NO. 1254-99







Keller, J., delivered a dissenting opinion in which McCORMICK, P.J., and WOMACK, J., joined.


Appellant concedes that he did not object to the trial judge's comments. He offers three reasons for exempting his situation from the usual requirement that a timely objection is necessary to preserve error: (1) an objection would be futile, (2) the prejudice created by the trial judge's remarks was incurable, and (3) the type of error involved is "fundamental" - requiring no objection to preserve it. The Court agrees with appellant's third reason and reverses the conviction. I disagree and would hold that appellant has forfeited his claim.

1. Futile

Appellant claims that an objection to the trial judge's comments would be futile because, if the trial judge agreed with the objection, he would not have made the comments to begin with. This reasoning, if followed, would relieve defendants of the obligation to object to any comment made by a trial judge. But our caselaw is to the contrary: a defendant must object to a trial judge's impermissible comment to preserve error on appeal. (1) Moreover, appellant's premise is wrong: trial judges often do respond with curative action to correct their own improper statements when one of the parties brings the impropriety to the trial judge's attention. (2)

A rationale similar to that articulated by appellant has been utilized by this Court in a different context: claims of ineffective assistance of counsel. We have observed that, when defense counsel commits errors at trial, a contemporaneous objection to such errors cannot be expected. (3) One would not expect defense counsel to recognize and object to his own errors as they occur. (4) And the defendant cannot object apart from counsel. Due to his lack of knowledge in legal procedure, a defendant may not even recognize his attorney's errors (after all, navigating the legal system is what the attorney is there for) and, in any event, the defendant should not have to risk alienating the attorney, who is the defendant's only advocate in the legal proceedings. (5)

The trial judge occupies a different position than a defendant's attorney. When the defendant's trial attorney makes a mistake, the defendant ordinarily has no advocate who can bring the mistake to the attorney's attention. But when the trial judge makes a mistake, the defendant does have an advocate - his attorney - who can bring that mistake to the trial judge's attention. Because the defendant has an advocate who can press his claims at trial, there is no reason to exempt him from the usual rules of procedural default. (6)

Perhaps the defendant is complaining that the remark is so blatantly improper or egregious that the trial judge is unlikely to listen to criticism. But there is no obvious relationship between how blatantly wrong or improper a remark is and how likely the judge is to realize the impropriety when brought to his attention. In fact, one could contend that milder remarks would be less likely to evoke a curative response because they are not as obviously wrong. Attempting to second-guess a trial judge's willingness to issue curative action based upon the egregiousness of the remark is a purely speculative endeavor. Instead of resorting to speculation, we should trust trial judges to act in accordance with their duties and give them the opportunity to cure mistakes resulting from their own improper remarks. In many cases they will issue, and in fact have issued, curative instructions that render appellate correction unnecessary.

2. Incurable

Appellant next contends that the error was incurable. He alleges that an instruction to disregard would not have cured the prejudice created by the trial judge's comments. In this case a timely objection could have prevented the trial judge from conveying most of the allegedly prejudicial information to the jury - increasing the likelihood that an instruction to disregard would have been effective.

But assuming arguendo that appellant is correct on this point, he is not relieved of his obligation to preserve error. In Cockrell v. State, we held that, in the case of improper prosecutorial argument, even incurable error must be preserved by a request for relief - even when a mistrial is the only relief that can adequately address the error, the defendant must move for a mistrial to complain on appeal. (7) That the comments came from the judge rather than the prosecutor does not render the error "more" incurable. Whether the incurable, improper comments come from the prosecuting attorney or the trial judge, the impact is the same: the only way to erase the prejudice flowing from the error is to declare a mistrial. But by failing to ask for a mistrial, the defendant forfeits the error.

And there are good reasons to require the request for a mistrial. If a mistrial occurs, then the parties save whatever time they would have expended for the rest of the trial and for the appeal that would have followed. In the present case, the time saved would have been significant: the trial judge could have dissolved the venire, called a new venire, and proceeded with a trial uninfected by the judge's comments.

3. Fundamental

Appellant contends that the trial judge's remarks constitute fundamental error under Texas Rule of Evidence 103(d). Citing Tumey v. Ohio (8) for the proposition that he has the right to an impartial judge, appellant also contends that the unpreserved error should be corrected due to the trial judge's unique position of authority. The Court cites both Rule 103(d) and Marin v. State (9) for the proposition that some errors require no objection to be preserved. The Court then emphasizes the heavy influence that a trial judge's comments may have on the course of a trial. Finally, the Court concludes that the comments violated the defendant's presumption of innocence and that such error is so fundamental that no objection is required to preserve it. In holding that the error need not be preserved, the Court relies upon federal circuit cases applying the federal "plain error" rule.

There are also two concurring opinions with varying reasons for reversing the trial court's judgment. Judge Keasler identifies the error as the denial of an impartial judge. He contends that this error is "structural," and that this particular structural error is the type of error that constitutes the violation of an absolute requirement. Judge Mansfield identifies the error as the denial of an "impartial tribunal" because of the prejudicial effect of the comments upon the jury. Judge Mansfield would find that the error is "fundamental" under Rule 103(d), and for that reason, immune from preservation of error requirements. However, Judge Mansfield does not contend that the error is "structural" but would remand the case to the Court of Appeals for a harm analysis. For several reasons, I disagree with the various opinions' arguments for overturning the trial court's judgment in this case.

First, I disagree with the Court's and Judge Mansfield's reliance upon Rule 103(d). Rule 103(d) does not apply outside the evidentiary context. Rule 103 is titled, "Rulings on Evidence" and is part of the Texas Rules of Evidence. Further, subsection (d) is not a grant of authority to take notice of fundamental errors, nor does that subsection impose any requirement that a court take notice of certain errors; it simply clarifies that the rules do not preclude taking notice of fundamental errors. (10) As Judge Keasler correctly observes, the rules committee stated that subsection (d) was not intended to change current law. (11)

Second, I disagree with the Court's reliance upon federal cases interpreting the federal plain error rule. Except as provided by Texas Code of Criminal Procedure, Article 36.19 in the context of the written jury charge, (12) Texas has no counterpart to the "plain error" rule found in the Federal Rules of Criminal Procedure. (13) The question, instead, is how the error is categorized under our prior caselaw. The controlling case is Marin v. State, which sets out three categories of error for preservation purposes: (1) absolute requirements and prohibitions, (2) rights that must be implemented by the system unless expressly waived, and (3) rights that must be implemented upon request (rights that are forfeited absent affirmative request). (14) The kind of error involved, not the egregiousness of a particular error, determines in Texas state court whether a party must preserve error by lodging an objection.

The comments here did not deprive the trial court of jurisdiction or involve some other absolute requirement or prohibition (i.e. Marin category one). Nor did the comments deprive the defendant of a waivable-only right (i.e. Marin category two). The danger the present comments posed is the possible prejudice they may have created in the minds of the jury. But as Cockrell illustrates, a party's failure to request relief will forfeit error even when the likely prejudicial effect on the jury is so great that a mistrial would be required to cure the harm. That is, erroneous comments that are likely to have a prejudicial impact on a jury's decision-making, from whatever source those comments are derived, are forfeitable errors (i.e. Marin category three).

Finally, I disagree with the assertion by both Judge Keasler and appellant that the present case involves the denial of an impartial judge as contemplated in Tumey. (15) In Tumey, the trial judge was deemed to lack impartiality because he had a financial interest in the outcome of the case. (19) This financial interest was systemic - under state and municipal laws, the trial judge was paid out of the fines he imposed but was not compensated if he imposed no fines. (20) The record in the present case reveals no such systemically created interest, financial or otherwise. The lack of a systemically created interest in the case has been cited as a reason to distinguish Tumey from cases involving allegedly improper judicial comments. (21) Absent a systemic source of bias, the record should show that the judge lacks impartiality in actual fact before an appellate court concludes that the defendant has been deprived of an impartial judge, and hence suffered structural error.

There is no showing in this record of any actual bias on the part of the trial judge. The two comments at issue here, while clearly improper, do not make such a showing. In the first comment, the trial judge expressed frustration with the defendant's inability to decide whether he wanted to plead guilty or go to trial and the resulting delay in the proceedings. The judge should not have expressed his frustrations to the venire because, in doing so, he alerted them to the presence of plea negotiations - a matter that ordinarily should not be revealed to the jury. (22) But the trial judge's statements do not necessarily reflect a pre-determination of the defendant's guilt. And, had the trial judge merely thought those comments to himself - and those thoughts were somehow discovered after trial - we would not be holding that the judge lacked impartiality. It is the judge's lack of discretion in sharing those thoughts with the jury that poses the problem. But that lack of discretion does not by itself show that the trial judge lacked impartiality. And the defendant has not alleged any other indication of bias - such as arbitrary or clearly erroneous adverse rulings.

As for the judge's comments regarding a defendant's failure to testify, it is obvious that those comments were a well-intentioned, though inartful, attempt to instruct the jury not to hold a defendant's failure to testify against him. The Supreme Court has recognized that a jury's natural tendency is to draw adverse inferences from a defendant's silence. (23) The trial judge's instruction here appears to be intended to reduce the likelihood that the jury in the present case would draw such inferences by explaining that even guilty people might testify. If the jury believed that guilty people never testified, then it might believe that a defendant is more likely to be guilty if he does not testify. Similarly, if the jury believed that a defense attorney would never put a defendant on the stand who has privately admitted his guilt, then the jury might believe that fact increases the likelihood that a non-testifying defendant is guilty - that the defendant may be declining to testify because his attorney would not put him on the stand due to a private admission of guilt.

The problem is that the judge's instruction is an inaccurate statement of the law. Attorneys are not allowed to suborn perjury. And the trial judge's instruction could have the unintended consequence of prejudicing a defendant who chooses to testify by raising in the minds of the jury the idea that the defendant may be lying on the stand. But a trial judge cannot know before trial whether a defendant will testify at trial. That is a decision the defendant is entitled to make during his case-in-chief (perhaps even in rebuttal). And there is no allegation here that the trial judge somehow anticipated that this particular defendant was planning to testify at trial and that he gave this instruction as a way of sabotaging the defendant's planned testimony. That the trial judge made mistakes in his comments to the jury - even serious ones - does not mean that he lacked impartiality.

The foregoing discussion does not mean that a criminal defendant has no remedy when his attorney fails to object to especially egregious comments from the trial judge. The defendant can advance a claim of ineffective assistance of counsel. The defense attorney is required to zealously defend his client, and that zealous representation may include pointing out to the trial judge any improper comments the trial judge makes - especially where the comments are so egregious that a mistrial would be required. Litigation of ineffective assistance claims allows a court to consider any trial strategy the defense attorney might have had and whether the defendant was actually prejudiced. So an avenue does exist for addressing objectionable comments to which no objection is made. As Justice Taft observed in his concurring opinion in the court below, the doctrine of ineffective assistance of counsel obviates the need to use a doctrine of fundamental error as a means to correct cases in which an accused was deprived of a fair trial. (24)

Because appellant failed to preserve error, I would affirm the judgment of the Court of Appeals.

DATE DELIVERED: December 13, 2000


1. Havard v. State, 800 S.W.2d 195, 211 (Tex. Crim. App. 1989); Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983); White v. State, 601 S.W.2d 364, 366 (Tex. Crim. App. 1980).

2. For example, see Fletcher v. State, 960 S.W.2d 694, 701 (Tex. App.-Tyler 1997); Hicks v. State, 901 S.W.2d 614, 617 (Tex. App.-San Antonio 1995); Silva v. State, 831 S.W.2d 819, 823-824 (Tex. App.-Corpus Christi 1992); Tennison v. State, 814 S.W.2d 484, 485-486 (Tex. App.-Waco 1991).

3. Robinson v. State, 16 S.W.3d 808, 809-810 (Tex. Crim. App. 2000).

4. We do not expect counsel to detect his own errors even after the fact. Id. at 812.

5. Id. 809-810.

6. See Henderson v. State, 962 S.W.2d 544, 558 (Tex. Crim. App. 1997)(ineffective assistance claim against an attorney who represented the defendant in prior proceedings but was not a member of the defense team at the time of trial was forfeited when not raised at trial).

7. 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).

8. 273 U.S. 510, 523 (1927)

9. 851 S.W.2d 275 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).

10. Rule 103(d) states:

In a criminal case, nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court.

(Emphasis added).

11. Notes and comments, Tex. R. Crim. Evid. 103 (West 1988).

12. See Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).

13. Judge Keasler cites Jimenez v. State, No. 1090-99, slip op. at 11, 2000 W.L. 1283732 at *3 (Tex. Crim. App., Sept. 13, 2000) as stating that the term that corresponds to "plain error" in Texas law is "fundamental error." While that statement may be true, that does not mean that a generic counterpart to the federal plain error rule exists in Texas. The wording of and comments to Rule 103(d) reveal that that rule is not a counterpart to the federal plain error rule. As explained below, our caselaw takes a different approach to defining "fundamental error" than taken by the federal courts with respect to "plain error." Our approach in the jury charge arena is similar to the federal plain error doctrine but is based upon a statute and applies only in the limited context of errors involving the jury charge.

14. 851 S.W.2d at 279.

15. Whether Tumey error constitutes the violation of an "absolute requirement" as Judge Keasler contends is an open question that I would leave for another day. I would note that an error is not immune from preservation requirements simply because it is "structural," and hence, immune from a harmless error analysis. At least two errors listed by the Supreme Court as "structural" - the right of self-representation at trial (16)

16. Id. at 469 (citing McKaskle v. Wiggins, 465 U.S. 168 (1984)). (17)

17. Id. at 469 (citing Waller v. Georgia, 467 U.S. 39 (1984)). - (18)

18. Cain v. Peters, 972 F.2d 748, 749-750 (7th Cir. 1992), cert. denied, 507 U.S. 930 (1993)(right to self-representation); see also Farretta v. California, 422 U.S. 806, 821 (1975)("Unless the accused has acquiesced in such representation," appointing counsel to conduct his defense does not give the accused the defense guaranteed by the Constitution")(emphasis added); Levine v. United States, 362 U.S. 610, 619 (1960)(right to public trial). The right to self representation is forfeitable primarily because the inconsistent right to counsel is one that must be affirmatively waived. Cain, 972 F.2d at 750; see also Marin, 851 S.W.2d at 279 (right to counsel is a waivable right). The right to a public trial is forfeitable where counsel is present throughout the proceedings and is aware of the public's exclusion from the proceedings. Levine, 362 U.S. at 619. - - " " "

19. Id. at 523.

20. Id.

21. United States v. Cooper, 51 M.J. 247, 250 (CAAF 1999); Kalapp v. State, 729 So.2d 987, 989 (Fla. 5 Dist. 1999).

22. See Tex. R. Evid. 408.

23. Carter v. Kentucky, 450 U.S. 288, 301 (1981); see also Mitchell v. United States, 526 U.S. 314, 332 (1999)(Scalia, J. dissenting).

24. Blue v. State, 983 S.W.2d 811, 815 (Tex. App.-Houston [1st Dist.] 1998)(Taft, J. concurring).