Charles Albert Jackson, Jr. v. The State of Texas--Appeal from 23rd District Court of Brazoria County

Affirmed and Memorandum Opinion filed March 6, 2003

Affirmed and Memorandum Opinion filed March 6, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-01239-CR

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CHARLES ALBERT JACKSON, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 149th District Court

Brazoria  County, Texas

Trial Court Cause No. 40,250

M E M O R A N D U M O P I N I O N

Appellant Charles Albert Jackson, Jr. appeals his sexual-assault conviction on the grounds that certain comments of the trial court to the jury deprived him of a fair trial. We affirm because the record does not show fundamental error.

I. Factual and Procedural Background

Appellant was charged by indictment with sexual assault. At the beginning of the jury-selection process, the trial court gave legal instructions to prospective jurors. Appellant claims the trial court committed fundamental error by making the comments that appear in bold:

Trial Court=s Remarks on Lesser-Included-Offense Instruction

Trial Court: Now, I said sometimes either side might submit to you a lesser offense, what we call a lesser included offense. So sometimes what you originally hear wouldn=t be what=s submitted to you. If that=s the case, you have to judge from the evidence the charge that=s given to you. Do ya=llunderstand that? And I guess a lesser included offense would be all of the elements of the original offense less one, usually is what it boils down to. An example of that would be from aggravated assault to assault where you take out the deadly weapon or you take out Cthat=s not this case, but in one of those type of cases if it is originally charged and somebody threatened somebody with a deadly weapon and then that doesn=t Cthe C either side didn=t feel like that=s been proven, then they can request a lesser to assault.

Trial Court=s Remarks on a Criminal Defendant=s Right to not Testify

Trial Court: The next issue is the conceptCit=s in our ConstitutionCabout the defendant=s failure to testify. The defendant in any criminal case is not required to prove himself or herself innocent. If the defendant does not choose to testify, you may not consider that fact as evidence of guilt, nor may you in your deliberations comment or in any way allude to that fact. The lawyers will talk to you about that. There are many reasons where [sic] a person might not choose to testify. They have a constitutional right not to. But I=m just going to go ahead and ask somebody else here, pick around a little bit.

How about Mr. Bowers?

Mr. Bowers: Yes, sir.

Trial Court: Mr. Bowers, if you were charged with a criminal case and the State had to proveClet=s say the State had to prove that you drove a vehicle and knocked down somebody=sCwhat do you call it? Mailbox. All right. You seen kids go by with a baseball bat and knock down the mailbox. The State has you on trial, and they put on all of their evidence and they rested and they failed to identify you at any time as knocking down the mailbox or driving the car, they just failedCthey just couldn=t come up with it. Would you testify?

Mr. Bowers: Probably not.

Trial Court: Why not?

Mr. Bowers: They might ask me a question that would get me in trouble.

Trial Court: Right. You know, that=s right. Guilty or not guilty, if you=re ahead, you don=t putCsubject yourself to cross-examination, right?

Mr. Bowers:Right.

Trial Court: All right. So there are valid reasons why bothCanother reason you might be guilty of it, right? So either innocent people or guilty people, both of them some of the time choose not to testify.

Trial Court=s Remarks on the Burden of Proof in a Criminal Trial

Trial Court: Who does the burden of proof rest with in the case? Anybody know who?

Unknown juror:The prosecution.

Trial Court: Right. The State. You=re right. When does it shift in a criminal case? What is your name, ma=am, there on the back?

Ms. Sas:Sas.

Trial Court:When does it shift?

Ms. Sas: When they have proved their case.

Trial Court:Well, right. It never technically shifts, but are the B it stays with the State throughout the trial. Now, in your own mind you may have thought that it shifted and might look elsewhere; but basically the Bit=s their burden of proof to prove the case. It=s not the defendant=s burden to prove not guilty. Do you understand that? So never at any time does it shift to the defendant.

The jury found appellant guilty of sexual assault and assessed punishment at two years=confinement in the Texas Department of Criminal Justice, Institutional Division.

II. Issues Presented

Appellant presents two issues for review:

(1) Did the trial court=s comments during voir dire about a defendant=s right not to testify and the trial court=s explanation of lesser-included-offense instructions constitute fundamental error?

(2) Did the trial court=s comments during voir dire about burden-shifting in a criminal case constitute fundamental error?

III. Analysis

Appellant argues the trial court=s comments violate articles 38.05 and 38.08 of the Texas Code of Criminal Procedure.[1] Appellant contends the comments conveyed three things to the jury: (1) If the defendant testifies, the defense must believe the State has proven its case; (2) the guilty defendant will not testify; and (3) if the defense does not request an instruction on a lesser-included offense, the State has met its burden for the charged offense. Although appellant did not object to these comments in the trial court, he argues the trial court=s comments constitute fundamental error affecting his substantial rights, so that appellate review is authorized under Texas Rule of Evidence 103(d). See Tex. R. Evid. 103(d); Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001).

To support his fundamental error argument under both of his issues, appellant relies on Blue v. State, in which a plurality of the Court of Criminal Appeals held that the trial court=s comments during jury selection tainted the presumption of the defendant=s innocence and therefore presented fundamental error. 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.). In Blue, at the beginning of the jury-selection process, the trial judge apologized to the prospective jurors for a long wait. In doing so, the court attributed the delay to the defendant=s difficulty deciding whether to plead guilty or proceed with trial. The trial judge also stated he would prefer that the defendant plead guilty and then attempted to explain why an innocent defendant might not testify. The Blue court found these comments tainted the presumption of innocence because they showed the defendant seriously considered pleading guilty, suggested the trial court knew something about the guilt of the defendant that the jurors did not know, and insinuated the defendant was guilty because no trial court would want an innocent man to plead guilty. Blue, 41 S.W.3dat 132. Unlike the comments the trial court made in Blue, the comments about which appellant complains were general statements regarding the law and not about appellant or his case. None of the trial court=s statements rose to such a level as to taint the presumption of innocence or vitiate the jury=s impartiality. See Jasper, 61 S.W.3dat 421B22; Murchison v. State, CS.W.3dC, 2002 WL 1732142, at *20B21 (Tex. App.CHouston [14th Dist.] Jul. 25, 2002, no pet.); Singleton v. State, 915 S.W.3d 342, 351B52 (Tex. App.CTexarkana 2002, no pet. h.). This court concludes the trial court=s comments do not constitute fundamental error. Accordingly, we overrule both of appellant=s issues and affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed March 6, 2003.

Panel consists of Justices Yates, Anderson, and Frost.

  Do Not Publish  C  Tex. R. App. P. 47.2(b).

[1] Article 38.05 provides:

  AIn ruling upon the admissibility of evidence, the judge 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; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.@

Tex. Code Crim. Proc.  Art. 38.05.

Article 38.08 provides:

  AAny defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.@

Tex. Code Crim. Proc.  Art. 38.08.