person and I can put her on the stand. I could have a defendant as innocent as can be and looks guilty and I wouldn't put her on the stand.

In explaining the presumption of innocence, the trial judge stated:

I can tell you in the forty years that this courthouse has been here, in this courtroom, several people that have come through here have been found not guilty by juries and everyone of them are here by indictment.

Appellant did not object to any of the above statements. The State, citing Cockrell v. State, 933 S.W.2d 73 (Tex.Crim.App. 1996), contends that appellant, by not objecting, waived error.

While I agree that error is normally waived absent a timely objection, the doctrine of waiver does not apply to statements made by a trial judge that rise to the level of fundamental error. It is clear to me, in this case, the statements of the trial judge were fundamentally erroneous. We are authorized, under Texas Rule of Criminal Evidence 103, to take notice of fundamental errors even if they were not brought to the attention of the trial court.

A defendant in a criminal case is entitled to the presumption of innocence. Essential to the presumption of innocence are the rights to be tried by an impartial jury and to be deprived of life, liberty or property only by due course of law. U.S. Const. amend. V, VI; Tex. Const art. I. 10, 19. The trial judge is required to maintain an attitude of impartiality throughout the trial. LaGrone v. State, 209 S.W.2d 411,415 (Tex.Crim.App. 1919). The trial judge is not permitted to comment on the weight of the evidence in the jury's presence or convey to the jury his opinion of the case at any stage of the trial. Tex. Code Crim. Proc. Art. 38.05. Comments by the trial judge constitute reversible error if they are reasonably calculated to prejudice the defendant's rights, though such error may be waived by the absence of a timely objection. Sharpe v. State, 648 S.W.2d 705, 706 (Tex.Crim.App. 1983). We have held that comments by the prosecutor to the effect that defense counsel has no duty to refrain from putting on witnesses who will lie or to see "that justice is done" are reversible error, implicating due process. Wilson v. State, 938 S.W.2d 57, 61 (Tex.Crim.App. 1996).

Turning to the instant case, the trial judge ignored his obligation to act as an impartial arbiter. His first statement told the jury, essentially, the State and appellant were discussing how appellant would plead but appellant was having difficulty in deciding how to plead. (1) Furthermore, the statement told the jury it was, in the opinion of the trial judge, appellant's fault for the delay in trying the case and that everyone would save time if appellant would simply plead (presumably guilty).

The second statement told the jury a defense attorney may have an obligation to present false testimony.

The third statement told the jury that, in the judge's opinion, very few defendants, over a forty-year period, had been found not guilty.

How can a jury of lay persons be expected to accord a criminal defendant the presumption of innocence and his right to a fair and impartial trial when the trial judge tells them:

1. the defendant was trying to make a plea bargain with the State and the delay in trying the case was due to his prolonging the negotiations (an innocent person would not agree to a plea bargain in the opinion of most lay persons)?

2. defense lawyers have no scruples against putting on false testimony if it would benefit their clients?

3. over forty years, very few defendants have been found not guilty in the courtroom in which appellant is being tried?

Appellant's constitutional right to be tried by an impartial tribunal is sacrosanct, regardless of the evidence against him. See Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437 (1927). The standard of review for errors of constitutional magnitude is set forth in Texas Rule of Appellate Procedure 44.2(a):

If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. (2)

Accordingly, because I am convinced the comments of the trial court, taken together, denied appellant his constitutional right to a fair trial, and thus, in the aggregate, amounted to constitutional error, I join the opinion of the majority reversing the judgment of the court of appeals and remanding the cause to that court for further proceedings.



1. Evidence of plea discussions is not admissible. Tex. R. Crim. Evid. 410.

2. See also, Chapman v. California,