Opinion
No. 10-03-00043-CR
Opinion delivered and filed January 12, 2005. DO NOT PUBLISH.
Appeal from the County Court at Law No. 2, Johnson County, Texas, Trial Court # M200200046. Reversed and remanded.
L. Patrick Davis, Ft. Worth, TX for Appellant/Relator. Bill Moore, Co. Atty. and Erin K. Lamb, Asst. Co. Atty. for Johnson County, Cleburne, TX, for Appellee/Respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA, (Chief Justice GRAY dissenting).
MEMORANDUM OPINION
David Comparini Luna appeals from his DWI conviction and complains that the trial court erred by (1) denying him the right to compel the appearance of a material defense witness and (2) denying his motion for a mistrial when the trial court asked Luna if he was under the influence of alcohol in front of the jury. Because we find that the trial court's question was a harmful comment on the weight of the evidence, we reverse and remand.
Comment on the Weight of the Evidence
In Luna's second issue, he argues that the trial court erred in denying his motion for mistrial when the trial court asked Luna if he was under the influence of alcohol in the presence of the jury. We review a trial court's ruling on a motion for mistrial for an abuse of discretion, and must uphold the trial court's ruling if that ruling was within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004); Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). A mistrial is an appropriate remedy when the impropriety is so inflammatory that a curative instruction is not likely to prevent a jury from being unfairly prejudiced against a defendant. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999); Thompson v. State, 89 S.W.3d 843, 851 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). A trial judge should diligently avoid making any remark that is calculated to convey to a jury his opinion of the case. Harris v. State, 56 S.W.3d 52, 58 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Bachus v. State, 803 S.W.2d 402, 405 (Tex.App.-Dallas 1991, pet. ref'd).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. art. 38.05. To constitute reversible error, the trial court's comment to the jury must be such that it is reasonably calculated to benefit the State or to prejudice the rights of the defendant. Becknell v. State, 720 S.W.2d 526, 531 (Tex.Crim.App. 1986). In order to determine the above, we must first examine whether the trial court's statement was material to the case. An issue is material if the jury had the same issue before it. Clark v. State, 878 S.W.2d 224, 226 (Tex.App.-Dallas 1994, no pet.) (citing Jackson v. State, 548 S.W.2d 685, 695 (Tex.Crim.App. 1977)). Also, a trial court's statement is considered improper if the statement (1) implies approval of the State's argument; (2) indicates any disbelief in the defense's position; or (3) diminishes the credibility of the defense's approach to the case. Greeno v. State, 46 S.W.3d 409, 414 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Clark, 878 S.W.2d at 226. Before Luna testified in his defense, his defense attorney asked the trial court to admonish Luna, apparently to assess whether Luna understood that he was waiving his Fifth Amendment right not to testify. During the admonishment, the trial court asked Luna, "You're not under the influence of any alcohol at this time?" The key issue in this DWI case was whether Luna was intoxicated while he was driving on the night in question. Obviously, the trial court's question dealt directly with that issue. Therefore, the trial court's question was material to the case. Clark, 878 S.W.2d at 226. Furthermore, the comment indicated a disbelief in the defense's position. Luna's defense was that a medical condition, not intoxication, caused him to lose the normal use of his mental and physical faculties. Asking if Luna was under the influence of alcohol while Luna was on the stand and the jury was present not only implies disbelief in Luna's contention that he has an impairing medical condition, but also undermines his credibility in the jury's eyes while simultaneously strengthening the State's position that Luna was intoxicated on the night in question. See id. Indeed, the comment has the potential of leaving the jury with the impression that the trial court harbors suspicions that Luna is intoxicated at his own trial. For the above reasons, we find the trial court's question improper, the prejudicial effect of which was manifestly "dangerous." Thompson, 89 S.W.3d at 851. Therefore, because no instruction could have cured the prejudicial effect of the question, the trial court erred in denying Luna's request for a mistrial. See Wesbrook v. State, 29 S.W.3d 103, 115-16 (Tex.Crim.App. 2000); Thompson, 89 S.W.3d at 851. Having found that the trial court erred in denying the mistrial, we must decide if the error was harmless. Franklin v. State, 138 S.W.3d 351, 357 (Tex.Crim.App. 2004). Because the error complained of does not involve a Constitutional error, Rule 44.2(b) is applicable. Franks v. State, 90 S.W.3d 771, 805 (Tex.App.-Fort Worth 2002, pet. ref'd). Under Rule 44.2(b), an appellate court must disregard an error when no substantial rights of the defendant are affected because the error did not influence the jury, or had but a slight effect. Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Crim.App. 2003). If there are "grave doubts" about whether the error did not effect the outcome, then the error is treated as if it did effect the outcome. Fowler v. State, 958 S.W.2d 853, 865 (Tex.App.-Waco 1997), aff'd, 991 S.W.2d 258 (Tex.Crim.App. 1999). The trial court's question gave the appearance of impropriety, because it recited the very issue in dispute and implicitly rebutted the defense's argument of innocence. See Webb v. Tex., 409 U.S. 95, 96, 93 S. Ct. 351, 352, 34 L. Ed. 2d 330 (1972) (finding that that trial court's lengthy and intimidating admonishment to a defense witness not to lie else he would be convicted of perjury violated the defendant's due process rights). "Jurors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved." Jones v. State, 788 S.W.2d 834, 836 (Tex.App.-Dallas 1990, no pet.). Therefore, we have "grave doubts" about whether the error did not effect the outcome of Luna's trial. See TEX. R. APP. P. 44.2(b); Fowler, 958 S.W.2d at 865. Accordingly, we sustain Luna's second issue.
Conclusion
Because Luna's second issue is dispositive of his appeal, we need not address his other issue. Therefore, we reverse the judgment of the trial court and remand for a new trial.DISSENTING OPINION
The trial court's question was standard operating procedure to make sure the defendant was knowingly and voluntarily waiving his Fifth Amendment right against self incrimination. The admonishment was at the request of Luna's counsel. The trial court did not err in refusing to grant a mistrial. I dissent.