Unkart v. State
| Decision Date | 05 June 2013 |
| Docket Number | No. PD–0628–12.,PD–0628–12. |
| Citation | 400 S.W.3d 94 |
| Parties | Rodney Gale UNKART, Appellant v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
OPINION TEXT STARTS HERE
Gale Warren, Stephenville, TX, for Appellant.
Lisa McMinn, State Prosecuting Attorney, Austin, TX, for the State.
During voir dire, the trial judge said that he personally would want to testify if accused of a crime but admonished the prospective jurors that others might have a different perspective, that a defendant could have good reasons not to testify that were unrelated to guilt, and that the law prohibited the jurors from holding a defendant's failure to testify against him. Defense counsel belatedly requested a mistrial but did not ask for an instruction to disregard the trial judge's comments. Holding that the comments constituted fundamental error under Blue,1 the court of appeals reversed the conviction. We disagree with the court of appeals's conclusion that the trial judge's comments constituted fundamental error. We further conclude that appellant's request for a mistrial did not preserve error because any harm flowing from error in this case could have been cured by an instruction to disregard and in fact was cured by the totality of the trial judge's instructions.
During his oral instructions to the jury at the beginning of voir dire, the trial judge discussed the right to remain silent when a citizen encounters law enforcement “on the street.” The trial judge then discussed a defendant's right not to testify at trial:
COURT: ... [T]he right to remain silent extends all the way to the trial. The defendant does not have to testify. He or she has the right to remain silent. It continues throughout the trial. They have the right to testify if they want to, but it's up to them and their counsel to advise them and decide what they want to do.
This is an area of the law that I find that people have opinions about, and there's nothing wrong with that. It's a great country that we live in. But my opinion about that doesn't jive with everyone else's opinion, and I want to go into that to discuss with you how important your frame of mind, your willingness to accept this instruction that I'm about to give you because, you know, I think-praise God, I haven't been charged with a crime. But if I were, then I think I would probably want to get up and tell my side. It's just my nature. I would want to probably say my point of view on the thing or my version of the facts, but that's just me.
And you may have the same opinion that Judge Ray has, or not; and it's okay, subject to one condition, that is, that no matter what your opinion on the matter is, that you can follow the instruction that follows. If the defendant decides not to testify, you cannot refer or allude to that fact during your deliberations. In other words, if you're on the jury, you can't go back in the jury room and say, You can't even refer to that fact, and you cannot consider that decision to remain silent as a circumstance against the defendant for any reason whatsoever.
Now, the right to remain silent is in the Bill of Rights. I don't know if y'all know it, but the Bill of Rights are referred to as the first ten amendments to the United States Constitution. I mean, we're talking top ten, folks. This is one of the biggies, the right to remain silent and not give evidence that can be used against you; and it's important. And when you stop and think about this instruction, how important would that be if there was some punishment or sanction for exercising—in other words, if they could hold it against you or use it against you for not testifying, for exercising that right?
As a matter of fact, I've been at this for 37 years trying cases in this very courtroom and many others throughout the State; and I find that there are a lot of reasons why someone may not want to testify that don't have a darn thing to do with whether he or she is guilty or not guilty.
Some people—a lot of people that I know and you wouldn't believe it; but I used to be that way myself. It's that the area of public speaking, it's just not their bag. They are nervous. They tighten up. They lock up. Their body language is awful. They break out in a sweat. Their complexion changes colors. And some people just absolutely are put off by having to talk in a room full of people, especially people that they don't know, especially if you're the one who's at risk. You're the one that's accused of something.
And what we have found is that some people just don't present themselves well, and it may be a good decision for them to not get up there and have the jury read a bunch of wrong stuff into their body language by—caused by this fear of public speaking. And there are many, many others. I don't want to go into every one I've come across.
The point is, there's a lot of reasons why somebody might not testify that don't have anything to do with whether he or she is guilty or not guilty, and the long and short of it is, if you are instructed, as I did a few minutes ago and that is the law, you can't be a juror unless you can tell us under oath that you can follow that instruction.
So here's the question. Having received that instruction, is there anyone who cannot follow that instruction? That you have an opinion about this that is so strong that you can't set aside your personal feelings and promise us all under oath that you can follow Judge Ray's instruction, that you cannot consider that as a circumstance against the defendant for any purpose whatsoever. Anybody have a problem with that? You just feel so strongly about it that, by golly, if somebody doesn't testify, I'm going to assume they're guilty. Anybody feel that way?
(No response.)
COURT: Anybody that has any problem with that discussion or that instruction, raise your hands.
(No response.)
COURT: Okay. For the record, no hands are up.2
Defense counsel did not object to any of these comments at the time they were made. Voir dire continued that day, and a jury was selected and sworn.
The next morning, defense counsel filed a written motion for mistrial, complaining about the portion of the trial judge's comments that we have italicized above. However, defense counsel stated on the record that he was not asking for an instruction to disregard:
I'm not asking for the Court to issue an instruction to the jury to disregard that statement, because I feel it'd be ringing the bell twice; and I don't think it could cure the defect that the defendant has complained of. I just wanted that on the record. That's why I'm not asking the Court for an instruction.
The trial judge denied the motion for mistrial.
Subsequently, the jury convicted appellant on two controlled-substance counts 3 and sentenced him to twelve years' imprisonment and a $10,000 fine on each count.
In his first issue on appeal, appellant contended that the trial judge improperly commented on his right not to testify and thereby vitiated his presumption of innocence. Relying in part upon Blue, the court of appeals agreed, holding that the comments vitiated the presumption of innocence and “were fundamental error of constitutional dimension.” 4 The appellate court found that because “the trial judge indicated that he would testify if he were a defendant, and appellant did not testify, the comments of the trial judge diminished the credibility of the defense's approach to the case.” 5 The court of appeals also found that, “though the trial judge gave additional instructions on the right to remain silent after his comments, there remained the strong possibility that a member of the jury may have wondered why appellant, unlike the trial court, did not testify.” 6 And the court of appeals held that “[a] further instruction by the trial judge concerning his comments would not have cured the problem.” 7 Consequently, the court of appeals reversed the conviction and remanded the case for a new trial. 8
In its discussion, the court of appeals did not mention that the lead opinion in Blue, containing the presumption-of-innocence rationale, was a plurality opinion.9
The State contends before us that the court of appeals was mistaken in holding that the trial judge's comments constituted fundamental error under Blue, and the State further contends that appellant has forfeited his complaint. 10
Most appellate complaints must be preserved by a timely request for relief at the trial level.11 The “traditional and preferred procedure” for seeking relief at trial for a complaint that must be preserved is “(1) to object when it is possible, (2) to request an instruction to disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a party thinks an instruction to disregard was not sufficient.” 12 A party may skip the first two steps and request a mistrial, but he will be entitled to one only if a timely objection would not have prevented, and an instruction to disregard would not have cured, the harm flowing from the error.13 But some appellate complaints do not have to be preserved by a timely request for relief at the trial level.14
Ordinarily, a complaint regarding an improper judicial comment must be preserved at trial.15 In Blue, however, we granted relief on an improper-judicial-comment complaint that was not preserved at trial, though we were unable to agree upon a rationale.16 The trial judge had apologized to the jurors about the delay in the case, telling them that the defendant was still deciding whether to accept the State's plea offer or go to trial.17 The trial judge further told the jurors, “I prefer the defendant to plead,” and “[W]e were all trying to work toward that and save you time and cost of time.” 18 A plurality of the Court decided that the trial judge's remarks vitiated the...
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...move to quash the venire. Nelson. Improper comments made by the trial court to the venire are subject to harm analysis. Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. The reviewing court will view the voir dire in its entirety in determining if the defendant has been harmed. Unkart. Vo......
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...move to quash the venire. Nelson. Improper comments made by the trial court to the venire are subject to harm analysis. Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013). The reviewing court will view the voir dire in its entirety in determining if the defendant has been harmed. Unk......