No. 05-09-00414-CR
Opinion issued January 5, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7 Dallas County, Texas, Trial Court Cause No. F07-71719-TY.
Before Justices FITZGERALD, MURPHY, and FILLMORE.
Opinion By Justice FITZGERALD.
A jury found appellant Christian Ponce de Leon guilty of possession of cocaine in an amount less than one gram. The trial court sentenced him to probation for a period of two years. In a single issue, appellant contends the trial court commented on the weight of the evidence when responding to a question from the jury during its deliberations. We conclude any error in instructing the jury was harmless, and we affirm the trial court's judgment.
Background
Appellant was originally detained by James Davis, a security guard patrolling at an apartment complex at about one o'clock in the morning. Davis testified he saw appellant run, with a gun in his hand, from the area where Davis had heard gunshots fired. Davis stated he watched appellant get into his vehicle and drive off. Davis followed, intending to get appellant's license plate number. But appellant suddenly stopped driving, and-when Davis approached the vehicle-appellant appeared to have passed out while driving. Davis saw the gun on the passenger seat. Davis testified he woke appellant; appellant became aggressive and was "stumbling around like he was intoxicated." Davis testified appellant's breath smelled heavily of alcohol and his eyes were very glassy. Davis detained appellant and called the Dallas police. Officer Alexi Byer responded on the scene of Davis's detainment of appellant. Davis related his version of what had happened prior to Byer's arrival, and then Byer observed and spoke to appellant. Byer testified she could smell "a lot of alcohol" on appellant's breath, he was unsteady when he walked, and his eyes were very glassy and red. She concluded he was intoxicated and arrested him for public intoxication because he could have driven off in his vehicle, in which she had seen a gun, and could have been a danger to the public. Byer explained that appellant was thoroughly searched after his arrest, and police found cocaine in his wallet. Appellant was then held for possession of the drug. After the State presented the testimony of Davis and Byer, the defense called appellant to testify on his own behalf. He testified he was at the apartment complex that night looking for two women who were friends of his. They had been together at a bar previously; appellant had bought the women drinks, but he said he did not drink himself. When he knocked on the apartment door, several young men grabbed him around his neck, threw him in a room, and hit and choked him. The women helped him break free, and he ran for his truck and drove off. As he drove he saw lights behind him and stopped. Davis approached the truck and told appellant to get out. Appellant testified that Davis detained him, asked him questions, took his wallet to see his license, and then replaced the wallet in his pocket. Appellant testified his eyes were red because he had been crying: he was frightened by the beating and was worried about his friends. But he had not been drinking that night and was not intoxicated. Further, he testified he did not know how the cocaine got in his wallet because he did not do drugs. Nevertheless, the jury found him guilty of the possession charge. To place the issue before us in context, we relate key testimony from the punishment phase of the trial. Appellant chose to have the trial court assess his punishment and, during the penalty phase of the trial, appellant testified again. This time he testified he had used drugs in the past, someone had given him the cocaine at issue, and he had put it in his pocket. He acknowledged he had lied to the jury while he was under oath concerning the cocaine. And, when asked if he had a drug problem, appellant testified he had a drinking problem "back then" and he was drinking the night he was arrested. The trial judge confronted appellant concerning his perjury and ultimately placed appellant on probation for two years. This appeal followed. The Supplemental Jury Instruction
The trial court received a note from the jury during its deliberation. The note stated: "Ask the judge if the security guard may have held him illegally has any bearing on the officer's arrest." The judge accepted suggestions from the attorneys and then researched the question himself. He proposed the following answer to the jury's question: The Court has received your note. In response, the actions of the security guard have no bearing one way or the other on the issue of whether or not the subsequent arrest by the law enforcement officer was legal or not. Counsel for appellant objected, inter alia, that the instruction was a comment on the weight of the evidence. The court then added one more sentence to the instruction: "The issue of whether arrest by the law enforcement officer was based on probable cause or not is still before you." Counsel for appellant maintained his earlier objection, but agreed to the additional sentence. The trial court overruled his objection. Appellant's single issue on appeal challenges the trial court's response as a comment on the weight of the evidence. When a trial court responds substantively to a jury question during deliberations, that communication amounts to an additional or supplemental jury instruction. See Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993). Accordingly, we review the court's response to the jury's question under the settled standard for reviewing jury instructions: we determine whether error exists; then, if we find error, we analyze that error for harm. See Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985); see also Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). For purposes of this appeal, we assume-without deciding-that the trial court's instruction was a comment on the weight of the evidence, and we proceed to the harm analysis. The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Ngo, 175 S.W.3d at 743-44. If the defendant has properly objected to the charge, then we must reverse if we find "some harm" to the defendant's rights caused by the charge error. Id. at 743. In this case, appellant properly objected to the court's supplemental instruction, so we review the record for some harm to appellant caused by the court's instruction. The instruction told the jury to focus on whether the conduct of Officer Beyer-not the conduct of Davis, the security guard-was based on probable cause. Appellant charges the instruction invaded the jury's province by speaking to Davis's credibility or the weight to be given his testimony. The State argues any error in giving that instruction was harmless because Davis's testimony actually weighed in favor of a finding of probable cause. We agree. Davis testified he observed appellant running, with a gun in his hand, from an area where gunshots had been fired. Davis also testified that he saw appellant attempt to drive and then pass out in his truck, which contained more alcohol. Certainly these observations supported an arrest for public intoxication. If the court's instruction was indeed a comment on the weight of the evidence that told the jury to disregard Davis's testimony, then the jury's determination of the legality of appellant's arrest would be based solely on Officer Beyer's testimony. But Officer Beyer did not see appellant hold the gun, attempt to drive, or pass out in his truck. Nor did she observe alcohol in appellant's truck. We conclude an instruction to disregard Davis's testimony would have benefitted the defense, not the State in this case. We conclude no harm befell appellant on account of the trial court's supplemental instruction. We overrule appellant's single issue. Conclusion
We affirm the judgment of the trial court.