Hoang v. State

• Decision Date: 11 June 1999
• Parties: (Tex.App.-Texarkana 1999) NHAN THU HOANG, Appellant v. THE STATE OF TEXAS, Appellee NO. 06-98-00187-CR
• Court: Texas Court of Appeals

Page 678

997 S.W.2d 678 (Tex.App.-Texarkana 1999)

NHAN THU HOANG, Appellant v. THE STATE OF TEXAS, Appellee

NO. 06-98-00187-CR

IN THE COURT OF APPEALS SIXTH APPELATE DISTRICT OF TEXAS AT TEXARKANA

Submitted June 10, 1999

Decided June 11, 1999

On Appeal from the 252nd Judicial District Court Jefferson County, Texas, Trial Court No. 71658

Before Cornelius, C.J., Grant and Ross, J.J.

OPINION

Opinion by Justice Grant

Nhan Tu Hoang (referred to in the testimony as John Hoang) appeals his conviction for the murder of Sarah Kathryn Arceneaux. Hoang pleaded guilty, and trial was to a jury on punishment. The jury assessed punishment at sixty years' confinement in the Institutional Division of the Texas Department of Criminal Justice.

Hoang contends the trial court committed reversible error by the cumulative harm of the court's comments on the evidence, in violation of Article 38.05 of the Texas Code of Criminal Procedure.¹ Hoang contends that the overall effect of the trial court's comments was to demean his defensive theory and prevent his trial counsel from persuading the jury to assess a lesser punishment.

Hoang, Steven Tran, and some of their friends had been drinking on the night of the offense. Hoang had consumed about seven or eight beers, and Tran had consumed nine or ten beers. Hoang, Tran, and another friend decided to rob an elderly lady living close by. Tran tried unsuccessfully to kick her door in, and the three ran back to Tran's house. While at Tran's house, Hoang and Tran got a .22 caliber rifle that Tran kept in the attic. The two left and went to another house. They both tried to kick in the door at the second house, but were unable to do so. Hoang fired shots at this house as they left. They went back to Tran's house and reloaded the gun. They heard some dogs barking at Sarah Arceneaux's house and decided to go shoot them. Upon arrival at her house, Tran shot at the dog near the garage, then gave the gun to Hoang, who went to the front of the house and shot at another dog tied to the fence. Once the gun was emptied, they went back to Tran's house, reloaded the first gun, and got another.22 caliber rifle. Tran, Hoang, and one of their friends returned to the victim's house. Hoang testified that as he was walking to the front of the house, he was startled by a woman leaning over her dog. Hoang testified he was scared and started shooting. Hoang shot the woman five times, killing her.

In his sole point of error, Hoang contends the trial court committed reversible error by commenting on the weight to the evidence in violation of Article 38.05 of the Texas Code of Criminal Procedure. Article 38.05 of the Texas Code of Criminal Procedure provides that in ruling upon the 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.² The trial judge shall maintain an attitude of impartiality throughout the trial.³ To the jury, the language and conduct of the trial court have a special and peculiar weight.⁴

Hoang did not object to the judge's statements. Thus, the State contends any error was waived. The general rule is that, in order to preserve for appellate review a complaint about a trail judge's comments during trial, counsel must object or otherwise bring the complaint to the trial judge's attention so the judge has an opportunity to correct the error.⁵ After reviewing the complete record, we conclude the general rule applies and, therefore, Hoang did not preserve any error for review.⁶

Rule 103(d) of the Texas Rules of Evidence provides that in a criminal case, "nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the [trial] court."⁷ Hoang argues we should review the judge's comments for fundamental error even though he did not object to them. While Rule 103(d) may appear to apply to the instant case, it does not. The Texas Code of Criminal Procedure and not the Texas Rules of Evidence prohibits the judge from commenting upon the weight of the evidence. Therefore, because the error Hoang complains of is contained in the Texas Code of Criminal Procedure and not the Texas Rules of Evidence, we are precluded from reviewing it under Rule 103(d).

We recognize that some cases predating the new appellate rules hold that a trial judge's comments may be reviewed for fundamental error in the absence of an objection.⁸ Recently, in the 1998 case of Blue v. State,⁹ the majority held the appellant had waived error when he failed to object to the trial judge's comments. The Blue decision was a 5-4 decision, and two of the four dissenting justices stating that the trial judge's errors should have been reviewed for fundamental error in the absence of an objection.¹⁰ Because the Court of Criminal Appeals has not decided the issue, we shall review the trial judge's comments to determine whether they were improper comments on the weight of the evidence in addition to our ruling that error was not preserved.

A trial court improperly comments on the weight of the evidence if it makes a statement that implies approval of the State's argument,¹¹ that indicates any disblief in the defense's position,¹² or that diminishes the credibility of the defense's approach to its case.¹³ Other factors to be evaluated are whether the remarks by the trial court were made in the presence of the jury¹⁴ and whether the trial judge's comments, however impartially they may have been made, may have led the jury to infer the judge's own opinion of the merits of the case.¹⁵ We also consider the consequences that probably resulted from the trial court's comments to determine whether the comments prejudiced the defendant's rights.¹⁶ We will first examine whether the trial court's comments were improper comments on the weight of the evidence. Hoang point us to six places in the record where he contends the judge improperly commented on the weight of the evidence.

Hoang's defensive theory was that he was startled when he saw the decedent leaning over her dog and that he just started shooting at her because he was scared. Hoang contends the trial court improperly commented on the weight of the evidence when it, in the absence of any objection by the State, interjected that Hoang was being repetitious while he was developing this defensive theory. During the cross-examination of Ron Robertson, a detective with the Port Arthur police department, the trial court admonished defense counsel to "[q]uit being repetitious." The record reflects that Hoang's counsel had questioned the witness on this theory six times prior to the question that prompted the trial court's admonishment. Rule 611(a) of the Rules of Evidence provides that the court shall exercise reasonable control over the mode and order of interrogating witness and presenting evidence so as to (1) make the presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.¹⁷ Hoang's contention that the trial court's statement was an improper comment on the weight of the evidence is without merit.

Next, Hoang contends the trial court corrected this method of presenting his defense during the following direct examination of Hoang's father:

Q: Has John[Hoang]always been a very quiet type of young man?

A: Yes.

Q: If you were to describe a leader, how would you describe a leader? Do you understand what I'm asking you?

THE COURT: I think you're making it too difficult. Why don't you rephrase it?

The record reflects that Hoang's father understood some English and that the trial court allowed his daughter to interpret the questions for him if he felt it necessary. After the trial court asked defense counsel to rephrase the question, the following exchange took place:

Q: Has John[Hoang] always been more of a follower?

A: (Interpreter) Yes, he is.

Q: In other words, he is tended to be led by other people.

A: (Interpreter) Yes.

We do not find that the trial court's statement undermined Hoang's ability to present his defense. First, Hoang was allowed during the subsequent questioning to show that he often followed others' lead, and second, the trial court's statement actually helped defense counsel elicit the testimony Hoang wanted by requiring defense counsel to present the question in a more understandable manner. We find no merit in Hoang's contention that this statement by the trial court was a comment on the weight of the evidence.

Hoang also contends the trial court prevented him from establishing the background, knowledge, and experience of a former F.B.I. agent and minister, undermining the minister's opinions on Hoang's rehabilitation. In response to a question from defense counsel, the minister talked at length about the alcohol treatment program with which he was involved and some of the things he had observed while working as an F.B.I. agent, before being interrupted by the trial court. The following is the last paragraph of the minister's testimony, and the court's admonishment to get to the point.

Q: ...Most of us that teaches[sic] have come into church basically through that sort of thing, and basically the police work and the F.B.I. is what caused me to change my opinion. After meeting a lot of white slave traffic violators and working a few plane crashes, you know, seeing what happens to people when they hit the ground wide open in a commercial jetliner, bank robberies, bank burglaries--I'm not Sherlock Holmes, but through my investigation I arrested a bank robber one day and talked to him and--

THE COURT: Wait. Wait. We're going to be going until 10:00 o'clock tonight. Let's get to the point.

Prior to the trial...