IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD–0659–10
PEDRO ARIEL ZARATE LUCIO, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY
M EYERS, J., filed a dissenting opinion.
DISSENTING OPINION
The problem with the majority opinion is that it fails to distinguish between
supplemental instructions given during the guilt and sentencing phases of trial. During the
sentencing portion of trial, both sides are less restrained by the Rules of Evidence and
may present testimony and evidence that was likely barred during the guilt phase. For
instance, the State may introduce evidence of the defendant’s prior bad acts or crimes that
did not result in a conviction, as well as additional details of the offense at hand. TEX.
Lucio dissent – Page 2
CRIM. PROC. CODE art. 37.07, § 3(a)(1). The differing standard allows the jury to
consider factors to mitigate or enhance punishment within the statutory range based on
the circumstances of the crime.
During the punishment phase, the court may allow evidence as to any matter that
the court deems relevant to sentencing. Id. However, once the introduction of evidence
has been concluded, the rules and order of procedure governing the jury assessment are
the same as during the guilt portion of trial. Id. at § 3(b). In both situations, the court
should deliver the charge of the court to the jury without expressing any opinion about the
weight of the evidence. TEX. CRIM. PROC. CODE art. 36.14. As the majority notes, the
trial court’s answer to a jury question must comply with the same rules that govern the
initial jury charge since the answer is essentially a supplemental jury instruction. Maj. op.
at 4. Therefore, the court must remain neutral and not express an opinion as to the weight
of the evidence when responding to a jury question.
Here, the trial court’s instructions indicate to the jury that it is permissible to focus
on the fact that the defendant’s family did not testify at punishment. In doing so, the judge
expressed his opinion as to the weight of the evidence in violation of article 36.14. The
judge properly directed the jurors to the jury charge when they asked whether there were
limitations on who can speak as a character witness. However, the judge implicitly
encouraged the jury to concentrate on evidence outside of the record when the court
answered the jury’s next question of whether the defendant’s family was permitted to
Lucio dissent – Page 3
testify during the sentencing phase. The judge should again have instructed the jury to
concentrate on the evidence presented and the instructions given.
The majority compares this case to Green v. State, 912 S.W.2d 189 (Tex. Crim.
App. 1995), where the trial court responded during the punishment phase to the jury’s
question about the content of testimony during trial. This Court held that the trial court
did not improperly comment on the weight of the evidence when it directly answered the
jury’s question with a response based on the record. Id. at 193. But here, the jury’s
question indicated that it was focused on why the defendant’s family did not testify on his
behalf. The jurors did not ask a specific question derived from the record, and the trial
court exceeded its authority by answering in a way that confirmed or denied the jury’s
suspicions as to why the family did not testify.
The majority concludes that the rule prohibiting the court from singling out
evidence “does not necessarily apply” when the court responds to a question identified by
the jury. Maj. op. at 7. Not only does this conclusion provide little guidance to the lower
courts, but in the instant case it fails to take into account the potential damage caused by
the court’s answer. We cannot ignore the fact that a statement from a judge during the
sentencing phase may have a profound effect on the level of punishment assessed.
An improper instruction during the guilt portion certainly may impact whether the
jury votes guilty or not guilty, but the level of harm is more easily determined based on an
analysis of the limited range of evidence allowed during the guilt phase of trial. The range
Lucio dissent – Page 4
of evidence presented during the sentencing phase is so wide open that an instruction that
enters new evidence can shift the punishment assessed, but we cannot tell to what degree.
In the instant case, we do not know if the jury felt sorry for Appellant since his family did
not testify, or if they believed they did not testify because Appellant is a bad person. We
will never know what the jury focused on, therefore we cannot assess the harm.
Here and in other cases, an improper instruction can drastically affect the amount
of a fine, the jail time assessed, or whether the death penalty is imposed. Since the level
of harm caused by an improper instruction is difficult to determine, the response to a jury
question must be neutral enough to withstand the same scrutiny as the initial jury charge.
The court’s response here was not neutral and improperly commented on the weight of a
matter outside the scope of the evidence. Based on the difficultly in determining the harm
caused by the trial court’s response, I would reverse the decision by the court of appeals
and remand to the trial court for a new punishment hearing.
Meyers, J.
Filed: November 9, 2011
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