Michael Frederick Crane v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-96-218-CR

MICHAEL FREDERICK CRANE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 31277

O P I N I O N

After Michael Frederick Crane pled guilty to three counts of Aggravated Sexual Assault, the jury assessed punishment of 45 years' confinement on each count. Crane now appeals the assessed punishment complaining the trial court erred when it granted the State's motion to remove him from the counsel table during the testimony of one of the State's witnesses. Because the trial court did not commit error, we affirm.

Approximately two weeks after the adoption of his eleven-year-old son, Crane began to enter his son's room at night to fondle his penis. This sexual abuse continued monthly for the next two years. During this time, Crane would also occasionally perform oral sex on his son, take photographs of his son's erections, and make his son sit on his lap to watch television while he had an erection. Eventually, Crane's son revealed his father's actions to the police.

During the punishment phase of the trial, the State sought to introduce the testimony of B.A., a ten-year-old boy, to demonstrate that Crane had molested other boys. However, B.A. had some fears about testifying into the microphone and having Crane sit near while he testified. Therefore, the State requested that the microphone be turned off and Crane be moved to another seat in the courtroom, which was further away from the witness stand than the defendant's counsel table. Crane's defense counsel did not object to the microphone being turned off, but vigorously objected that Crane should not be removed from the counsel table. After questioning B.A. about his fears, the trial judge decided to have Crane sit in the front row of the courtroom, approximately 12 to 15 feet from where he would be sitting normally at the counsel table. From this position, Crane could maintain eye contact with the witness on the stand. Additionally, the judge told defense counsel that she may break whenever she wanted to consult with Crane. With these modifications, B.A. was able to testify that Crane touched B.A. s penis as B.A. was about to shower after helping Crane work on a baseball field.

In his sole point of error, Crane claims that the trial court erred when it moved him from his seat at the counsel table before B.A. testified for the State. Crane contends that this resulted in error because it constituted a nonverbal comment on the weight of the evidence, violated Crane's right to confront the witness, and rendered his assistance of counsel ineffective. Article 38.05 of the Code of Criminal Procedure provides:

In 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. Ann. art. 38.05 (Vernon 1979). In order to be error requiring reversal, comments from the bench must be reasonably calculated to benefit the State or prejudice a defendant's rights. Green v. State, 881 S.W.2d 27, 29 (Tex. App. San Antonio 1994, no pet.) (citing Marks v. State, 617 S.W.2d 250, 252 (Tex. Crim. App. [Panel Op.] 1981)).

In Marks, the trial judge called a five minute recess and said, in front of the jury, that he wanted to talk to a young witness who was changing his story. Marks, 617 S.W.2d at 252. The Court of Criminal Appeals noted that the trial judge did not make any comment during the ruling on the admissibility of evidence. Id. Although the Court acknowledged that the better practice would have been for the trial judge to remove the jury before telling the witness that he wanted to speak with him, it did not find a violation of Article 38.05. Id. Presently, Crane relies upon the trial judge moving him to a different seat before B.A. testified as being a comment on the weight of the evidence. Similar to Marks, the trial judge did not make any verbal comment during the ruling on the admissibility of evidence. However, unlike Marks, the trial judge in this case could not have lessened any misconception of the jury. Outside the presence of the jury, the judge questioned B.A. to decide if it was necessary to move Crane away from the witness stand. After it became apparent that B.A. was apprehensive about testifying with Crane sitting so near him, the judge told Crane to sit in the first row of seats in the courtroom. Also, the judge offered to make an instruction to the jury about why Crane had switched seats, but Crane's counsel refused this offer. There is sufficient evidence that the judge made Crane sit away from the counsel table for B.A.'s benefit, rather than to benefit the State or prejudice Crane. Green, 881 S.W.2d at 29. Thus, the trial judge did not make a comment on the weight of the evidence by requiring Crane to switch seats before B.A. testified.

Next, Crane contends that his removal from his position at the counsel table amounted to a denial of his right to confrontation. Under the Sixth Amendment to the Federal Constitution and Article One, Section Ten of the State Constitution, an accused has the right to confront an adverse witness. Bingham v. State, 915 S.W.2d 9, 14 (Tex. Crim. App. 1994) (Maloney, J., concurring). The confrontation clause is primarily concerned with ensuring the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666 (1990). It requires: (1) a personal examination of the witness in the presence of the accused; (2) that the witness testify under oath; (3) that the witness be subject to cross-examination; and (4) that the jury observe the demeanor of the witness. Craig, 497 U.S. at 845-46, 110 S. Ct. at 3163. The opportunity to cross-examine the witnesses against the accused has been held to be the essential policy underlying the right to confrontation. Harris v. State, 642 S.W.2d 471, 476 (Tex. Crim. App. 1982); Rodriguez v. State, 926 S.W.2d 379, 380 (Tex. App. San Antonio 1996, no pet.); Duncan v. State, 899 S.W.2d 279, 280 (Tex. App. Houston [14th Dist.] 1995, pet. ref'd).

Although the trial judge moved Crane from his seat at the counsel table to the front row of the courtroom, he remained in the courtroom when B.A. testified under oath so that a face-to-face encounter occurred. In fact, the judge noted that Crane was to sit in a location where he could maintain "physical eye contact" with B.A. during the testimony. Also, Crane's defense counsel freely and fully cross-examined B.A. during which time the judge and jury observed the witness demeanor. Considering these factors, we conclude that Crane's right of confrontation was not violated.

Finally, Crane alleges he was denied effective assistance of counsel by requiring him to sit away from the counsel table because he was not able to communicate with his attorney during B.A.'s direct- and cross-examination. The judge instructed Crane's attorney that she could break anytime during B.A.'s testimony to confer with her client. Such a consultation break was never requested. Nevertheless, Crane now contends that requesting such a break would have drawn more negative attention to his move.

To prevail on an ineffective assistance of counsel claim, the defendant must first establish that his counsel's representation fell below an objective standard of reasonableness. Tapia v. State, 933 S.W.2d 631, 634 (Tex. App. Dallas 1996, pet. ref'd). The defendant must then show that a reasonable probability exists that a different outcome would have resulted but for trial counsel's unprofessional errors. Id. The convicted defendant carries the burden of proving an ineffective assistance of counsel claim by a preponderance of the evidence. Id. The defendant must overcome a strong presumption of counsel's competence. Id. Moreover, we do not judge counsel s trial decisions in hindsight. Id. Crane has not proven that any of his trial counsel's actions amounted to ineffective assistance which would have resulted, with a reasonable probability, in a different outcome. Therefore, we overrule Crane's sole point because the trial judge did not comment on the weight of the evidence and he was not deprived of the rights of confrontation and effective assistance of counsel.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 2, 1997.

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