NO. 12-06-00296-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CHARLES THOMAS STRIBLING, § APPEAL FROM THE 159TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Charles Thomas Stribling appeals his conviction for aggravated robbery. On appeal, Appellant argues that the trial court committed fundamental error by his comments to Appellant in the jury’s presence. We affirm.
Background
Appellant was charged by indictment with aggravated robbery, a first degree felony.1 Appellant pleaded “not guilty,” and the matter proceeded to a jury trial. At trial, Appellant testified and was admonished at least four times by the trial court regarding narrative responses to questions from his own counsel and from counsel for the State. On the second day of trial, during direct examination, and approximately thirty-one pages of the reporter’s record into Appellant’s testimony, the trial court instructed Appellant to “wait until a question is asked and you may answer it.” Approximately six pages later, the State objected to Appellant’s testimony as nonresponsive. After the trial court sustained the objection, Appellant stated that “[e]very time I tell the truth, I get objected to.” The trial court informed Appellant that he must “quit talking” when “a lawyer stands up.” Appellant stated that he understood the trial court. During its cross examination on the second day, the State twice asked Appellant to abide by the question and answer format.
On the third day of trial during cross examination, the State told Appellant that it wanted him “to have adequate time to answer the questions,” but that the cross examination would “go a lot faster and get over with if [Appellant] would just listen to [his] question and answer it.” The State asked the trial court to instruct Appellant to answer the question and then wait for the next question. In response, the trial court stated that “our rules of court and rules of procedure do not permit someone just to talk in a narrative fashion, just tell a story.” Specifically, the trial court informed Appellant that he was not “permitted just to tell a story, talk endlessly,” but that he had to respond “specifically to a question” and “give a specific answer.” Appellant stated that he understood. Four pages later in the reporter’s record, the trial court asked Appellant if he understood the last question posed by the State. After Appellant replied that he did, the trial court reminded him to “[a]nswer that question and that question only.”
Approximately six pages later, the following dialogue occurred between Appellant, Appellant’s counsel, State’s counsel, and the trial court:
Q: (by State’s counsel) You’re telling the jury that this man in this condition jumps up and just runs off down the road?
A: (by Appellant) I told the truth. I’m telling the truth today, and I said I would tell the truth.
Q: Sir —
A: Mr. Gore got up and ran.
Q: Mr. Stribling.
STATE’S COUNSEL: Your Honor, I object.
THE COURT: All right. Mr. Stribling, do you wish to continue to testify in this case, or do you want this case tried in your absence? Do you understand my question to you, sir?
THE WITNESS: Yes, sir.
THE COURT: You are being noncompliant, and I will not permit you to continue that, sir. You do not turn and talk to that jury unless you’re responding to a specific question with a specific answer, not a narrative, story-telling response. Do you understand me, sir?
THE WITNESS: Yes, I understand.
THE COURT: I will not warn you again, sir. Now, do you understand the last question?
THE WITNESS: Yes, I understand the last question. Yes, uh-huh.
THE COURT: Answer that question and that question only in a specific fashion, not a story-telling narrative. You may proceed.
STATE’S COUNSEL: Thank you, Your Honor.
DEFENSE COUNSEL: Could the question be reread, please?
THE COURT: Certainly, Counsel.
DEFENSE COUNSEL: Just so it’s clear in the record what the last question was.
THE COURT: I’ll be glad to oblige you, Counsel.
The jury found Appellant guilty of aggravated robbery as charged in the indictment and assessed Appellant’s punishment at twenty years of imprisonment. This appeal followed.
Trial Court’s Comments
In his sole issue, Appellant argues that the trial court committed fundamental error by his comments to Appellant in the jury’s presence.2 Specifically, Appellant argues that the trial court’s comments conveyed its opinion of the value of his testimony, were a comment on the weight of his testimony and its bearing on the case, and implied that both his testimony and demeanor were unacceptable. The State contends that Appellant has waived any error by his failure to object. However, even if Appellant did not waive error, the State argues, no error was committed and the trial court’s remarks did not pertain to the weight of the evidence.
Applicable Law
Article 38.05 of the Texas Code of Criminal Procedure states that, in ruling upon the admissibility of the evidence, the trial court shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). Further, the trial court shall not, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury its opinion of the case. Id. In other words, the trial court shall maintain an attitude of impartiality throughout the trial. Hoang v. State, 997 S.W.2d 678, 680 (Tex. App.–Texarkana 1999, no pet.). A trial court has broad discretion in maintaining control and expediting the trial. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). Rule 611 of the Texas Rules of Evidence provides that a trial court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. Tex. R. Evid. 611(a); Hoang, 997 S.W.2d at 681-82.
Analysis
Appellant contends that the trial court’s comments were fundamental error and that no objection was required to preserve such error. In Blue v. State, the court of criminal appeals held the trial court’s statement to the venire that he preferred the defendant plead guilty tainted the defendant’s presumption of innocence and was fundamental error. See Blue, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000). But Blue is distinguishable from the instant case.3 Here, the trial court warned Appellant repeatedly to conform to a question and answer format instead of responding to questions in a narrative, story-telling manner. The trial court also informed Appellant that his answers were “noncompliant” and that the trial would be conducted in his absence if he persisted. However, the court made no reference, either directly or indirectly, to Appellant’s guilt or innocence. Consequently, the court’s remarks were not a comment on the weight of Appellant’s evidence or testimony. See Martinez v. State, 147 S.W.3d 412, 420 (Tex. App.–Tyler 2004, pet. ref’d). Instead, the trial court was attempting to expedite and maintain control over the trial, and exercise reasonable control over the mode and order of Appellant’s testimony and the presentation of evidence. See Jasper, 61 S.W.3d at 421; Hoang, 997 S.W.2d at 681-82. Accordingly, we conclude that the trial court’s comments, if erroneous, did not constitute fundamental error.
Appellant points out that Rule 103(d) of the Texas Rules of Evidence provides that 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.” Tex. R. Evid. 103(d). We note that the aim of rule 103(d) is judicial efficiency in determining the admissibility of evidence and preventing the suggestion of inadmissible evidence to the jury. See Tex. R. Evid. 103(d); Martinez, 147 S.W.3d at 420. In this case, the trial court did not rule on any evidence, admissible or otherwise.
Because the error complained of by Appellant was not fundamental, Appellant was not excused from the requirement that he object to preserve the error, if any, for appellate review. Appellant concedes that he did not object to the trial court’s comments. Therefore, he has waived the issue on appeal. See Tex. R. App. P. 33.1(a)(1)(A).4 Appellant’s sole issue is overruled.
Disposition
The judgment of the trial court is affirmed.
SAM GRIFFITH
Justice
Opinion delivered July 18, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 See Tex. Penal Code Ann. § 29.03(a), (b) (Vernon 2003).
2 Appellant acknowledges that he did not object to the trial court’s comments.
3 Since there is no majority opinion in Blue, it is not binding precedent. See Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d) (citing Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex. Crim. App. 1999)). Even if it were, it would not affect our analysis. As Judge Keasler’s concurring opinion in Blue indicates, the trial court’s remarks in Blue reasonably could be interpreted as a predetermination of Blue’s guilt, thus implicating the right to an impartial trial court. See Blue, 41 S.W.3d at 135-139 (Keasler, J., concurring). The trial court’s comments in the instant case are not of this nature. Therefore, Blue would not apply to the facts of this case, even it if were binding precedent. See Jasper, 61 S.W.3d at 420-22; Blue, 41 S.W.3d at 129-133; Murchison, 93 S.W.3d at 262.
4 As a prerequisite to presenting a complaint for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A).