Moore v. State
| Decision Date | 18 May 2021 |
| Docket Number | NO. 14-19-00466-CR,14-19-00466-CR |
| Court | Texas Court of Appeals |
| Parties | Derek Nathaniel MOORE, Appellant v. The STATE of Texas, Appellee |
Carmen Mae Roe, Houston, for Appellant.
Cory Stott, Houston, for Appellee.
Panel consists of Justices Wise, Bourliot, and Spain.
More than a century ago, the Court of Criminal Appeals of Texas noted that 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." Lagrone v. State , 84 Tex.Crim. 609, 209 S.W. 411, 415 (Tex. Crim. App. 1919) (quoted in Brown v. State , 122 S.W.3d 794, 798 (Tex. Crim. App. 2003) ). Since 1879, the Code of Criminal Procedure has prohibited the trial court from commenting on the weight of the evidence or otherwise making any remark calculated to convey its opinion of the case to the jury. Tex. Code Crim. Proc. Ann. art. 38.05 (current version).1
This case involves such prohibited comments. The case revolves around allegations of family-violence assault made by the complainant against appellant, her husband. At trial, both sides called this case a "he said/she said" case. She says he pinched her nose, covered her mouth, and pressed her face into a couch cushion, impeding her breathing for approximately 15 seconds; he says he did not. As there were no eyewitnesses and no conclusive physical evidence, the credibility of the complainant was essential to the State's case.
During the cross-examination of the complainant, however, the trial court injected its opinions into the fray. The trial court made a string of comments casting doubt on a particular line of impeachment questioning by appellant. Most egregiously, the trial court fabricated hypotheticals in support of the complainant's account. These comments clearly exceeded the bounds of article 38.05's prohibition on commenting on the weight of the evidence. Moreover, although the trial court gave a requested instruction to disregard, the comments were harmful. The error occurred during cross-examination of the State's key witness, the comments were repeated and egregious, and the instruction to disregard was vague and perfunctory. We conclude the trial court committed reversible error given the specific facts of this case.
A jury convicted appellant of the third-degree felony of assaulting the complainant, his wife, by impeding her normal breathing. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(B). The trial court assessed punishment at ten-years imprisonment, which the trial court then suspended, placing appellant on community supervision for six years. Tex. Penal Code Ann. § 12.34 ; Tex. Code Crim. Proc. Ann. art. 42A.053. Appellant brings three issues on appeal. In issue one, appellant argues the trial court committed reversible error by impermissibly commenting on the weight of the evidence. We sustain issue one, reverse the trial court's judgment, and remand the case for a new trial.
Appellant and the complainant were a married couple in the process of divorcing. Appellant entered the family home early one morning in April 2018. The complainant was sitting on a couch on the first floor of the house.
The incident in question was recorded by an in-home camera system. At the start of the video, appellant and the complainant are talking with a light on. Appellant then turned the light off, after which the actions of appellant and the complainant are not visible, though the audio continued. The complainant screamed, followed by a mostly silent period lasting approximately 15 seconds. The complainant then screamed again, after which the complainant is heard breathing heavily. During the video, a small, sometimes-moving light is seen at times in the area where appellant and the complainant were located before that area went dark.
The complainant testified that, in the darkness, appellant came over to the couch she was sitting on and pinched her nose shut and covered her mouth with his hands. He held her against the couch cushions such that she was unable to breathe. The complainant testified that the first scream heard on the video occurred when appellant began obstructing her breathing, and her heavy breathing occurred after he let go approximately 15 seconds later.
On cross-examination, appellant's trial counsel asked the complainant numerous questions about the light that is seen moving in the video. The complainant agreed that it appeared to be a cell-phone light2 and stated that she had been holding a cell phone at the start of the incident. Appellant's trial counsel then questioned the complainant about the movement patterns of the cell-phone light, attempting (as he later explained to the trial court) to show that the movement of the light was inconsistent with the complainant's account of appellant impeding her breathing. The following exchange occurred in the presence of the jury:
During a break in the complainant's testimony, and outside of the presence of the jury, appellant's trial lawyer moved for a mistrial based on the trial court's comments. The trial court denied the motion.
Appellant later testified. He denied that he placed his hands on the complainant's nose and mouth or that he had impeded her breathing. Rather, appellant testified that, after the video went dark, he picked up the complainant's cell phone to see if it was unlocked (and to look through it if it were), after which he and the complainant struggled over the phone.
In issue one, appellant complains that the trial court's comments during appellant's cross-examination of the complainant were improper comments on the weight of the evidence in violation of Code of Criminal Procedure article 38.05.3 Tex. Code Crim. Proc. Ann. art. 38.05. Article 38.05 provides:
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.
Id. In evaluating a claimed violation of article 38.05, we first determine whether the trial court's comments were, in fact, improper under the article. Simon v. State , 203 S.W.3d 581, 590 (Tex. App.—Houston [14th Dist.] 2006, no pet.). If so, we must then decide whether the comments were material. Id. at 592. If the comments were both improper and material, we address harm, using the standard for non-constitutional harm set forth in Texas Rule of Appellate Procedure 44.2(b). Tex. R. App. P. 44.2(b) ; Proenza v. State , 541 S.W.3d 786, 801 (Tex. Crim. App. 2017).
We first address whether the trial court's statements were improper comments on the weight of the evidence. Here, the trial court made a series of comments questioning the relevance of appellant's impeachment attempt, including stating, "I don't know where you're going with this," "I don't understand where you're going with this," and "You've asked her this question so many times." More egregiously, the trial court twice suggested scenarios corroborating the complainant's account. After appellant's trial counsel explained his theory that the movement (or lack thereof) of the cell-phone light was inconsistent with the complainant's testimony that appellant was assaulting her, the trial court stated, "It [the cell phone] could be on a table or something over there." When appellant's trial counsel explained that the light moved at other times, the trial court again conjectured, "Maybe shook [sic] the room or the table or something[.]"4
These comments, particularly the comments in which the trial judge argues hypothetical scenarios on the complainant's behalf with appellant's trial counsel, go well beyond article 38.05's mandate that the judge "shall simply decide whether or not [evidence] is admissible" without further comment. Moreover, our court has explained that the trial court improperly comments on the weight of the evidence under article 38.05 if it (1) makes a statement that implies approval of the State's argument, (2) indicates disbelief in the defense's position, or (3) diminishes the credibility of the defense's approach to the case. Simon , 203 S.W.3d at 590. The trial court's repeated questioning of the relevance of appellant's line of...
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