Affirmed; Majority and Concurring Opinions filed November 4, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00958-CR
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OPAL KATE MILES A/K/A KATE O. MILES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 913,682
M A J O R I T Y O P I N I O N
Appellant Opal Kate Miles, a/k/a Kate O. Miles, brings this appeal from her conviction of aggravated theft of between $20,000 and $100,000. The jury found appellant guilty, sentencing her to nine years in prison and ordering her to pay a fine of $2,500. The sole issue in this case is whether the trial court erred by sustaining an objection that resulted in the deprivation of her presumption of innocence. We affirm.
Background
From 1997 until the year 2000, appellant worked as the ‘Foundation Accountant’ for the Hope Foundation for Retarded Children, a non-profit organization located in Friendswood, Texas. The Hope Foundation, founded in 1967, serves as a private, lower-cost alternative to high-priced or state institutions. In the indictment, the grand jury alleged that appellant, over a period of almost two years, stole an amount between $20,000 and $100,000. At the trial on the merits, the State presented evidence that appellant abused her position of trust with the Foundation by, among other things, writing herself checks that were not actual reimbursements, as appellant claimed. During appellant’s closing argument, the following exchange took place:
Appellant: One thing I do want to remind you of at this time is that there is a presumption of innocence throughout the trial. At this point in time, by law, my client is presumed to be innocent. And that –
The State: Judge, I’m going to object to that. Not after the trial’s over, I wouldn’t think. That’s the presumption before the trial starts.
The Court: Sustained.
Appellant: Well, this jury has not rendered its verdict. And until you render verdict, that presumption of innocence, I render to you, is in effect.
The State: I object to that as not a proper statement of the law.
The Court: Sustained. Let’s move on.
It is this exchange that serves as the basis of appellant’s only point of error.
Discussion
Appellant argues that the court committed reversible constitutional error by sustaining the State’s objection, thus depriving her of her right to be presumed innocent until proven guilty.
All criminal defendants are presumed innocent until proven guilty beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2004). This presumption lasts through the closing arguments, continuing until the jury retires to the jury room for its deliberation. Massey v. State, 226 S.W.2d 856, 860 (Tex. Crim. App. 1950); McGrew v. State, 143 S.W.2d 946, 946-47 (Tex. Crim. App. 1940).
A harm analysis is proper when a trial court commits error. Hawkins v. State, 135 S.W.3d 72, 76 (Tex. Crim. App. 2004). A trial court commits error when it makes a mistake or violates a rule or statute. Id. The appellate court should examine the origin of the rule or statute violated to determine whether the error is constitutional in nature; if it is, Rule 44.2(a) of the Texas Rules of Appellate Procedure applies. Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998); Gray v. State, 133 S.W.3d 281, 284-85 (Tex. App.—Corpus Christi 2004, no pet. h.). Rule 44.2(a) requires reversal in cases in which constitutional error is committed “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Tex. R. App. P. 44.2(a).
In this case, the trial court committed error when it sustained the State’s objection regarding the presumption of innocence. According to the precedent laid out in McGrew and later followed by Massey, the presumption of innocence does not end when the presentation of evidence closes; instead, the presumption remains until the jury enters the jury room to deliberate. Massey, 226 S.W.2d at 860; McGrew, 143 S.W.2d at 947.
We must evaluate whether the court, in sustaining the objection, committed constitutional error. Even though the presumption of innocence is guaranteed by a Texas statute, the statute itself arises from a constitutional guarantee, that of a fair and impartial trial. See U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon 2004); Estelle v. Williams, 425 U.S. 501, 503 (1976) (“[t]he presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice”); see also Oliver v. State, 999 S.W.2d 596, 599 n.3 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). By twice allowing the jury to hear an incorrect statement of the law, i.e., that the presumption of innocence does not exist past the close of the presentation of evidence, the court violated a rule stemming from a constitutional right and thus committed constitutional error.
Under Rule 44.2(a), we must determine whether, beyond a reasonable doubt, the error contributed to the appellant’s conviction. In Will v. State, the trial court made an incorrect statement to the jury regarding the presumption of innocence after the close of the State’s case and during the defense counsel’s opening statement. 794 S.W.2d 948, 950 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). The First Court of Appeals held that any error was either waived by failure to object or, in the alternative, cured by the charge to the jury, which stated that “‘[a]ll persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.’” Id. at 951.
Citing Will, the State submits that appellant waived any error by failing to object. Id. However, in Blue v. State, the First Court of Appeals determined that constitutional error had been committed when the judge “imparted information to the venire that tainted the presumption of innocence, adversely affecting appellant’s right to a fair trial.” 64 S.W.3d 672, 673 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). The First Court had originally affirmed the trial court in an en banc opinion, citing the defendant’s failure to object to the statements as waiver of error. Blue v. State, 983 S.W.2d 811 (Tex. App.—Houston [1st Dist.] 1998) (en banc), rev’d, 41 S.W.3d 129 (Tex. Crim. App. 2000). The Court of Criminal Appeals then reversed the First Court, ruling that the failure to object did not amount to a waiver of error since the trial judge’s comments were “fundamental error of Constitutional dimension” and thus required no objection. Blue v. State, 41 S.W.3d at 132-33 (Tex. Crim. App. 2000) (en banc). On remand, applying Rule 44.2, the First Court found that it could not say beyond a reasonable doubt that the error of the trial court had not contributed to the conviction. 64 S.W.3d at 673. Here, the mere sustaining of the State’s objections by the trial court did not approach the extensive and egregious comments made by the trial court in the Blue cases.[1]
At trial, the State presented testimony by, among others, an independent auditor of the Foundation’s accounts, Kathy Smith. Smith testified that appellant kept the accounts in such a way that documents or records such as payroll reports, deposit information, or petty cash information were inexplicably deleted, missing, or altered. Furthermore, the auditor testified that appellant, as bookkeeper, mingled funds in various accounts and failed to maintain proper internal controls designed to insure safety and to prevent fraud. The auditor also found irregularities in the way appellant reimbursed herself for supposed grocery purchases or deducted (or failed to deduct) her social security, health insurance, and payroll taxes. Smith estimated that appellant had misappropriated between fifty-five and sixty thousand dollars.
Before closing arguments began, the trial court charged the jury. Included in the jury charge was the following:
All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that she has been arrested, confined, or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at her trial. The law does not require a defendant to prove her innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case.
Although Will is not controlling,[2] we do find it instructive. 794 S.W.2d at 950. Any harm from the court’s error with regard to the presumption of innocence would have been lessened, if not altogether erased, both by the charge and by the presumption that the jury followed the instructions in the jury charge. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003); Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim .App.1998). Furthermore, although by law the presumption of innocence carries into the jury room, it is continually rebutted and eroded throughout the trial by the presentation of contrary evidence by the State. While jurors must be impartial deliberators, that requirement does not necessarily mean that they will enter the jury room without some sense or opinion of the defendant’s guilt or innocence. As Justice Frankfurter pointed out, and as noted by Justice Hudson in Oliver, we “should not be ignorant as judges of what we know as men.” Watts v. Indiana, 388 U.S. 49, 52 (1949); Oliver, 999 S.W.2d at 599.
Taking into account both the evidence presented against the appellant and the fact that the jury had already been charged as to the presumption of innocence, we can say beyond a reasonable doubt that the error committed by the trial court did not contribute to the appellant’s conviction. We therefore affirm the judgment of the trial court.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Majority and Concurring Opinions filed November 4, 2004.
Panel consists of Chief Justice Hedges and Justices Fowler and Hudson. (Hudson, J. Concurring)
Publish — Tex. R. App. P. 47.2(b).
[1] Among the trial judge’s comments concerning the defendant’s decision not to testify were the following:
Because there are many reasons why defendants do not testify and I have seen many that have nothing to do with their guilt or innocence....
It’s like I tell all the juries and I get Sister Teresa and I represent her for mass murder. And she is guilty as driven snow and the jury doesn't know that but the defendant's attorney knows it because she admitted it privately. What am I going to do; I am going to put Sister Teresa on the stand because nobody thinks she would tell a lie. She looks like she would be a very honest person and I can put her on the stand. I could have a defendant as innocent as can be and looks guilty and I wouldn't put her on the stand.
Blue v. State, 41 S.W.3d at 130.
The judge also told the jury that, “in the judge’s opinion, very few defendants, over a forty-year period, had been found not guilty.” Id. at 134 (Mansfield, J., concurring).
[2] The language in Will regarding the presumption of innocence is dicta. Furthermore, Will was decided before the legislature rewrote old Rule 81 to create new Rule 44.2, incorporating the constitutional/non-constitutional harm analysis and thus mirroring Federal Rule of Criminal Procedure 52(a). See Andrew Murr, Comment, Texas Attempts to See the Light Through its Own Muddied Jurisprudential Waters: the Difficulties in Choosing the Applicability of Constitutional Versus Non-Constitutional Reversible Error, 34 Tex. Tech L. Rev. 297 (2003).