Opinion
NO. 03-22-00283-CR
05-31-2024
James Douglas JONES, Appellant v. The STATE of Texas, Appellee
Stacey M. Soule, Austin, Chase G. Goetz, for Appellee. Alexander L. Calhoun, Austin, for Appellant.
FROM THE 421ST DISTRICT COURT OF CALDWELL COUNTY, NO. 21-257, THE HONORABLE DANIEL H. MILLS, JUDGE PRESIDING
Stacey M. Soule, Austin, Chase G. Goetz, for Appellee.
Alexander L. Calhoun, Austin, for Appellant.
Before Justices Baker, Kelly, and Smith
OPINION
Chari L. Kelly, Justice
James Douglas Jones was convicted by a jury of the third-degree felony of assault bodily injury on a public servant. See Tex. Penal Code § 22.01(a)(1), (b)(1). The jury found true enhancement paragraphs and assessed punishment at 35 years in prison. In two appellate issues, Jones maintains that (1) comments made by the trial court to him showed violations of his constitutional rights to testify; to a neutral, detached, fair, impartial, and independent judge; and to a fair trial and (2) the trial court erred by refusing to instinct the jury about the defensive issue of involuntary act, see id. § 6.01(a). Because Jones’s appellate issues are either unmeritorious or unpreserved, we do not reverse the trial court’s judgment, but we modify it to correct a clerical error and affirm it as modified.
BACKGROUND
Both the alleged assault on a public servant and Jones’s complaint of involuntary conduct stem from the events of Jones’s arrest by officers of the Luling Police Department. During the arrest, Jones was tased, and one of the officers knelt on Jones’s leg that had a severe infection.
Capt. Jeff Daugherty and a fellow officer were speaking with Jones about an incident when Jones pushed the other officer’s arm and moved quickly toward the officer’s face. Capt. Daugherty tased Jones, causing Jones to fall. Capt. Daugherty testified about the events:
[The other officer] was going to walk back to [Jones’s] vehicle to search it. Him and Mr. Jones had another verbal confrontation. [The officer] went to walk past him. Mr. Jones reached out as if he was going to grab [the officer] and was reaching up grabbing at [the officer] and that’s when I deployed my taser.
Capt. Daugherty also testified about his use of the taser, explaining that once the prongs of that style of taser enter a person, he uses the taser to jolt the person for a cycle of several seconds. When the cycle ends, the delivery of electricity stops. To deliver more electricity to the person, Capt. Daugherty explained, he would need to reload the taser with new prongs and fire the new ones into the person.
During the first cycle of using the taser on Jones, Capt. Daugherty and the other officer tried to handcuff Jones. The other officer knelt on Jones’s upper back while Jones lay on his stomach on the ground, and Capt. Daugherty knelt on Jones’s legs near Jones’s backside, including on the leg that had the severe infection. After the taser cycle ended, Jones turned first on his side and then onto his back. When the turn onto his back was nearly finished, Jones’s right arm struck Capt. Daugherty on or about the head. Capt. Daugherty struggled with Jones, and after he had stopped kneeling on Jones, Jones’s right arm struck him on or about the head twice more. He testified about these events: "I slid forward up Mr. Jones’s body to keep him from standing up[,] at which time he struck me in the face. And we struggled on the ground for a while," with Jones’s finger going into Capt. Daugherty’s eye. His testimony continued by recounting that he got Jones’s finger away and that Jones’s right hand was striking him while no taser cycle was firing.
Jones was indicted for "intentionally, knowingly, and recklessly caus[ing] bodily injury to Jeff Daugherty, by striking [him] on and about the head" while Jones "did then and there know that Jeff Daugherty was then and there a public servant, to-wit: a police officer employed by the City of Luling, Texas, and Jeff Daugherty was then and there lawfully discharging an official duty, to-wit: effecting an arrest of" Jones.
At trial, the court made comments to Jones about whether he should testify. Their first exchange on the topic grew out of a discussion outside the jury’s presence about whether Jones wanted audio of his interactions with the officers admitted into evidence over his attorney’s contrary advice. On the heels of that discussion, Jones’s attorney "point[ed] out for the record" that Jones "against [the attorney’s] advice" was "leaning toward testifying." The court had this lengthy discussion with Jones and his attorney, admittedly advising Jones about whether to testify:
The Court: And—and as—and your lawyer has probably warned you
Mr. Jones: Yes, not to testify.
The Court: And I warned you yesterday, too, when we had discussions that if you testify your prior criminal history gets to become relevant to the jury because they get to decide—they get to know that you’ve been convicted of felonies.
Mr. Jones: Right.
The Court: Because that goes to impeach your credibility as a witness. And generally most lawyers—I’ve been doing this for almost 46 years.
Mr. Jones: I understand.
The Court: I’ve been around a lot of courthouses.
Mr. Jones: I understand. You wouldn’t be there.
The Court: Most lawyers whose clients have felony convictions tell their clients not to testify.
Mr. Jones: Right.
The Court: It’s not beneficial to you, Mr. Jones, for that jury to know and you have—you have charges where you were convicted of assaulting police officers.
Mr. Jones: But I was found not guilty.
The Court: Well, one of them you were found
Mr. Jones: I was found not guilty in—in all three of them.
The Court: But there are other convictions that are—where I think you were convicted of assaultive offenses.
Mr. Jones: No.
The Court: No assaultive convictions?
Mr. Jones: I have no other assaultive convictions.
The Court: Okay. I don’t know what
[Jones’s attorney]: The retaliation offense that we talked about
Mr. Jones: Well, that one— [Jones’s attorney]: —which is not exactly assault, but it’s—but it’s assaultive. The Court: It’s—it’s assaultive behavior. The jury is not going to find favor with that.
Mr. Jones: I understand.
The Court: So you can think about it at lunch. And Mr. Jones, I tell everybody this. And I’m not being a wise ass.
Mr. Jones: I understand.
The Court: I’m not. That’s not my point here. I’m trying to
Mr. Jones: I find you an honorable man. The Court: I’m trying to look out for what I think is in the best interest of— of you to some degree although that’s not my job. That’s his job
Mr. Jones: Yes, sir. Yes, sir.
The Court: —to do that. But when that jury sees these—these other things, they’re not going to find favor. And if they see you being disrespectful to the law
Mr. Jones: Uh-huh.
The Court: And the chances too, when you get on the witness stand you may be—you may have a hard time controlling your temper. And if you—if your temper comes out during the course of your testimony
Mr. Jones: Yes.
The Court: —that’s probably not going to be well perceived by the jury either. So you need to think about all of those things over the lunch hour. And nobody here is trying to railroad you and make you do anything.
Mr. Jones: No, sir.
The Court: People are trying to give you pretty good advice. Whether you take it, you know, at the end of the day
Mr. Jones: Yes, sir.
The Court: What happens your—your— your attorney doesn’t go to prison. I don’t go to prison. You’re the one that can get convicted if you alienate the jury. They’re the ones you’ve asked to sentence you.
Mr. Jones: Right.
The Court: So they’re the ones that can send you to the penitentiary for a long, long time.
Mr. Jones: Right.
The Court: So how you behave and what they perceive of you, I mean I just—I can’t—I can’t give you any more information than that, Mr. Jones. You’ve got to decide. And I’ve told you, I’ll let you override your lawyer if you want to. I’m protecting him so that he can’t later be charged with being ineffective
Mr. Jones: Right.
The Court: —as your lawyer. He’s warning you not to do this. The Court is kind of giving you some advice, which may not be my appropriate role, but I am doing the same thing. And so you think about it, and when we come back after lunch, if you decide not to play the audio we’ll continue on. And then when they rest, he can call his witnesses. And you can decide whether you’re going to get up on that witness stand and subject yourself to that cross-examination about your prior criminal history. And I don’t suggest that’s a good thing for you to do. You get to do it though.
Mr. Jones: Yes, sir.
The Court: You get to make that decision. And I’m—and we’ve had it on the record, and I’m going to put it on the record once again before you do it that you’ve been advised and over the advice of your counsel you want to testify. So that protects him. So that later on you can’t complain, "Well, my lawyer didn’t tell me." I make sure that all that gets put in the record when I try a case, Mr. Jones.
Mr. Jones: Yes, sir. The Court: I’ve been doing this a long time.
Mr. Jones: I understand.
The Court: And I can say, I can only tell you what I’ve told you. You get to make that decision. So think about it over the lunch hour, and we’ll come back.
After the lunch recess, the court briefly revisited the topic while outside the jury’s presence, and Jones hedged about whether he would testify:
The Court: … And then Mr. Jones you don’t have to tell me right now. But did you think about whether you’re going to get on that witness stand and subject yourself
Mr. Jones: Yes, sir. I thought about it. The Court: What do you want to do?
Mr. Jones: I want to wait until all the evidence is in.
The Court: Okay. That’s fine. We’ll do that. Well, just keep pondering on it, Mr. Jones.
Mr. Jones: Yes, sir.
After Jones finished putting forward witnesses in a case-in-chief and again outside the jury’s presence, the court had Jones confirm that he was declining to testify based on both his attorney’s counsel and the court’s:
The Court: All right. For the record, the jury is now out of the room. And your— Defense Counsel is having a discussion with his client. I guess—suppose whether he wants to testify. So that’s what’s going on for the record. You can take a break.
(Brief recess)
The Court: All right …. The jury is out. The defendant is present with his attorney. The State is also present. Mr. Jones has been counseled by his attorney and with conversations with the Court that are already on the record. And Mr. Jones, you have—you have discussed this thoroughly with your attorney; is that correct?
Mr. Jones: Yes, I have.
The Court: Will you raise your right hand for me. I’m going to put you under oath.
….
(Defendant sworn)
The Court: All right. You can put your hand down. So you’re under oath now, Mr. Jones. So you now have [had] quite a few hours to think about the issue of whether you want to get on the witness stand and testify and be cross-examined about your prior criminal history. So is it your decision that you are not going to—you decided to assert your Fifth Amendment or your privilege not to testify?
[Mr. Jones]: Yes.
The Court: Okay. And you’ve done that—you believe your attorney has counseled you adequately on that basis?
[Mr. Jones]: On that basis, yes.
The Court: And me, too, basically, Mr. Jones?
[Mr. Jones]: Yes, sir.
The Court: I’ve kind of warned you about doing that. So you decided of your own free will that you think that’s in your best interest not to testify and have all those prior convictions be placed before the jury; is that correct?
[Mr. Jones]: That’s correct.
The evidence closed, and the jury heard argument from both sides and found Jones guilty. The trial court did not instruct the jury on voluntariness of conduct. Jones now appeals the judgment.
CONSTITUTIONAL COMPLAINTS
[1] In his first issue, Jones maintains that the trial court’s comments to him about whether he should testify (1) infring- ed his constitutional right to testify and meant that any waiver of the right was not voluntary; (2) showed that the court failed to be constitutionally neutral, detached, fair, impartial, and independent; and (3) deprived him of a constitutionally fair trial. He identifies as the source of his rights "several constitutional principles": due process; the Fifth, Sixth, and Fourteenth Amendments; and "their Texas constitutional analogues," But because his brief nowhere puts forward argument that the Texas constitution’s provisions give greater or different protections for the rights that he invokes, we address only his federal-constitution complaints. See Gonzalez v. State, 616 S.W.3d 585, 587 (Tex. Crim. App. 2020); Ex parte Ingram, 533 S.W.3d 887, 891 n.4 (Tex. Crim. App. 2017).
Right to Testify
[2] A criminal defendant enjoys the right to testify in the guilt-innocence phase of the trial, a right protected by several provisions of the Constitution. See Rock v. Arkansas, 483 U.S. 44, 51-53 & n.8, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Smith v. State, 286 S.W.3d 333, 338 n.9 (Tex. Crim. App. 2009). But the defendant may "knowingly and voluntarily waive[ ]" that right. Smith, 286 S.W.3d at 338 n.9; see also United States v. Flores-Martinez, 677 F.3d 699, 711 (5th Cir. 2012) ("[T]he right to testify is a fundamental and personal constitutional right that only the criminal defendant himself may waive."). Jones argues that the trial court’s comments both infringed his right to testify and meant that his decision not to testify was not voluntary because the court coerced him.
[3] Neither the Court of Criminal Appeals nor our Court has stated precedentially what standard should apply to a complaint like Jones’s—where comments by the trial court are allegedly what infringed the defendant’s right to testify or prevented any waiver of the right from being voluntary. We have reviewed federal and state decisions from Texas and from around the country for analysis of complaints like Jones’s. Based on that review, we conclude that a complaint like Jones’s should be reviewed for whether the trial court’s comments coerced the defendant into not testifying. Many courts who have evaluated complaints like Jones’s have invoked the coercion standard when deciding whether the right was infringed, or not voluntarily waived, because of challenged comments by the trial court. See United States v. Tull-Abreu, 921 F.3d 294, 303 (1st Cir. 2019); United States v. Webber, 208 F.3d 545, 552-53 (6th Cir. 2000); Marks v. Davis, No. 11-CV-02458-LHK, 2016 WL 5395958, at *12 (N.D. Cal. Sept. 27, 2016); People v. Roman, No. F039818, 2003 WL 22390084, at *10-11 (Cal. Ct. App. Oct. 20, 2003); Apodaca v. People, 712 P.2d 467, 472 (Colo. 1985); Bailey v. State, 559 So.2d 604, 606-07 (Fla. Dist. Ct. App. 1990); Tachibana v. State, 900 P.2d 1293, 1302 n.5 (Haw. 1995) (citing State v. Silva, 890 P.2d 702, 711 (Haw. Ct. App. 1995), approved of in part & overruled in part on other grounds by Tachibana, 900 P.2d at 1302 n.5); Woolfolk v. Commonwealth, 339 S.W.3d 411, 416-17 (Ky. 2011); State v. Driskill, 459 S.W.3d 412, 428-29 (Mo. 2015); People v. Vanluvender, 35 A.D.3d 238, 827 N.Y.S.2d 22, 23-24 (N.Y. App. Div. 2006); F.C.L. v. Agustin, 271 Or.App. 149, 350 P.3d 482, 486-89 (2015); Lee v. State, 639 S.W.3d 312, 317-18 (Tex. App.—Eastland 2021, no pet.); see also United States v. Goodwin, 770 F.2d 631, 636-37 (7th Cir. 1985) (trial court’s comments did not coerce defendant into testifying); Medley v. Stephens, No. 2:07-CV-051, 2013 WL 3989070, at *18-22 (N.D. Tex. Aug. 5, 2013) (same); State v. Carter, No. 2003-478, 2004 WL 5582079, at *1-2 (Vt. Nov. 1, 2004) (unpublished entry order) (same). The State asks us to treat Jones’s complaint, and seemingly all right-to-testify complaints, as raising only ineffective assistance of counsel, citing as support Johnson v. State, 169 S.W.3d 223 (Tex. Crim. App. 2005). The State stretches Johnson too far. There, the Court of Criminal Appeals was answering whether a "deprivation of a defendant's right to testify, caused by defense counsel," was "an error that is properly attributable to the trial court." Id. at 228 (emphasis in original). The defendant’s complaint was "that his trial counsel deprived him of his constitutional right to testify" by failing to tell him that he could testify, as he wished to do, over counsel’s contrary advice. See id. at 226 (emphasis added). For that kind of complaint, the Court concluded that counsel’s failures are not attributable to trial courts as error and that to avoid application of Strickland v. Washington, "the defendant’s complaint must reveal error attributable to the court and not simply to defense counsel." Id. at 228, 232. Jones’s complaint is different—he argues not that his trial counsel did anything wrong but that affirmative acts by the trial court were what infringed his right to testify and kept any waiver of the right from being voluntary. See Johnson v. State, 120 S.W.3d 10, 15-16 (Tex. App.—Amarillo 2003) (noting distinction between right-to-testify complaints raising misconduct by defense counsel and those raising misconduct by trial courts), aff’d, 169 S.W.3d 223 (Tex. Crim. App. 2005). We thus adopt coercion as the standard by which complaints like Jones’s should be evaluated.
Our review of state and federal caselaw nationwide has not revealed any competing discernable standard. Some courts have evaluated complaints like Jones's without using a discernable standard, instead employing something like a totality-of-the-circumstances review without identifying which factors are the necessary or sufficient conditions for concluding that the defendant’s right to testify has been infringed or not voluntarily waived. Otherwise, our research has revealed that some courts have spoken in terms of whether the defendant's right to testify was "chilled" by trial-court comments. See, e.g., United States v. Johnson, 627 F.3d 578, 582-83 (6th Cir. 2010). And our research has revealed that Hawaii's courts review for on-the-record, affirmative expressions of understanding by the defendant when analyzing whether that state’s trial courts have properly assessed the defendant’s understanding of what is at stake when choosing whether to testify. See, e.g., State v. Kim, 402 P.3d 497, 505-07 (Haw. 2017). Despite these other decisions, we adopt the coercion standard because we believe it to be the majority approach across the country (and because Texas procedure lacks an affirmative-colloquy requirement like what exists in Hawaii).
The relevant contours of the coercion standard stem from Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), and cases applying it. There, the Supreme Court of the United States held that a trial court’s comments to a criminal defendant’s sole witness deprived the defendant of due process by "effectively dr[iving] that witness off the stand." Webb, 409 U.S. at 97-98, 93 S.Ct. 351. The comments went beyond "warning the witness of his right to refuse to testify and of the necessity to tell the truth"; they, in "threatening" and "unnecessarily strong terms," communicated that the court expected that the witness would lie and "assured [the witness] that if he lied, he would be prosecuted and probably convicted for perjury," leading to a new sentence of punishment and hurting his chances for parole. See id. at 97-98, 93 S.Ct. 351. Although the case is about defense witnesses, Webb has often been applied to complaints about the defendant’s right to testify. See United States v. Davis, 974 F.2d 182, 186-88 (D.C. Cm. 1992); Simon v. Newland, No. C 01-20508 JW, 2007 WL 2874420, at *10-11 N.D. Cal. Sept. 28, 2007; Arthur v. United States, 986 A.2d 398, 409-12 (D.C. 2009); People v. Vaughn, 354 Ill.App.3d 917, 290 Ill.Dec. 434, 821 N.E.2d 746, 753-54 (2004); Woolfolk, 339 S.W.3d at 417-18; F.C.L., 350 P.3d at 488 & n.7.
Jones himself cites Webb for his coercion argument.
[4] Beyond Webb itself, eases applying Webb-derived reasoning have identified only a few circumstances that tend to show that a trial court has coerced the defendant out of testifying. Several cases are illustrative. One trial court’s warnings to the defendant were coercive when they (1) carried with them an implied prejudgment that the witness would lie if he testified and pointed out both (2) an immigration hold affecting the defendant, by which the court could seek to have him confined, and (3) irrelevant matters like the court’s own middle-class status and decades of legal experience. See F.C.L., 350 P.3d at 488-89; see also United States v. Stile, 845 F.3d 425, 431 (1st Cir. 2017) ("[I]n Webb the admonitions were the product of an opinion preemptively formed before the defendant even began his defense."); Arthur, 986 A.2d at 408-09 (discussing case in which trial-court comments tended to cross Webb’s line because they, "taken in their entirety, implied doubt about the version of the facts" that witness at issue would offer); Vaughn, 290 Ill.Dec. 434, 821 N.E.2d at 754 ("A trial judge’s admonitions are improper if they indicate the judge is no longer acting in the role of neutral decision-maker," "[f]or instance, when a trial judge predicts the outcome of a case based on witness’s decision to testify."). Court comments that "intimidat[e]," "threaten," or "frighten" the defendant are likely coercive. See Webber, 208 F.3d at 553; Bailey, 559 So.2d at 607; Vaughn, 290 Ill.Dec. 434, 821 N.E.2d at 753.
[5] In another case, a trial court’s warning that if the defendant testified differently from what he had told his attorney about the underlying events, he would then be subject to a perjury charge was impermissible because the trial court was wrong that the defendant’s statements to his attorney could give rise to a perjury charge. See Woolfolk, 339 S.W.3d at 415-18. "[W]hen the warning or threat of future prosecution for perjury is false, it cannot be construed as having any legitimate purpose … except to dissuade a defendant from exercising his right to testify." Id. at 418. Thus, even though nothing else about the court’s comments to the defendant was "intimidating," "the trial court’s inaccurate warning to a criminal defendant that a perjury charge is a likely consequence of his election to testify, when in fact it is not, is always error." Id.; see also Vaughn, 290 Ill.Dec. 434, 821 N.E.2d at 754 ("[A] trial judge’s admonitions are improper if they are based on mistaken facts of a plea bargain that may cause the witness not to testify for fear that the plea bargain would be revoked.").
In a third case, a trial court crossed the line when—even after the defendant had unequivocally expressed his wish to testify—it repeatedly questioned the defendant about whether he would testify and repeatedly offered what the court called "reasonable" alternatives to testifying that would still accomplish the defendant’s goals, all after the defendant and his attorney had conferred. See Arthur, 986 A.2d at 412; see also Silva, 890 P.2d at 711 (right to testify infringed when, in bench trial, court after defendant said he wanted to testify asked, "Maybe we should listen to our lawyers, you know what I mean? … Are you telling me you want to go counter to her advice to you?" and emphasized court’s long-term experience with "very, very competent Defense Attorney"). Courts have equated sua sponte question- ing of defendants about "why [they have] chosen not to testify" with "intrud[ing] into the attorney-client relationship." See Martinez v. State, 530 P.3d 1131, 1137 (Alaska Ct. App. 2023).
[6] Turning to the trial court’s comments here, we conclude that the comments did not coerce Jones out of testifying. This is not a case, like some cited above, in which the court’s comments came after the defendant unequivocally stated the desire to testify. Jones had been equivocal, and after he answered unequivocally that he would not testify, the court did not comment further, Coupled with this fact, we consider it significant that the court gave Jones ample opportunity to confer with his attorney, including at intervening breaks in the trial and—especially—after the court had finished its commentary. See United States v. Murray, 659 F. App’x 1023, 1029 (11th Cir. 2016); Webber, 208 F.3d at 552-53; Gray v. United States, 155 A.3d 377, 391 (D.C. 2017); Vaughn, 290 Ill.Dec. 434, 821 N.E.2d at 754. The contents of the court’s comments advising Jones of possible consequences of taking the stand and to listen to his experienced attorney were not themselves coercive. See Momplaisir v. Capra,, No. 13-CV-6118 (PAC) (RLE), 2015 WL 10489141, at *11 (S.D.N.Y. Aug. 12, 2015) (advice to listen to experienced attorney), report & recommendation adopted, No. 13 Civ. 6118 (PAC) (RLE), 2016 WL 1070848 (S.D.N.Y. Mar. 16, 2016), aff’d in part & vacated in part on other grounds, 718 F. App’x 91 (2d Cir. 2018); Vanluvender, 827 N.Y.S.2d at 23-24 (consequences of taking the stand). Nor were the comments that laid out potential cross-examination topics if Jones chose to testify coercive. See Murray, 659 F. App’x at 1029; State v. Veikoso, No. 30138, 2010 WL 5037006, at *10-11 (Haw. Ct. App. Dec. 9, 2010), aff’d in part & rev’d in part, on other grounds, 270 P.3d 997 (Haw. 2011).
We do not encourage comments like those here though. They, even if not unconstitutional, bear some similarities with the kinds of comments that federal circuit courts have criticized. See United States v. Anderson, 1 F.4th 1244, 1259 (11th Cir. 2021); Brown v. Artuz, 124 F.3d 73, 79 n.2 (2d Cir. 1997); United States v. Joelson, 7 F.3d 174, 176-78 (9th Cir. 1993); United States v. Goodwin, 770 F.2d 631, 637 (7th Cir. 1985).
Jones argues that these particular comments were coercive because they were wrong—because they incorrectly suggested that Jones could be cross-examined using one or more convictions that were too long past, under Rule of Evidence 609(b). We view the trial court’s comments as having settled on the "retaliation" conviction as the basis for potential cross-examination about prior convictions and as having set aside the other convictions that the comments had earlier alluded to. Despite the retaliation conviction’s age, evidence of the retaliation conviction still could have been admitted "if its probative value, supported by specific facts and circumstances, substantially outweigh[ed] its prejudicial effect." See Tex. R. Evid. 609(b). Because of this possibility, the trial court’s comments were not categorically wrong. Plus, Jones had chances to speak with his attorney both before and after the court's comments about potential impeachment, and those discussions could have cured any misstatements by the court about the admissibility of the prior convictions. See Stokes v. State, 221 S.W.3d 101, 107 (Tex. App.—Houston [14th Dist.] 2006), vacated on other grounds, 277 S.W.3d 20 (Tex. Crim. App. 2009).
We see further support for our conclusion that there was no trial-court coercion in some of Jones’s responses to the court. Jones stated his belief that his attorney had counseled him well about whether he should testify and relayed that even before the reported discussion with the court began, his attorney had counseled him not to testify. See Arthur, 986 A.2d at 412-13 (court’s comments coerced defendant out of testifying in part because comments "undermine[d] counsel’s strategic advice"); Knotts v. State, 61 S.W.3d 112, 118 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (court’s comments to witness who ultimately did not testify were not harmful to defendant who wished to call that witness in part because "witness exercised his Fifth Amendment privilege only after being privately counseled by an attorney outside the presence of the trial court and prosecutor"). Other of Jones’s responses to the court—particularly those pushing back on the court’s characterizations of Jones’s criminal history—show that many (if not all) of the court’s statements did not cause Jones’s personal will to be overborne. See Lopez v. State, 610 S.W.3d 487, 494 (Tex. Crim. App. 2020) (coercion, in context of confessions, requires that defendant’s will was overborne); Hunter v. State, 148 S.W.3d 526, 532 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (whether defendant’s will was overborne can involve assessments of witness demeanor).
In all, we hold that the court’s comments did not coerce Jones, meaning that he voluntarily waived his right to testify. We thus overrule this portion of his first issue.
The Fifth Circuit has identified the trial-court comments reproduced in the following opinion as exemplary on the issue of trial courts’ discussing with defendants the right to testily. See Hollenbeck v. Estelle, 672 F.2d 451, 452 53 (5th Cir. 1982).
Right to a Neutral , Detached , Fair , Impartial , and Independent Judge
[7, 8] Jones’s constitutional complaint that the trial court was not neutral, detached, fair, impartial, and independent, as shown by the court’s comments, is in other words a complaint that the trial court was biased, see Sandoval v. State, 665 S.W.3d 496, 512-14 (Tex. Crim. App. 2022); Avilez v. State, 333 S.W.3d 661, 673 (Tex. App.— Houston [1st Dist.] 2010, pet. ref’d); see also Tapia v. State, 462 S.W.3d 29, 44 (Tex. Crim. App. 2015) ("Absent a clear showing of bias, we presume a trial court is neutral and detached."), and that the bias deprived him of due process, see Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Avilez, 333 S.W.3d at 673. Jones brings this bias complaint both in support of his right-to-testify complaint and as a complaint on its own. In either case, to evaluate complaints of judicial bias that deprived the defendant of due process, Texas courts have applied the standards announced in Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). See Riggins v. State, — S.W.3d —, — - — 2023 WL 5616199, at *9-10 (Tex. App.–Houston [1st Dist.] 2023, no pet. h.); Celis v. State, 354 S.W.3d 7, 21-25 (Tex. App.—Corpus Christi-Edinburg 2011), aff’d, 416 S.W.3d 419 (Tex. Crim. App. 2013); Abdygapparova v. State, 243 S.W.3d 191, 208-09 (Tex. App.—San Antonio 2007, pet. ref’d); Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d); accord Gonzalez v. State, 616 S.W.3d 585 (Tex. Crim. App. 2020) (unpublished portion of otherwise-published opinion); Dunbar v. State, Nos. 03-18-00673-CR, 03-18-00674-CR, 2020 WL 1943356, at *2-4 (Tex. App.—Austin Apr. 23, 2020, no pet.) (mem. op., not designated for publication). [9–13] Applying Liteky, we note that to show unconstitutional bias, judicial comments must show "a deep-seated favoritism or antagonism that would make fair judgment impossible":
Jones's complaint is one of "actual bias" and not one of "presumptive bias," identified by federal courts as involving only situations where (1) the decisionmaker has a direct personal, substantial, and pecuniary interest in the outcome of the case; (2) an adjudicator has been the target of personal abuse or criticism from the party before him; or (3) a judicial or quasi-judicial decisionmaker has the dual role of investigating and adjudicating disputes and complaints. See Buntion v Quartreman, 524 F.3d 664, 672 (5th Cir. 2008); Bighy v. Dretke, 402 F.3d 551, 559 (5th Cir. 2005).
[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. … [T]hey will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. … Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women … sometimes display. A judge’s ordinary efforts at courtroom administration—even a stern and short-tempered judge’s ordinary efforts at courtroom administration—remain immune.
510 U.S. at 555-56, 114 S.Ct. 1147 (emphasis removed); accord Celis, 354 S.W.3d at 22. Applying these standards here, we conclude that the trial court’s comments do not show any unconstitutional bias. Even if they may be interpreted as critical of Jones’s earlier lean toward testifying, the level of criticism here is not enough. See Liteky, 510 U.S. at 555-56, 114 S.Ct. 1147. The references to Jones’s prior convictions and prosecutions reflect at most opinions formed by the court on the basis of facts introduced or events occurring in the course of the current proceedings or of prior proceedings that involve no deep-seated favoritism or antagonism against Jones, see id., but are closer to "working through [the court’]s own analysis of the issues out loud," see Tovar v. State, 619 S.W.3d 783, 793 (Tex. App.—San Antonio 2020, pet. ref’d). And nothing in the court’s comments reflects any prejudgment of Jones’s guilt or innocence. See United States v. Allen, 587 F.3d 246, 253 (5th Cir. 2009). We also take the trial court at its word that it was motivated in large part by ensuring that Jones received a fair trial, and its warnings to Jones about how badly things could go for him if he faced cross-examination track that motivation. See Sandoval, 665 S.W.3d at 514 (stating that judicial bias under Liteky’s standards "cannot be shown when the trial judge’s manifest intent is to benefit the defendant and protect his rights"). Although the jury assessed punishment at 35 years in prison, it could have given up to 99 years. See Tex. Penal Code §§ 12.42(d), 22.01(a)(1), (b)(1). Jones cites Abdygapparova as support for an argument that it was improper for the court to give him legal advice, but that case is distinguishable because it involved bias shown to have "clearly … infected the entire trial process," including especially the jury’s views of the defendant and his theories of the case. See 243 S.W.3d at 206-10. By contrast here, there is no sign that the jury knew of the trial court’s comments, which were made outside their presence, and the comments themselves affected nothing in the trial process beyond possibly Jones’s decision about whether he would testify. We thus overrule this portion of Jones’s first issue.
Right to a Fair Trial
[14, 15] Finally under his first issue, Jones maintains that the trial court’s comments denied him a constitutionally fair trial. Complaints like Jones’s about comments made during trial that deprive the defendant of a constitutionally fair trial must be preserved in the trial court. See Clark v. State, 365 S.W.3d 333, 339-40 (Tex. Crim. App. 2012); Wright v. State, 776 S.W.2d 763, 766-67 (Tex. App.—Corpus Christi-Edinburg 1989, pet. ref’d). Because Jones never made the trial court aware of a complaint that its comments were depriving him of a constitutionally fair trial, we cannot reach this last portion of his first issue. See Tex. R. App. P. 33.1(a); Pena v. State, 285 S.W.3d 459, 463-64 (Tex. Crim. App. 2009). Even if the complaint need not have been preserved, we conclude that the comments are not the kind of "intrusive and prejudicial" comments that are required to support a reversal. See Staten v. State, 919 S.W.2d 493, 495-96 (Tex. App.—Fort Worth 1996, pet. ref’d). In all, Jones’s first issue does not require reversal.
REFUSAL TO GIVE VOLUNTARINESS INSTRUCTION
[16] In his second issue, Jones maintains that the trial court erred by refusing to include in the jury charge a defensive instruction about voluntariness of conduct under Penal Code section 6.01. "A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession." Tex. Penal Code § 6.01(a).
[17–19] We review a complaint of charge error under a two-step framework. Harmel v. State, 597 S.W.3d 943, 956 (Tex. App.—Austin 2020, no pet.); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). We first decide whether the claimed error exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Harmel, 597 S.W.3d at 956. "[A]ll alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court." Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); accord Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). Second, if there is error, we evaluate the harm caused by the error. Ngo, 175 S.W.3d at 743; Harmel, 597 S.W.3d at 956. The amount of harm needed for a reversal depends on whether the defendant preserved the error for review. Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref’d).
[20–24] A trial court must instruct the jury on the "law applicable to. the case." Tex. Code Crim. Proc. art. 36.14. "The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense." Tex. Penal Code § 2.03(c). A defense is raised by the evidence only "if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is time." Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007). "In determining whether a defense is thus supported, a court must rely on its own judgment, formed in the light of its own common sense and experience, as to the limits of rational inference from the facts proven." Id. at 658. "A defendant is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of the trial court’s opinion about the credibility of the defense." VanBrackle v. State, 179 S.W.3d 708, 712 (Tex. App.—Austin 2005, no pet.). "When a judge refuses to give an instruction on a defensive issue because the evidence supporting it is weak or unbelievable, he effectively substitutes his judgment on the weight of the evidence for that of the jury." Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997) (quoting Woodfox v. State, 742 S.W.2d 408, 410 (Tex. Crim. App. 1987)). "When reviewing a trial court’s refusal of a requested defensive instruction, we view the evidence in the light most favorable to the defendant’s requested instruction." Maciel v. State, 631 S.W.3d 720, 722 (Tex. Crim. App. 2021).
[25–28] We conclude that even when viewed in the light most favorable to the instruction, the evidence did not raise the defensive issue of involuntary conduct. Section 6.01(a) voluntariness "refers only to one’s own physical body movements." Farmer v. State, 411 S.W.3d 901, 906 (Tex. Crim. App. 2013) (quoting Rogers v. State, 105 S.W.3d 630, 638 (Tex, Crim. App. 2003)). A "movement is considered involuntary only if that movement is ‘the nonvolitional result of someone else’s act, [was] set in motion by some independent non-human force, [was] caused by a physical reflex or convulsion, or [was] the product of unconsciousness, hypnosis or other nonvolitional impetus.’ " Id. (quoting Rogers, 105 S.W.3d at 638). Even "a voluntary act that comprised a portion of the commission of the offense is sufficient to satisfy the requirement of Section 6.01(a), even if that voluntary act was accidental or the consequences of that act were unintended." Id. Relatedly, "the ‘voluntary act’ requirement does not necessarily go to the ultimate act (e.g., pulling the trigger)"; instead, the requirement is "only that criminal responsibility for the harm must ‘include an act’ that is voluntary (e.g., pulling the gun, pointing the gun, or cocking the hammer)." Id. (quoting Rogers, 105 S.W.3d at 638).
Jones’s theory of the alleged assault is that while he was on his stomach on the ground, Capt. Daugherty’s pressure on his infected leg caused a "reflexive reaction to pain" that caused him to turn onto his back and his arm to reach upward to strike Capt. Daugherty more than once—all involuntarily. This theory depends on the video evidence admitted, for none of the witnesses gave any evidence tending to support Jones’s theory.
And the video evidence gives rise to no rational inference that Jones’s theory of involuntary conduct could be correct. The video evidence shows only that after the taser cycle ended while Jones was on his stomach on the ground and his body then was turning over onto his back, (a) Jones reared his right hand back and struck Capt. Daugherty on or about the head and (b) after Capt. Daugherty had ceased placing any pressure on Jones’s legs, Jones used his right arm to strike Capt. Daugherty on or about the head twice more. The video evidence cannot reasonably be viewed as showing any "nonvolitional result of [Capt. Daugherty]’s act" or any striking by Jones that was set in motion by, caused by, or the product of pressure by Capt. Daugherty on Jones’s infected leg. See Farmer, 411 S.W.3d at 906 (quoting Rogers, 105 S.W.3d at 638); see also Najar v. State, 618 S.W.3d 366, 372 (Tex. Crim. App. 2021) (noting that facts may be conclusively established by indisputable visual evidence). No evidence supported a voluntariness instruction, so we overrule Jones’s second issue.
MODIFICATION OF THE JUDGMENT
[29] The trial court’s judgment contains an error that we may modify to correct. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.— Dallas 1991, pet. ref’d) (en banc). The judgment’s "Statute for Offense" section recites "22.01(B)(2) Penal Code" as the statute providing for the offense of assault bodily injury on a public servant that Jones committed. The "Statute for Of- fense" section of judgments should recite the statutory references that define the elements of the offense that the defendant committed. See, McDade v. State, 613 S.W.3d 349. 358 & n.12 (Tex. App.—Dallas 2020, no pet.); Bledsoe v. State, 479 S.W.3d 491, 497-98 (Tex. App.—Fort Worth 2015, pet. ref’d). The statutory references that define the elements of Jones’s offense are Penal Code section 22.01(a)(1), (b)(1). We thus modify the judgment so that its "Statute for Offense" section now recites "22.01(a)(1), (b)(1) Penal Code".
This appears instead to be the part of the statute that provides that family-violence assaults are third-degree felonies.
CONCLUSION
We affirm the judgment as we have modified it.