I respectfully dissent. With judgments of the defendant's prior convictions for robbery and kidnapping (violent and potentially violent and coercive offenses) having been introduced into evidence, the honorable trial judge was of the opinion that the argument was a reasonable deduction from the evidence as sanctioned in Denison v. State, 651 S.W.2d 754 (Tex.Crim.App. 1983). The judge provided counsel the reason for his ruling with his mind focused on his legal rationale. He pronounced his ruling in valid terms of the law addressing the admissibility of evidence. Much like the judge's action in Marshall v. State, 104 Tex.Crim. 619,286 S.W. 214 (1926) and Hernandez v. State, 530 S.W.2d 563 (Tex.Crim.App. 1975), the comment was apparently inadvertent; it was not a product of a *Page 798
dispute with counsel or otherwise designed to prejudice the Appellant. Unfortunately, the legal terminology addressing the admissibility of evidence could be interpreted by the jury as a belief by the judge of a factual matter relevant to the penalty stage of trial.
To constitute reversible error, a comment by a court must be reasonably calculated to prejudice the defendant's rights.Smith v. State, 595 S.W.2d 120 (Tex.Crim.App. 1980). In the case at hand, the jury was instructed in the court's charge of the guilt/innocent stage as follows:
You are instructed that you are not to allow yourselves to be influenced in any degree whatsoever by what you may think or surmise the opinion of the Court to be. The Court has no right by any word or act to indicate any opinion respecting any matter of fact involved in this case, nor to indicate any desire respecting its outcome. The Court has not intended to express any opinion upon any matter of act in this case, and if you have observed anything which you have or may interpret as the Court's opinion upon any matter of fact in this case, you must wholly disregard it.
In both the guilt/innocent stage and penalty stage, the trial court instructed the jury in its charge that:
You are the exclusive judges of the facts proved and credibility of the witnesses, and of the weight to be given to their testimony, but you are bound to receive the law from the Court, which is herein given you, and be governed thereby.
It is generally presumed, although the presumption is rebuttable, that a jury follows the instructions given by the trial judge, in the manner presented. Cobarrubio v.State, 675 S.W.2d 749 (Tex.Crim.App. 1983); Rose v.State, 752 S.W.2d 529 (Tex.Crim.App. 1987). It is recognized that modern juries are intelligent, diligent, conscientious, and able to accurately and assidously follow the plain instructions of the trial judge. Appellate courts are to presume they have done so. Johnson v. State, 774 S.W.2d 276 (Tex.App.-Beaumont 1989).
The apparent lack of calculated intent on the part of the trial judge to convey to the jury his opinion of the case, the instructions to the jury to disregard Chevallier v.State, 404 S.W.2d 36 (Tex.Crim.App. 1965), Cline v.State, 463 S.W.2d 441 (Tex.Crim.App. 1971) and the presumption that the jury followed the trial court's instructions cure any error. In view of the prior convictions of the Appellant of forceful or violent crimes, the seventy-three-year sentence does not, per se, indicate that the jury was influenced by the trial judge's remarks. The presumption prevails, and Tex.R.App.P. 81(b)(2) is satisfied.