MICHAEL J. O'NEILL

AFFIRM and Opinion Filed March 22, 2012

On Appeal from the 195th Judicial District Court

Dallas County, Texas

Trial Court Cause No. F08-48759-UN

OPINION

Before Justices Bridges, O'Neill, and Fillmore

Opinion By Justice O'Neill

Appellant James Michael Giraldo appeals his conviction for intoxication manslaughter. In two points of error, appellant contends (1) the trial court violated his due process rights by allowing the State to present evidence of an extraneous offense, and (2) the trial court's parole law instructions constituted a comment on the weight of the evidence. For the following reasons, we affirm the trial court's judgment.

Appellant was indicted for intoxication manslaughter. Before trial, appellant filed an application for probation asserting he had never before been convicted of a felony. Appellant subsequently entered an open plea of guilty before a jury. At the plea proceedings, the State presented evidence of the charged offense. Specifically, the evidence showed that at 1:00 a.m. appellant was driving the wrong way down the North Dallas Tollway and crashed into a car, killing the victim. Appellant's blood-alcohol level was 0.18, more than two times the legal limit. The State also presented evidence that while appellant was out on bond for the charged offense, he committed another DWI offense. At the time of trial, appellant had been indicted for that offense, but had not been tried. Appellant objected to admission of evidence of the subsequent DWI offense on Fifth Amendment grounds. Specifically, he complained that the evidence should not be admitted because he intended to testify to establish his probation eligibility and if he testified he would be required to answer questions about a pending case. The trial court overruled the objection and admitted evidence of the extraneous offense. Appellant did later testify establishing his probation eligibility and about his remorse concerning the charged offense. On cross-examination, the State questioned appellant about the extraneous DWI.

On appeal, appellant asserts the trial court erred in admitting the extraneous offense evidence because (1) he was required to testify to establish his probation eligibility, and (2) by so testifying, he would have to answer questions about the subsequent DWI. Appellant's complaint is premised on the assumption that he was required to testify to establish his probation eligibility. This is not the law. See Mansfield v. State, 306 S.W.3d 773, 776 (Tex. Crim. App. 2010)(appellant did not have to testify to establish his probation eligibility). A close family relative can establish eligibility. Id. Here, appellant's father testified that appellant had never been arrested or convicted of any offense. This is sufficient to establish eligibility. See id.

Further, appellant does not complain that he was actually questioned about the DWI or otherwise claim the trial court erred in not allowing him to limit his cross-examination. See, e.g., Cantu v. State, 738 S.W.2d 249, 255 (Tex. Crim. App. 1987) (appellant sought to limit the State's cross examination of him to allow him to testify for the limited purpose of explaining extraneous offense evidence). Instead, appellant seeks wholesale exclusion of extremely probative punishment evidence because he would have to answer questions about the evidence if he testified. Unlike the authority appellant relies on, appellant did not make otherwise inadmissible evidence admissible by choosing to testify. Cf. id. at 256 (appellant confronted with difficult decision to testify when doing so will result in questioning about otherwise inadmissible impeachment evidence). Specifically, the extraneous offense evidence would have been admissible even if appellant had chosen to invoke his Fifth Amendment right. See Tex. Code Crim. Proc. Ann. art. 37.07(a)(1) (West 2006). We conclude the Fifth Amendment is not implicated by admission of the extraneous offense evidence. We resolve the first issue against appellant.

In his second issue, appellant contends the trial court made a “comment on the weight” of the evidence by including two parole law instructions in its charge. Specifically, one instruction that would be applicable if the jury found appellant used a deadly weapon in the commission of the offense, and one that would be applicable if it failed to make such a finding. Appellant asserts giving the jury two parole law instructions constituted a comment on the weight of the evidence because the instruction “informed the jury of the effect of its answer” to the deadly weapon issue thereby “singling out” the deadly weapon issue.

In Hill, the court of criminal appeals addressed a similar complaint in a dissimilar proceeding. Hill v. State, 913 S.W.2d 581, 586 (Tex. Crim. App. 1996). Hill involved a bifurcated trial in which appellant first objected to the submission of the issue at guilt-innocence, but then complained that the special issue was not separately submitted in a two-part punishment charge. While the court stated the “better practice” is to submit the deadly weapon special issue at guilt- innocence, the Court of Criminal Appeals stated the trial court had “no alternative” to submit two instructions because the instruction was not submitted at the guilt-innocence phase. See id. Here, because appellant pleaded guilty, there was no separate guilt-innocence phase in which to submit the deadly weapon issue. See Barfield v. State, 63 S.W.3d 446, 449-50 (Tex. Crim. App. 2001) (a two-phase bifurcated trial is authorized only on a not guilty plea before a jury). Appellant cites no authority that would allow or require the jury to deliberate solely on a deadly weapon issue. Indeed, any such procedure would arguably have an even greater effect of “singling out” the deadly weapon issue. Moreover, the concurring and dissenting opinion in Hill, on which appellant primarily relies for reversal, specifically states that the code of criminal procedure does not allow for a subdivided punishment charge. See Hill, 913 S.W.2d at 596 (Judge Baird, Concurring and Dissenting). We conclude the trial court had no alternative but to submit the two instructions in one charge in the unitary proceeding. Cf. Hill, 913 S.W.2d at 586.

Moreover, we cannot agree the instructions constituted a “comment on the weight of the evidence.” A trial court should not express any opinion as to the weight of the evidence, sum up the testimony, discuss the facts, or use any argument in its charge calculated to arouse the sympathy or excite the passions of the jury. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A trial court should avoid any allusion in the jury charge to a particular “fact” in evidence. Id.at 50. We fail to see how the parole law instructions singled out any piece of “evidence” or suggested to the jury any particular evidence had any particular weight. We resolve the second issue against appellant and affirm the trial court's judgment.

MICHAEL J. O'NEILL

JUSTICE

Do Not Publish

Tex. R. App. P. 47

100180F.U05

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JAMES MICHAEL GIRALDO, Appellant

V.

THE STATE OF TEXAS, Appellee

No. 05-10-00180-CR

Appeal from the 195th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F08- 48759-UN).

Opinion delivered by Justice O'Neill, Justices Bridges and Fillmore participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered March 22, 2012.

MICHAEL J. O'NEILL

JUSTICE