TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. B-96-0839-S, HONORABLE JOHN E. SUTTON, JUDGE PRESIDING
Following the lunch recess on the first day of testimony (the second day of trial), and before the jury was returned to the courtroom, the court told appellant, "Mr. Garcia, you get found guilty in this case, I would thoroughly expect that this Jury will absolutely max you out. With all your priors being felonies . . . what you have been sentenced to before. I thoroughly expect them to max you out, particularly because they are irritated. You can see the irritation on their face yesterday afternoon [during voir dire]." Defense counsel was not present when the court made this statement, but the court repeated his comment when counsel returned. The court went on to criticize defense counsel's cross-examination of the State's witnesses and said he had seen jurors "rolling their eyes at this." The court also remarked, "[T]he Defense thinks you try a case by asking hours after hours of useless questions, which is what I feel like I have heard so far." The court then rebuked defense counsel for the second time regarding what the court believed was improper and unduly time-consuming questioning during voir dire. (1) The court concluded, "[E]ither you are the most brilliant attorney in ten years in my courtroom or you are not. And we can all have our own opinion of that one." With that, the jury was brought in and trial resumed.
The next morning, before the charge was read to the jury, defense counsel moved for a mistrial on the ground that "the trial Judge had an ex parte conversation with the Defendant, in the courtroom, outside of my presence, wherein it's my understanding that the Court advised my client that his attorney had asked useless questions on cross-examination, that I had alienated the Jury, and that I had caused an undue delay in this case." The court acknowledged making the described statements, and noted that it repeated them in counsel's presence. The court added that counsel had been tardy in returning from lunch. Then, observing that the jury had not heard the challenged comments, the court asked counsel to explain how appellant had been harmed. Counsel replied, "The only harm, Your Honor, is the fact that a statement was made by the trial Judge in this case about the effectiveness of Counsel." The court overruled the motion for mistrial after reiterating its previous criticisms of counsel's performance. The court added, "[I]n this county the Judges do take control of the courtroom. . . . I work under the premise that sometimes the only way we can get lawyers to start doing things right all the time is that they have to pay a price when they do it wrong."
Appellant first argues that the court's "action in criticizing Appellant's counsel and predicting a maximum sentence prior to the close of [the State's] case was so extreme as to lead a reasonable person on trial to believe he must testify to try to help his own case, and such action was therefore an indirect coercion of testimony in violation of Appellant's right to remain silent." Regardless of the injudicious nature of the court's remarks, the record reflects that defense counsel advised the court before testimony began and in the jury's presence that appellant intended to testify. Appellant acknowledges this, but says he might have changed his mind and not testified had the court not made the critical comments regarding counsel. While anything is possible, the record shows that appellant intended to testify from the beginning of trial and there is no evidence that appellant ever considered doing otherwise. The record simply does not support appellant's claim that the court's remarks forced him to testify. The first point of error is overruled.
Appellant elected before trial to have the jury assess punishment, but retained the right to change this election with the State's permission after the finding of guilt. See Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b) (West Supp. 1998). In his second point of error, appellant argues, "[P]unishment was a matter which could still come before the trial judge at the time when his comments were made. Although none of the comments directly indicated what result the trial court would reach, they were delivered in such a manner . . . as to suggest animosity on the part of the trial court. This had a chilling effect on Appellant's free choice to seek withdrawal of his election." Our reading of the record leads us to believe that any animosity displayed by the district court was directed toward counsel, not appellant himself. But in any case, there is no suggestion in the record that appellant ever considered or would have considered changing his punishment election.
Appellant further complains that the district court violated canons two (avoiding appearance of impropriety) and three (performing judicial duties impartially) of the Texas Code of Judicial Conduct. He argues, "[W]hen a judge takes it upon himself to publicly humiliate a lawyer in the context of a judicial proceeding . . . those principles [of fair play and substantial justice] are offended deeply, and the guarantee of due process is violated. Judicial conduct such as this taints the entire proceeding, not just one articulable point, and casts a pall on the judicial process."
This Court may reverse a criminal conviction only upon a showing of constitutional error that may have contributed to the conviction or punishment, or some other error that affected a substantial right of the defendant. See Tex. R. App. P. 44.2. Appellant has made no such showing. Whatever this Court may think of the district court's handling of appellant's trial, and in particular of the court's statements to and about defense counsel, we cannot say that the court committed reversible error. Point of error two is overruled.
The judgment of conviction is affirmed.
Bea Ann Smith, Justice
Before Justices Powers, Kidd and B. A. Smith
Affirmed
Filed: November 19, 1998
Do Not Publish
1. The day before, while the jury panel was not present, the court admonished counsel to discontinue voir dire questioning designed to elicit "unsworn testimony" from panel members.
n it's my understanding that the Court advised my client that his attorney had asked useless questions on cross-examination, that I had alienated the Jury, and that I had caused an undue delay in this case." The court acknowledged making the described statements, and noted that it repeated them in counsel's presence. The court added that counsel had been tardy in returning from lunch. Then, observing that the jury had not heard the challenged comments, the court asked counsel to explain how appellant had been harmed. Counsel replied, "The only harm, Your Honor, is the fact that a statement was made by the trial Judge in this case about the effectiveness of Counsel." The court overruled the motion for mistrial after reiterating its previous criticisms of counsel's performance. The court added, "[I]n this county the Judges do take control of the courtroom. . . . I work under the premise that sometimes the only way we can get lawyers to start doing things right all the time is that they have to pay a price when they do it wrong."
Appellant first argues that the court's "action in criticizing Appellant's counsel and predicting a maximum sentence prior to the close of [the State's] case was so extreme as to lead a reasonable person on trial to believe he must testify to try to help his own case, and such action was therefore an indirect coercion of testimony in violation of Appellant's right to remain silent." Regardless of the injudicio