In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-07-00049-CR
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FLOYD CARROLL WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 06-0427X
Before Morriss, C.J., Moseley and Cornelius,* JJ.
Memorandum Opinion by Justice Cornelius
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*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment
MEMORANDUM OPINION
Floyd Carroll Wilson was indicted for the murder of his sister, Beverly McCormick. Wilson pleaded guilty and elected to have a jury set his punishment. The jury found Wilson guilty and assessed his punishment at ninety-nine years' confinement.
Wilson does not challenge the sufficiency of the evidence. He raises only one issue on appeal, in which he contends the trial court committed reversible error by making certain comments to the venirepanel before the voir-dire examination. We overrule this contention and affirm the trial court's judgment.
Wilson complains of only the trial court's comment that an appellate court does not review whether it agrees with the jury's verdict. It is necessary, however, that we relate the trial court's comment in this regard in the context in which it was made, in order to show the trial court's intent in making the comment, as well as to determine what effect the comment likely had on the veniremembers. Among other comments not pertinent to this appeal, the trial court made the following statement to the veniremembers:
That means Ms. Skinner, my court reporter - - and I have to stop talking because she has to take down everything that I say, that the lawyers say, that the witnesses say, anything that happens in the trial, and because this is part of the trial if you have to stand up and give information back - - like if a lawyer says, Mrs. Smith, you said you were acquainted with this witness and how do you know this witness? Can you still be impartial? If you have to stand up and say something like that, Ms. Skinner has to get it into the record. That is because at the end of a trial if a case is appealed, it doesn't go to another court for another complete trial. Instead, Ms. Skinner and Ms. Griffis send the pleadings and file and the exhibits and Ms. Skinner's transcript of what happened in this trial, up to Texarkana to three judges. They sit together and the three of them read the record and determine whether or not I made an error in one of my rulings. They don't determine whether or not they agree with the jury verdict. Nobody may agree with the jury verdict, but that is not what they review. They review my rulings and cases are reversed when the three judges up there think the court, the judge, made an incorrect ruling. So, Ms. Skinner has to get everything that happens, including all my rulings, what I said, objections, etcetera, during the course of the trial, and during jury selection. At the end of that I will be asked to decide whether or not certain of you that indicated you knew someone or knew something about the case, whether or not you could be impartial jurors and that could be subject to review by the appellate court, so she has to get all of that into the record. Because it is a part of the trial of this case.
Wilson likens the trial court's comments to part of the trial court's charge to the jury, and argues that the portion about reviewing a verdict on appeal is incorrect and constituted fundamental error because it could have led the potential jurors to believe they could return an unfair verdict and/or assess a disproportionate punishment, and their actions in doing so would be immune from correction on appeal. We disagree with this argument for several reasons.
The comments related above are not part of the court's charge to the jury. The trial court's charge to the jury is copied in the record and appears to be without error. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). Wilson makes no attack on the correctness of the court's charge. The comments of the trial court in question here were given as part of the preliminary qualifying instructions to the venirepanel. The giving of admonitory instructions to the venirepanel before trial is within the discretion of the trial court. York v. State, 566 S.W.2d 936, 938 (Tex. Crim. App. [Panel Op.] 1978); Walker v. State, 440 S.W.2d 653, 658 (Tex. Crim. App. 1969). Comments on the evidence or other remarks by the trial court constitute reversible error only if they are reasonably calculated to benefit the State or prejudice the defendant's rights. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979); Davis v. State, 651 S.W.2d 787, 789 (Tex. Crim. App. 1983). The remarks challenged by Wilson are not of that character.
Wilson suggests that the jurors in this case may have been led by the trial court's preliminary remarks to believe they were free to render an unfair verdict or punishment, even though not justified by the facts, because their findings could not be overturned on appeal. For us to make that assumption would be to engage in the rankest sort of speculation completely unwarranted by the record. Wilson also suggests, because there was considerable mitigating evidence tending to show it was totally uncharacteristic for him to commit such a cruel and unprovoked crime of killing his sister in cold blood, the jurors probably assessed a disproportionate and excessive punishment because they thought it could not be overturned on appeal. We find no evidence that the jurors were motivated by such a corrupt purpose. Indeed, we presume the jurors obeyed the court's charge, which required them to base their findings solely on the evidence and the law. See Tex. Code Crim. Proc. Ann. art. 36.14; Schepps v. State, 432 S.W.2d 926, 931 (Tex. Crim. App. 1968). We find it more likely that the jurors based their ninety-nine-year punishment on the nature and circumstances of the extremely violent and unprovoked murder of Wilson's sister, not because of an erroneous conception of appellate law.
Further, considering the context in which the trial court's remarks were made, we find there was no error. The trial court was simply explaining to the venirepersons that, because the appellate court bases its decisions on whether the trial court made errors in its rulings, instead of simply deciding if it disagrees with the verdict, it is very important that the venirepersons speak clearly and audibly in answering the questions put to them so the court reporter can transcribe their answers and have a correct written record to send to the appellate court in case of an appeal. As concerns the trial court's comment that an appellate court does not review whether it disagrees with a jury's verdict, that statement is true. No appellate court is allowed to overturn a jury verdict because it disagrees with it, but only if the verdict is supported by no evidence or factually insufficient evidence. And we should not speculate that the potential jurors would read into the court's remark more than what it plainly said.
Even if the trial court's remark could be considered error, it certainly was not fundamental or structural error, and because Wilson made no objection whatsoever to the remark when it was made, he has not preserved error. See Thomas v. State, 533 S.W.2d 796 (Tex. Crim. App. 1976); Esquivel v. State, 506 S.W.2d 613, 616 (Tex. Crim. App. 1974); McCary v. State, 477 S.W.2d 624, 629 (Tex. Crim. App. 1972); Carew v. State, 471 S.W.2d 860, 862 (Tex. Crim. App. 1971); Hoang v. State, 997 S.W.2d 678, 683 (Tex. App.--Texarkana 1999, no pet.).
For the reasons stated, we affirm the judgment of the trial court.
William J. Cornelius
Justice*
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment
Date Submitted: June 22, 2007
Date Decided: July 19, 2007
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