Robert James Tatum v. State of Texas--Appeal from 173rd District Court of Henderson County

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NO. 12-01-00137-CR










A jury convicted Robert James Tatum ("Appellant") of aggravated assault, and the court assessed punishment at six years of imprisonment. In two issues, Appellant complains that the trial court commented on the weight of the evidence and also denied his right to a fair and impartial tribunal. We affirm.


On April 12, 2000, an altercation occurred between Appellant and Erwin Joe Smith ("Smith"), the complaining witness, in Athens, Henderson County, Texas. During the altercation, Appellant stabbed Smith in the abdominal area using a knife, and Smith was treated at a local hospital. The police investigated the incident, and Appellant was subsequently charged with aggravated assault. The case was called for trial on March 12, 2001.

Smith testified at trial and described Appellant as the aggressor in the altercation. Appellant also testified and admitting stabbing Smith, but contended that he did so in self defense. The jury rejected Appellant's claim of self defense and convicted Appellant of aggravated assault. After reviewing the presentence report, the court sentenced Appellant to six years of imprisonment, and this appeal followed.


Appellant raises two issues on appeal. In his first issue, he contends that the trial judge improperly commented on the weight of the evidence. In his second issue, Appellant complains that the trial judge (1) "misused his authority to criticize Appellant's trial counsel, Appellant's trial strategy and evidence," (2) improperly moved sua sponte to "strike evidence which the State had not requested to strike," and (3) sustained all thirteen of the State's objections, (1) but sustained only two of the eight objections made by Appellant's counsel. According to Appellant, the cumulative effect of those actions was a denial of his right to a fair and impartial tribunal.

Comment on the Weight of the Evidence

At trial, the defense called Appellant's wife, Lora Tatum ("Tatum"), who is also Smith's niece. Tatum testified that there were bad feelings between Appellant and Smith because Smith believed that Appellant owed him money. She further stated that Smith seemed upset because Appellant purchased a new vehicle after Tatum told Smith they could no longer afford to employ him to mow their yard.

During Tatum's testimony, Appellant's counsel asked if the license plates for the new vehicle had been stolen, and the following exchange occurred:


Q. Okay. Was there-at any point in time were the license plates stolen off your-

A. Oh, yes.

Q. -truck?

A. They were stolen.

Q. When did that happen?

A. Again, it was in the spring of this-it was after the fight. What day they were stolen, I don't know.

THE COURT: How is that relevant if it's after the altercation?

MS. MAYHALL: Your Honor, I'll show the relevance in just a moment.

Q. Where were the - were the license plates recovered?

A. We recovered them from APD. They were supposedly found in my uncle's possession somewhere. I don't know where.


THE COURT: I'm going to strike the questions and strike -

MS. MAYHALL: Your Honor, I object to that. If Mr. Youngblood has the right -




MR. YOUNGBLOOD: Judge, I am going to object, then. It's one thing to bring in 30 years' worth of family history and argue about somebody looking at somebody cross-eyed leading up to this incident. It's another thing to start talking about things that happened after this incident.


THE COURT: The objection is sustained. I instruct you to disregard the statements made by the witness concerning the license plates. You may proceed.


Appellant contends that the judge's question about the relevance of the testimony constitutes an impermissible comment on the weight of the evidence in violation of article 38.05 of the Texas Code of Criminal Procedure. (2) However, we note that Appellant's counsel did not object at the time of the question, but lodged a general objection when the judge stated that he was going to strike the questions. Appellant concedes in his brief that his counsel did not specifically object to the judge's question as a comment on the weight of the evidence, but contends that the "specific grounds were apparent from the context." (3) From our reading of the above-quoted portion of the record, we conclude that the objection was sufficient to inform the judge that Appellant's counsel objected to striking the questions concerning the license plates. However, we do not agree that the objection was sufficient, either by language or timing, to inform the judge that Appellant's counsel considered his question about relevance a comment on the weight of the evidence. In addition, we note that Appellant's counsel did not secure a ruling on the objection or object to the judge's failure to rule. Therefore, the issue is not properly before us. Tex. R. App. P. 33.1(a)(2)(B).

Even if the issue were properly preserved for our review, the trial court may exercise broad discretion in controlling the interrogation of witnesses and the general conduct of the trial. Jasper v. State, 61 S.W.3d 413, 321 (Tex. Crim. App. 2001). Under the facts of this case, we conclude that the judge's question amounted to nothing more than an exercise of "reasonable control over the mode and order of interrogating witnesses and presenting evidence. . . ." Tex. R. Evid. 611(a). Further, if we determined the judge's question was a comment on the weight of the evidence, we could find reversible error only if the comment benefitted the State or prejudiced Appellant. Becknell v. State, 720 S.W.2d 526, 531 (Tex. Crim. App. 1986); Fletcher v. State, 960 S.W.2d 694, 701 (Tex. App.--Tyler 1997, no pet.).

The record indicates that the judge's question related only to the testimony about the license plates. Thus, the jury could not have reasonably determined that his inquiry extended to other portions of Tatum's testimony. In addition, the record reflects that, in response to the State's objection, the judge ruled the testimony was inadmissible and instructed the jury to disregard it. Consequently, the judge's question related to excluded evidence only and not to any evidence the jury was to consider in its deliberations. (4) Therefore, we do not find any benefit or prejudice that occurred as a result of the judge's question. (5) Accordingly, we overrule Appellant's first issue.

Denial of the Right to a Fair and Impartial Tribunal

In his second issue, Appellant asserts that the trial judge engaged in improper conduct and that the cumulative effect of the judge's actions was to deny Appellant the right to a fair and impartial tribunal. To support his argument, Appellant complains that the judge sustained all of the State's objections, but sustained only two of the eight objections made by his counsel. Appellant also identifies five specific incidents in which he contends the judge acted improperly.

In reviewing the record, we note that Appellant's counsel, with one exception, (6) made no objection to the conduct Appellant describes in his second issue. As a result, nothing was preserved for our review. Tex. R. App. P. 33.1(a)(1)(A). Appellant implicitly acknowledges that error was not preserved, but contends that no objections were necessary because the identified conduct, when considered in its totality, constitutes fundamental error.

To support his claim of fundamental error, Appellant directs our attention to the disparity between the number of objections sustained for the State and for his counsel. However, Appellant does not argue that any of the rulings on the substance of the objections were error. The mere fact that a judge sustains more objections of one party than the other does not indicate error in the judge's rulings or unfairness in the proceeding and therefore cannot contribute to fundamental error. Consequently, we do not consider Appellant's contention concerning the sustained objections in deciding the merits of Appellant's second issue.

As further support for his position, Appellant calls our attention to five additional incidents that occurred during the trial. In three of the incidents, the judge sustained an objection made by the State and, without a request from the State, instructed the jury to disregard the objectionable testimony. The other two incidents relate to what Appellant characterizes as the judge's misuse of his authority to "criticize Appellant's trial counsel, Appellant's trial strategy and evidence." In the first such instance, the following exchange occurred while Appellant's counsel was cross-examining Smith:


Q. Mr. Smith, have you ever been convicted of any felonies in this state?


A. No, I don't think so, or have I?


Q. Are you sure that you want to stick by that, Mr. Smith?


A. There may be a DWI.


Q. You've never pled guilty to an aggravated assault?


A. To an assault.


Q. But not an aggravated assault?


A. I don't recall. You'll have to refresh my memory with something.


Q. Perhaps this will refresh your memory.


A. Okay.


APPELLANT'S COUNSEL: May I approach the witness, Your Honor?


THE COURT: You may.


Q. Mr. Smith, I'm handing you a certified copy of a judgment.


THE COURT: You can show him to refresh his memory, if that's what you're doing.


A. This was back in - this would have been back in '93. Ten years probation.


Q. Do you recall that now?


A. Yes, I have. But I don't know who this is because I don't read that well. I wish you would read it out to me. Then I'd understand it more better because I be looking at something that I don't understand.


APPELLANT'S COUNSEL: Okay. Your Honor, with your permission, he wants me to read it to him.


THE COURT: Well, I think it - do you want to offer that into evidence? Is it a certified copy?


APPELLANT'S COUNSEL: It is a certified copy.


THE COURT: Did you show it to counsel, then, please?


STATE'S COUNSEL: Judge, I have to object to it just because there's nothing - there's not an identifiable thing. If it's used to refresh his memory, I don't have any objection to trying to refresh his memory to see if this is, in fact, him. Without a signature or some identifiable thing - it's a common name. It's not even in this county. I think she has to try to refresh his memory and see if he admits or denies it and go forward with that.


THE COURT: I'll let you go forward on that basis, Ms. Mayhall. I'll sustain your objection.


The second instance was during Appellant's testimony. As Appellant's counsel questioned him about the facts underlying a prior conviction, the Court stopped the proceedings, called counsel for both parties to the bench, and began to question Appellant's counsel as follows:

THE COURT: Can we wrap this up? This is a rabbit trail.


APPELLANT'S COUNSEL: If he's bringing it up (inaudible) what the circumstances were.


THE COURT: I don't know about that. How long - how much further are you going to examine him on this?




At that point, the judge asked that the jury retire to the jury room. Out of the presence of the jury, the State objected to any additional questions from Appellant's counsel about the facts underlying Appellant's prior conviction. The judge sustained the objection as to further factual testimony about Appellant's convictions and the revocation of his probation.

In considering whether the judge's conduct in the incidents described above rises to the level of fundamental error, we again note that a trial judge has broad discretion in maintaining control of the proceedings and expediting the trial. Jasper, 61 S.W.3d at 421. As to Appellant's complaint that the judge gave unrequested instructions to the jury, we acknowledge that it is perhaps the better practice to allow the objecting attorney to request an instruction to disregard testimony. However, we find no error where, as here, the judge gave such an instruction sua sponte in three isolated instances during a two-day trial.

We also find that the judge's actions in the two exchanges with Appellant's counsel were within his discretion in maintaining control of the trial. In the first exchange, the judge was entitled to clarify the procedure to be used in refreshing Smith's memory and to require that a document be admitted into evidence before being read aloud. In the second, a bench conference outside the presence of the jury was the appropriate method for questioning the subject matter of the testimony being elicited by Appellant's counsel. Further, the judge asked both counsel to approach the bench rather than addressing Appellant's counsel directly and said nothing in front of the jury to indicate the subject of the bench conference, either before the jury left the room or after they returned. Thus, we find nothing in the record of the second incident which supports Appellant's contention that the judge implied he disapproved of Appellant's case or attempted to embarrass or ridicule Appellant's counsel in front of the jury.

Based upon the foregoing analysis, we cannot agree with Appellant's conclusion that the action of the judge in any of the five incidents cited by Appellant constitutes error. Even if we concluded that the judge committed error in all of the cited incidents, the cumulative effect of such error is not sufficiently egregious to constitute fundamental error and deprive Appellant of his right to a fair and impartial tribunal. As stated in Blue v. State, 41 S.W.3d 129, 138 (Tex. Crim. App. 2000) (plurality opinion) (Keasler, J., concurring), "there will be a few cases where the judge's statements when viewed objectively are so egregious as to render him biased." However, isolated instances of conduct such as those described by Appellant in this case, even if error, do not translate to an indication of the judge's views about Appellant's guilt or innocence and are insufficient to "bear on the presumption of innocence or vitiate the impartiality of the jury." Jasper, 61 S.W.3d 421. Therefore, we conclude that fundamental error does not exist in this case and overrule Appellant's second issue.


Based upon our review of the record, we conclude that the trial court did not comment on the weight of the evidence and did not commit fundamental error. Therefore, the judgment of the trial court is affirmed.



Chief Justice


Opinion delivered April 12, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.


1. Appellant states in his brief that "[t]he thirteen objections also include two which the Court first made sua sponte."

2. Article 38.05 provides as follows:


In ruling upon the admissibility of the 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).

3. As a prerequisite to appellate review, the record must show that:


(1) the complaint was made to the trial court by a timely request, objection, or motion that:


(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; . . .


. . . .


Tex. R. App. P. 33.1(a)(1)(A).


4. Appellant has made no showing that the judge's instruction was insufficient to cure any possible harm arising from the judge's question and does not argue that the jury disregarded the instruction.

5. Whether the judge erred in excluding the evidence is a separate issue and was not raised by Appellant.

6. Even though Appellant's counsel objected to striking the questions in the portion of Tatum's testimony that we have previously discussed, she did not request a ruling on the objection or object to the judge's failure to rule. Therefore, no error was preserved.