In The
Court of Appeals
For The
First District of Texas
NO. 01-00-01207-CR
____________
ROBIN RONNIE JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 9,950,873
O P I N I O N
A jury found appellant, Robin Ronnie Jones, guilty of the misdemeanor offense of driving while intoxicated, and the trial court assessed punishment at 180 days in jail, probated for one year. In four points of error, appellant contends that the trial court erred by giving a jury instruction that improperly shifted the burden of proof and by preventing appellant from testifying to certain facts. We affirm.
Facts
On November 19, 1999, at approximately 1:00 a.m., Harris County Precinct Four Deputy Constable Roland Dahlin observed appellant driving a pickup truck at 42 miles per hour in a 35-miles-per-hour zone. Deputy Dahlin testified that he stopped appellant after appellant’s truck had crossed the center line three times. Dahlin further testified that he saw John Taylor, a passenger in appellant’s vehicle, place an open container of beer in the back of the truck and that, as he approached the driver’s side of the truck, he smelled a strong odor of alcohol on appellant’s breath. Deputy Dahlin testified that appellant’s eyes were bloodshot and that appellant admitted that he had been drinking.
Deputy Dahlin radioed for an officer trained to perform field-sobriety tests. Approximately 20 minutes later, Deputy David Nolan arrived, asked appellant to perform several field-sobriety tests, and concluded that appellant was intoxicated. After appellant was arrested, he gave a breath sample which, on analysis, revealed a breath-alcohol concentration of 0.195 grams of alcohol per 210 liters of breath.
Improper Jury Instruction
In his first point of error, appellant contends that the application paragraph of the jury instruction pertaining to article 38.23 of the Code of Criminal Procedure improperly shifted the burden of proof to him.
The application paragraph that was given contained the following language:
Therefore, bearing in mind the foregoing instruction, if you believe from the evidence beyond a reasonable doubt that Deputy Roland Dahlin did not acquire reasonable suspicion to believe that a traffic offense was committed by the defendant, namely, that he observed the defendant speed, if he did, or fail to drive his vehicle in a single marked lane, if he did, or both, or if you have a reasonable doubt thereof, then you shall not consider the evidence obtained by the officer as a result of the arrest of the defendant.
(Emphasis added).
We have held that a similar jury charge was error because it incorrectly placed the burden of proof on the defendant. Coleman v. State, 45 S.W.3d 175, 181 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d), overruled on other grounds by, Johnson v. State, No. 01-01-01043-CR, slip op. at 9 (Tex. App.—Houston [1st Dist.] Dec. 12, 2000, no pet. h.) (designated for publication). As in Coleman, the proper instruction would have stated that if the jury believed from the evidence beyond a reasonable doubt that the peace officer had lawfully obtained the evidence, the jury could consider the evidence, but if the jury had a reasonable doubt that the peace officer had lawfully obtained the evidence, then the jury could not consider it. Id.
A party must either object to an allegedly improper charge or request a different charge. Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996). Here, appellant never objected that the language of the application paragraph shifted the burden of proof. Instead, he objected to the reference to speeding and to failing to drive in a single marked lane, rather than a simple reference to the violation of traffic laws, as a basis for reasonable suspicion. Therefore, the objection that he raises on appeal is on a ground that he did not raise at trial. See Taylor v. State, 7 S.W.3d 732, 735 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
Appellant did, however, submit a proposed jury charge containing the correct standard for burden of proof. Generally, if the defendant requests a special charge, no objection is required to preserve error, even if the trial court modifies the charge and does not respond to all of the defendant’s objections or requested charges. Tex. Code Crim. Proc. Ann. art. 36.15 (Vernon Supp. 2003); Vasquez, 919 S.W.2d at 435. However, submission of an entire jury charge without calling the trial court’s attention to a specific omission or request is insufficient to preserve error. Arana v. State, 1 S.W.3d 824, 828 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).
In Arana, the defendant submitted an entire proposed jury charge, which included an instruction that the jury could not consider the defendant’s election not to testify, before the charge conference. Id. at 827. The State also submitted a proposed charge omitting this instruction, and the court used the State’s charge as its working draft in formulating the final charge. Id. Although the defendant objected to certain defects in the final charge, not including the above instruction, the remaining differences between the defendant’s charge and the State’s charge were not discussed or marked as refused. Id. The defendant then raised for the first time on appeal the ground that the jury charge omitted the instruction on the defendant’s election not to testify. Id. The Arana court held that, although article 36.15 provides that requested instructions will not be deemed waived if the trial court revises a charge without responding to them, this article pertains to specific provisions that the defendant presents in a manner that fairly apprises the trial court that the defendant is proposing something different from or in addition to the matter that is under consideration. See id. at 828. Because the defendant’s omitted instructions were buried within his proposed jury charge and were not among the matters he raised during the charge conference, he did not properly object. See id.
The holding in Arana is applicable here. Appellant submitted his own proposed charge containing the correct standard for burden of proof and made certain specific objections to the final charge, but failed to object to the shifting of the burden of proof in the final charge. The trial court modified the final charge, taking into consideration only the arguments and objections that appellant raised at the charge conference. Because appellant did not apprise the trial court that the proposed burden-of-proof standard was different from the standard contained in the proposed charge, appellant failed to preserve error.
Because appellant did not properly object, we must apply a different standard of review from the standard applicable if error had been preserved. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Under Almanza, appellant must show egregious harm resulting from the wording of the instruction. See id. Here, Deputy Dahlin offered testimony showing that he had a reasonable suspicion to stop appellant for both speeding and failing to maintain a single lane of traffic. Although appellant disputed the speed at which he was traveling, and appellant’s witness denied that appellant failed to maintain a single lane of traffic, the jury could have given more credibility to Deputy Dahlin’s testimony, considering that both appellant and his witness had been drinking. Appellant has not met his burden of showing egregious harm.
We overrule appellant’s first point of error.
Excluded Testimony
In his second, third, and fourth points of error, appellant contends that the trial court erred in excluding testimony from appellant about an altercation that took place between passengers in his car and occupants of another vehicle shortly before Deputy Dahlin stopped him. Two deputies had testified for the State about the incident, and appellant’s passenger, John Taylor, had testified about the matter for the defense. Appellant was about to testify to the details of the altercation when the State objected based on relevance. The trial court sustained the objection.
Appellant contends that, before ruling, the trial court improperly commented on the potential testimony in violation of article 38.05 of the Code of Criminal Procedure by stating in front of the jury that “this whole incident is irrelevant.” See Tex. Code Crim. Proc. Ann. Art. 38.05 (Vernon Supp. 2003). Moreover, he contends, in sustaining the State’s objection, the trial court interfered with his trial counsel’s effectiveness and denied him the right to testify under article 38.08 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. Art. 38.08 (Vernon Supp. 2003).
A. Comment on the Evidence
Appellant asserts in his second point of error that the trial court “committed reversible error by commenting upon and/or giving his opinion of the evidence being offered by appellant, in violation of article 38.05 of the Texas Code of Criminal Procedure.”
Appellant had presented evidence to impeach Deputy Dahlin’s testimony that Deputy Dahlin followed appellant for two and a half miles from an intersection where the altercation took place. Both Deputy Nolan and appellant’s passenger, John Taylor, had testified that the altercation took place at an intersection a half mile from where Deputy Dahlin stopped appellant.
The following exchange then occurred as appellant’s counsel questioned appellant:
Defense Counsel: Okay. Let me ask you this. Between the point that they passed you and you all pulled up behind them, had you all talked about any - well, “Those guys are real ‘yahoos.’ We’re going to - we’re going to get up there and we’re going to - ”
Appellant: Well, we may have been - we may have said something to the effect that, “I can’t believe they did this.” But, we didn’t -
Prosecutor: Well, we would object at this point to relevance, Judge.
Trial Court: Well, do you have anything to add or to change from the prior witness’ testimony about this incident?
Defense Counsel: Well, Judge, I think that we’re entitled to give our own testimony. We don’t have to rely on any other witness. And, that’s all that I’m trying to do.
Trial Court: Did you hear the question that I asked?
Defense Counsel: Sir?
Trial Court: Does he have anything to change from the other witness as to this incident? I mean, you were here and you heard the other witness tell the story. [Addressing appellant, the witness:] Do you have anything to add or to subtract from that?
Appellant: No sir, I don’t.
Trial Court: Well, this whole incident is irrelevant.
Defense Counsel: Well, Judge, I take issue with you on that. And, I - I - I object to you making that comment here in front of the jury. I believe it- it - it sends a message to the jury regarding your opinion in this case.
Trial Court: Well, no, no, no. It’s just hearing this whole story, again, and in such detail, right now. I don’t want to hear the whole story in detail.
Defense Counsel: Well, it’s part of the incident, Judge. That’s the problem. I mean, the incident was first brought up by the Prosecutor with the police officer. And, that’s why we - we need to bring it up. And, these people need to hear about what my client’s frame of mind was at the time, your Honor.
Trial Court: Well, the incident is the DWI. Right?
Defense Counsel: Well -
Trial Court: And, which happened later. Right?
Defense Counsel: Well, I understand what you’re saying. But, I need to bring out what happened. And, that’s what I’m trying to do through my witness. And, I think that the jury is entitled to hear, through my witness, each one of them and individually - as to what happened. That’s all that I’m trying to do.
Trial Court: Well, State, do you have an objection?
Prosecutor: Yes, your Honor. The objection is as to relevance as to the DWI.
Trial Court: Well, I agree.
Defense Counsel: And, again, I object to the Court’s comments in front of the jury with regard to - to that - to that. I think it sends an improper message to the jury with regards to the Defense’s theory in this case.
Trial Court: Well, I didn’t know that we were going to talk about it this long. If so, I would have taken the jury out. But, we haven’t. So, let’s move on.
Defense Counsel: Well, am I prohibited from going into the - into the - into the -
Trial Court: Well, I’ve sustained his objection.
Defense Counsel: So, where do I pick it up, Judge?
Trial Court: Well, why don’t you ask him the same question that I asked him, and see if he has anything to add. And, then, let’s - let’s - let’s move on.
Defense Counsel: Well, I would object to being - to being -
Trial Court: After the incident, you’re driving up on the road and continuing on, and going in whatever direction that you’re going.
Defense Counsel: And, I would object to being required to do that, your Honor. But, since the Court has instructed me to do that, I will do that.
Trial Court: All right. Proceed.
(Emphasis added)
When the State objected to further evidence of the altercation, article 38.05 dictated that “[i]n ruling upon the admissibility of evidence, the judge [should] not discuss or comment upon . . . its bearing in the case, but [should] simply decide whether or not it is admissible . . . ” See Tex. Code Crim. Proc. Ann. Art. 38.05. The trial court, therefore, erred by discussing or commenting upon the proposed evidence’s “bearing in the case” when it stated, “Well, this whole incident is irrelevant,” and “Well, I agree [with the State’s objection].”
For a trial court’s erroneous comment to constitute reversible error under article 38.05, the comment must be reasonably calculated to benefit the State or prejudice the defendant’s rights. Becknell v. State, 720 S.W.2d 526, 531 (Tex. Crim. App. 1986). The appellate court makes this determination by examining whether the trial court’s statement was material to the case. Clark v. State 878 S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.) An issue is material if the jury has the same issue before it. Id. A trial court improperly comments on the weight of the evidence if it makes a statement that implies approval of the State’s argument, indicates disbelief in the defense’s position, or diminishes the credibility of the defense’s approach to the case. Id.
The trial court did not err in sustaining the State’s relevancy objection. The details of an earlier altercation (which Deputy Dahlin did not see) were not relevant to the issues before the jury, i.e., whether Deputy Dahlin later saw and developed reasonable suspicion to stop appellant for speeding or failing to maintain a single lane and to conclude that appellant was intoxicated. The trial court’s comments were erroneous, but harmless, and did not imply approval of the State’s argument, express disbelief in appellant’s position, or diminish the credibility of appellant’s approach. See id. at 226. Thus, the record does not show that the comment rose to a level that was calculated to benefit the State or to prejudice appellant.
We overrule appellant’s second point of error.
B. Ineffective Assistance of Counsel
In his third point of error, appellant contends that the trial court denied him his right to effective assistance of counsel by limiting his direct-examination testimony about the altercation, thereby interfering with counsel’s ability to make independent decisions about how to conduct his defense. The right to effective counsel includes the right of defense counsel to make independent decisions regarding defense strategy. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). When the trial court’s improper actions prevent defense counsel from performing his job, a claim of ineffective assistance of counsel arises. Jackson v. State, 992 S.W.2d 469, 476 (Tex. Crim. App. 1999). However, the trial court’s actions do not deprive a defendant of effective assistance of counsel “unless those actions prevent counsel from doing something he had the legal right to do.” Id. at 476. Because the trial court did not err in ruling that the earlier altercation was not relevant, appellant’s trial counsel had no right to continue to question appellant on the subject. The trial court, therefore, did not deny appellant his right to effective assistance of counsel.
We overrule appellant’s third point of error.
C. Right to Testify
In his fourth point of error, appellant contends that the trial court erred in denying him his right under article 38.08 of the Code of Criminal Procedure to testify in his own behalf by preventing his testimony about the earlier altercation, which testimony had previously been introduced before the jury by the State.
A defendant who testifies in his own defense is subject to the same rules governing direct and cross-examination as other witnesses, including rules of relevancy. Alexander v. State, 740 S.W.2d 749, 763 (Tex. Crim. App. 1987). We have previously found, in point of error two, that the trial court did not err in ruling that the details of the earlier altercation were irrelevant to the later events of appellant’s alleged traffic violations and driving while intoxicated. Additionally, the colloquy between the trial court and counsel, detailed in point of error two, appeared to focus on the State’s relevancy objection. Appellant did not object at trial that he was being deprived of the right to testify under article 38.08. Hence, the issue he here asserts was not urged at trial and is not preserved for review. Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990), overruled on other grounds by, Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991).
We overrule appellant’s fourth point of error.
Conclusion
We affirm the judgment of the trial court.
Lee Duggan, Jr.
/s/ Justice
Panel consists of Chief Justice Radack and Justices Hedges and Duggan.
Former Chief Justice Michael H. Schneider, who retired from the Court before issuance of this opinion, did not participate in this decision.
Do not publish. Tex. R. App. P. 47.2(b).