Slaughter v. State

• Decision Date: 29 May 1991
• Docket Number: No. 09-90-010,09-90-010
• Citation: 809 S.W.2d 949
• Court: Texas Court of Appeals
• Parties: George SLAUGHTER, Appellant, v. The STATE of Texas, Appellee. CR.

Page 949

809 S.W.2d 949

George SLAUGHTER, Appellant, v. The STATE of Texas, Appellee.

No. 09-90-010 CR.

Court of Appeals of Texas,

Beaumont.

May 29, 1991.

Michael A. McDougal, Conroe, for appellant.

Robert Hill Trapp, Crim. Dist. Atty., Coldspring, for State.

Before WALKER, C.J., and BROOKSHIRE, and BURGESS, JJ.

OPINION

WALKER, Chief Justice.

This appeal comes to us from the granting of an Out-of-Time Appeal to appellant by the Court of Criminal Appeals, the mandate from said order having been issued on November 28, 1989. Appellant was convicted of the first degree felony offense of Aggravated Sexual Assault. The same jury that found appellant guilty assessed his punishment at fifteen (15) years imprisonment in the Texas Department of Corrections, now the Institutional Division of the Texas Department of Criminal Justice. Appellant brings to us a single point of error, viz:

The trial court committed error prejudicial to the appellant by commenting on the weight of the evidence in its charge to the jury.

Contained within the general instruction portion of the charge to the jury in the guilt/innocence phase of the trial is the following:

In determining the credibility of a witness, you may consider any matter in evidence that has a tendency in reason to prove or disprove the truthfulness of his/her testimony, including but not limited to the following:

His/her demeanor while testifying and the manner in which he/she testifies;

The character of his/her testimony;

The extent of his/her capacity to perceive, to recollect, or to communicate any matter about which he/she testifies;

The extent of his/her opportunity to perceive any matter about which he/she testifies;

The existence or nonexistence of a bias, interest, or other motive;

A statement previously made by him/her that is inconsistent with his/her testimony;

The existence or nonexistence of any fact testified to by him/her;

His/her attitude toward the action in which he/she testifies or toward the giving of testimony.

Appellant's counsel on appeal candidly points out in his brief that appellant's trial counsel did not object to the portion of the charge of which appellant now complains.

We recognize that TEX.CODE CRIM.PROC.ANN. art. 36.13 (Vernon 1981) provides, "Unless otherwise provided in this Code, the jury is the exclusive judge of the facts, but is bound to receive the law from the court and be governed thereby," and that TEX.CODE CRIM.PROC.ANN. art. 38.04 (Vernon 1979) provides:

The jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony, except where it is provided by law that proof of any particular fact is to be taken as either conclusive or presumptive proof of the existence of another fact, or where the law directs that a certain degree of weight is to be attached to a certain species of evidence.

It is proper for a trial court to instruct the jury that the credibility of witnesses and the weight to be given their testimony are questions within their exclusive province. Barrow v. State, 71 Tex. Crim. 549, 160 S.W. 458 (App.1913). Appellant contends, however, that TEX.CODE CRIM.PROC.ANN. art. 36.14 (Vernon 1981) specifically provides, in pertinent part, that the trial court's charge to the jury should set forth only, "the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury." As further authority, appellant cites Daggett v. State, 39 Tex. Crim. 5, 44 S.W. 842 (1898); and Shields v. State, 39 Tex.Crim. 13, 44 S.W. 844 (1898).

The State's brief responds that both Daggett and Shields are founded upon the earlier case of Harrell v. State, 37 Tex. Crim. 612, 40 S.W. 799 (1897). The State's brief makes the following observation:

The Court in Harrell set forth the principle to follow in such cases:

"... it makes no difference whether the particular witness is named in the charge or not ... the same rule applies whether the witness be pointed out and named in the charge, or whether the charge does not in terms point out the witness by name, but states conditions that can only apply to a certain witness or witnesses. (emphasis theirs).

In reading the Harrell case we see that the Court of Criminal Appeals was presented with deciding the propriety of a jury instruction remarkably similar to the one in the instant case in that both are virtually neutral in content and neither singles out a particular witness nor particular pieces of evidence as the focus of the instruction. Nevertheless, the Court in Harrell admitted it had erred in past cases in ruling such content-neutral instructions were not comments on the weight of the evidence by trial courts. The Court in Harrell fully embraced the reasoning used in the case of Muely v. State, 31 Tex.Crim. 155, 19 S.W. 915 (1892). The Court in Harrell stated:

If it be improper to state to the jury that, in passing upon the testimony of a certain witness (naming him), they will consider his interest in the result, it is equally improper to state in general terms, in passing on the credit of witnesses, that they will consider the interest of the witnesses. It might be that in some cases, where interest did not appear on behalf of any of the witnesses, such a charge would not be cause for reversal; but certainly where a defendant testifies on his own behalf, and the jury are told, in passing on the credit of witnesses, to consider the interest of the witnesses, it would be ignoring the common sense of the jury to hold them incapable of making the application.

Harrell, supra, 40 S.W. at 801.

As the Court of Criminal Appeals appears to have wholeheartedly embraced the reasoning of the Court of Appeals in Muely, the following, taken from Muely, appears to squarely address the issue:

It could not have been intended by the lawmaking power in this state that the court should by its charge furnish to the jury tests by which to judge the credibility of the witnesses testifying before them. In the first place, in the very nature of things, the court could not well do this. The field is so wide in which the circumstances are to be gathered on which the jury are to base their opinion that the court could not conveniently cover it in a charge. Besides, our system of jury trials proceeds on the theory that jurors are men of intelligence, and that the rules of reason and common observation are known to them, which will enable them to determine the credibility of the witnesses, and the weight to be given to their testimony, and that in reference to these matters they need no instructions from the court, unless the law has given a certain weight to some fact before them, or given to it a particular bearing affecting the credibility of some witness testifying before them. But, in the second place, the legislature by a positive statute has prohibited the court from charging upon the weight of the testimony.

Muely, supra, 19 S.W. at 916. Muely also provided that the law in effect at the time stated:

[T]he jury are the exclusive judges of the weight of the testimony and the credibility of the witnesses, and no interference by the court with the prerogative of the jury in these respects can be allowed.

Muely, supra, 19 S.W. at 916.

Possibly the most interesting aspect of both Harrell and Muely, not to mention Daggett and Shields is that, from all appearances, they are all still good law. In fact, both Harrell and Shields are cited as authority in Salamy v. State, 117 Tex.Crim. 465, 37 S.W.2d 1028 (1931), which condemned the following jury charge language:

The court charges and instructs the jury that they are the sole judges of the facts in the case and the weight and credibility of the...