Opinion
No. 04-04-00064-CR
Delivered and Filed: March 30, 2005. DO NOT PUBLISH.
Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-3554, Honorable Juanita Vasquez-Gardner, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice. Affirmed.
MEMORANDUM OPINION
Nery Flores appeals the judgment convicting him of aggravated assault with a deadly weapon and sentencing him to twelve years confinement in the Texas Department of Criminal Justice-Institutional Division. We affirm the trial court's judgment. In his sole issue on appeal, Flores contends the trial court erred in making comments to the entire panel of prospective jurors that tainted his presumption of innocence and violated his right to an impartial judge. Because Flores failed to object to the trial judge's comments at the time, we must first determine whether error exists; and if error is shown, whether such error constitutes fundamental error affecting substantial rights. Tex. R. Evid. 103 (d); Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App. 2000) (plurality opinion) (trial judge's comments tainted presumption of innocence and were fundamental error of constitutional dimension requiring no objection). Flores first argues that the trial judge erred when she stated the following:
As anybody in Mr. Flores' position sits there, they are presumed innocent and that proposition of law applies regardless of what the offense is. For example, if you received a speeding ticket and went to court for it, you would be presumed innocent, even if you did do the speeding, because until the State can prove the charges against you beyond a reasonable doubt, you are presumed innocent. (emphasis added).Flores maintains that the sequencing of the instruction that "anybody in Mr. Flores' position" is "presumed innocent" followed immediately by the speeding ticket example emphasized that Flores is presumed innocent "even if he did commit the offense." In addition, Flores argues that the trial judge failed to be impartial when she stated, "I think a lot of people and — and rightfully so, want to hear both sides of the story, but that's not how it goes in a courtroom, not always anyway." (emphasis added). By using the phrase "and rightfully so," Flores contends the judge put her personal stamp of approval on a defendant who chooses to testify; in other words, Flores argues that the judge conveyed to the jury panel that it is "right" to expect the defendant to take the stand. We disagree.Flores would have us use word combinations, phrases, and sequencing to find the trial judge tainted the defendant's presumption of innocence and conveyed her own personal opinion of the case. We decline to analyze this record based on isolated word choices taken out of context. When read as a whole in context, the trial judge did not commit error in her preliminary instructions to the jury panel. The record confirms that the trial court unequivocally informed the jury panel that Mr. Flores is "presumed innocent." The trial court further stated that the State had the burden to prove the case beyond a reasonable doubt and, "if they don't do that, then you are required to acquit a defendant." On the issue of a defendant's constitutional right not to testify, the trial court instructed the jury that a defendant is never required to testify during trial and gave several reasons why a person may not take the stand, including a fear of speaking in public. Furthermore, the trial court clearly instructed the jury panel that ". . . if a defendant chooses not to testify, that fact cannot and must not be held against him or her." We hold that the trial court's instructions, when viewed as a whole in context, were proper. Tex. Code Crim. Proc. Ann. art. 35.17 (Vernon 1989). Furthermore, the facts in Blue are clearly distinguishable. There the trial judge made extensive remarks which indicated that the judge had pre-judged Blue's guilt. Blue, 41 S.W.3d at 134 (Mansfield, J., concurring). Here, the trial judge's instructions to the jury panel properly set forth Flores' presumption of innocence, the State's burden of proof, and a defendant's constitutional right not to take the witness stand. In addition, the trial court's comments when viewed in their complete context do not reasonably suggest or convey that the trial court had pre-determined Flores' guilt or innocence. Accordingly, we find no error. Flores' sole issue is overruled. The judgment of the trial court is affirmed.