                            NUMBER 13-09-00046-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


GILBERTO VILLARREAL,                                                        Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 377th District Court
                         of Victoria County, Texas.


                         MEMORANDUM OPINION

            Before Justices Rodriguez, Garza, and Benavides
               Memorandum Opinion by Justice Rodriguez

      Appellant Gilberto Villarreal challenges his conviction by a jury for indecency with

a child, for which he was sentenced to ten years' imprisonment. See TEX . PENAL CODE

ANN . § 21.11(a)(1) (Vernon Supp. 2009). By one issue, Villarreal complains that the trial

court committed reversible error by commenting on the weight of the evidence. See TEX .

CODE CRIM . PROC . ANN . art 38.05 (Vernon 1979). We affirm.
                                                 I. BACKGROUND 1

         On April 4, 2008, Villarreal was indicted for indecency with a child as follows: "that

[Villarreal] . . . did then and there, with the intent to arouse or gratify the sexual desire of

[Villarreal], intentionally or knowingly engage in sexual contact with [J.B.] by touching the

genitals of [J.B.], a child younger than 17 years . . . ." Villarreal pleaded not guilty, and the

case proceeded to a jury trial on November 4, 2008.

         At trial, the State presented the testimony of, among others, eight-year-old J.B. and

her brother, B.B.2 At the conclusion of J.B.'s testimony, the trial judge stated, "[J.B.,] . . .

you are pretty brave and you can step down." After B.B.'s testimony, the judge similarly

commented, "[B.B.], I think you're pretty brave and you can step down. If you want to sit

with your mom and dad you can do that."3

         After considering the evidence, the jury returned a guilty verdict, convicting Villarreal

of indecency with a child. The jury sentenced Villarreal to ten years' confinement in the

Institutional Division of the Texas Department of Criminal Justice and assessed a $10,000

fine. This appeal ensued.




         1
           Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite
them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See
T EX . R. A PP . P. 47.4.

         2
             Although B.B.'s exact age does not appear in the record, he testified that he is in elem entary school.

         3
           After B.B.'s testim ony and the judge's statem ent, the trial court excused the jury for its m orning break.
After the jury left the courtroom , Villarreal objected as follows:

         Judge, at this tim e the defendant would object to the Court's m aking a com m ent–-after the
         second witness testified the Court m ade the com m ent that the Court felt that that witness was
         very brave in their [sic] testim ony. The sam e com m ent was m ade on the last witness, the
         child witness, in regards to being a brave person, and we feel that that am ounts to a
         com m ent on the weight of the evidence and so we would object to the Court in that respect.
         W e would ask for a m istrial at this point.

The trial court denied Villarreal's m otion.

                                                           2
                              II. COMMENTS ON THE EVIDENCE

       Article 38.05 of the code of criminal procedure provides that:

       In ruling upon the admissibility of evidence, the trial 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.; see Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003) (holding that a trial

judge must refrain from making any remark calculated to convey his opinion of the case

because jurors give special and peculiar weight to the language and conduct of the trial

judge). To comply with this directive, a trial judge must limit his or her comments from the

bench and must maintain an attitude of impartiality throughout the trial. Strong v. State,

138 S.W.3d 546, 552 (Tex. App.–Corpus Christi 2004, no pet.); Hoang v. State, 997

S.W.2d 678, 680 (Tex. App.–Texarkana 1999, no pet.). "A trial court improperly comments

on the weight of the evidence if it makes a statement that implies approval of the State's

argument, that indicates any disbelief in the defense's position, or that diminishes the

credibility of the defense's approach to its case." Hoang, 997 S.W.2d at 681 (citations

omitted).   And to constitute reversible error, "any unauthorized comments must be

reasonably calculated to benefit the State or prejudice a defendant's rights." Strong, 138

S.W.3d at 552 (citing Guzman v. State, 923 S.W.2d 792, 799 (Tex. App.–Corpus Christi

1996, no pet.)).

                                      III. DISCUSSION

       By his sole issue, Villarreal complains that the trial court committed reversible error

by commenting on the weight of the evidence. Specifically, Villarreal asserts that the trial



                                              3
judge's statement to B.B. after his testimony that B.B. was "pretty brave" was an improper

compliment to the witness that amounted to a direct comment on the weight of the

evidence and served only to "show the Judge's sympathy and intrinsic belief that the

minor[] [was] telling the truth." Villarreal argues that the comment was material because

the credibility of both child witnesses was fundamental to the State's case and, accordingly,

prejudiced his right to a neutral and impartial judge. We disagree with Villarreal's initial

contention—the trial judge's statement to B.B. was not an improper comment on the weight

of the evidence.

       "A judge can lawfully provide guidance and manage the presentation of evidence

from the bench without abandoning his role as an independent arbiter." Id., 138 S.W.3d

at 552 (citing TEX . R. EVID . 611(a)). Here, it is clear from the record that the trial judge's

comment to B.B. was part of a larger effort to make the child witness comfortable in the

courtroom. Before B.B. began testifying, the trial judge engaged in the following colloquy

with the child:

       The Court:            [B.B.].

                             Hi, [B.B.].

       The Witness:          Hi.

       The Court:            How are you?

       The Witness:          Good.

       The Court:            What's going to happen now is you see the guy
                             standing up there, Mr. Tyler [the prosecutor]?

       The Witness:          Yes.

       The Court:            He's going to ask you some questions and you're–-you
                             have to answer those questions.

                                               4
               And then you see Mr. Luna [defense counsel] over
               here, see the gentleman right here?

The Witness:   Yes.

The Court:     If he wants to, he can ask you some questions, but he
               may not. I don't know what he'll do. Okay?

               It's really important that you not talk while Mr. Tyler is
               talking, because the lady in the brown suit right there in
               front of you, see her fingers working there, she's writing
               down everything that we say, and if two of us start
               talking at the same time then she can't do that. Okay.

The Witness:   (Nods head affirmatively.)

The Court:     You have to say yes.

The Witness:   (Nods head affirmatively.)

The Court:     Yes?

The Witness:   Yes.

The Court:     Okay. And she also can't write down when you nod
               your head and shake your head, okay? So you have to
               say yes or no or some other kind of answer. All right?

The Witness:   Okay.

The Court:     You see the lady in the blue denim jacket back there in
               the jury box?

The Witness:   Uh-huh.

The Court:     You have to talk loud enough for her to hear you.

The Witness:   Okay.

The Court:     So when [J.B.] comes in your room and messes with
               your stuff, you might have to talk that loud, okay? . . .
               Do you talk loud to her when she does that?

The Witness:   Uh-huh.

                                5
        The Court:                Okay. So if you–-you have to talk loud so that–-just like
                                  you would talk to [J.B.] if she was messing with your
                                  stuff and you didn't want her to. Okay.

        The Witness:              Okay.

        The Court:                Will you do that for me?

        The Witness:              Yes.[4]

        In the context of the foregoing, we cannot conclude that the trial judge's comment

to B.B. that he was "pretty brave" and, if he wanted, could now go sit with his mom and dad

implied approval of the State's argument, indicated disbelief of the defense's position, or

diminished the credibility of the defense's approach. See Hoang, 997 S.W.2d at 681. The

trial judge's comment cannot be read separately from the understanding that B.B. was an

elementary-school-age child at the time of trial. See In re J.G., 195 S.W.3d 161, 178 (Tex.

App.–San Antonio 2006, no pet.) (noting that the trial judge's statement to a child witness

that the witness had done "very good" could not be properly understood without also

considering the child's age at the time of his testimony). When considered together, the

trial judge's conversation with B.B. prior to his testimony and final comment to B.B. before

he left the stand were clearly meant to assist a child witness and ease his apprehensions

about testifying. See id. In so commenting, the judge maintained an impartial attitude and

did not abandon his role as the neutral adjudicator in the case. See Strong, 138 S.W.3d

at 552; Hoang, 997 S.W.2d at 680. We therefore conclude that the trial judge's statement




        4
         The trial judge had a sim ilar conversation in a sim ilar tone with J.B. before her testim ony. He
introduced her to both the prosecutor and Villarreal's attorney and explained that J.B. had to speak loudly and
answer the questions audibly so that the court reporter could record the proceedings.

                                                      6
to B.B. was not an improper comment on the weight of the evidence. See TEX . CODE CRIM .

PROC . ANN . art. 38.05. Villarreal's sole issue is overruled.5

                                                IV. CONCLUSION

         The judgment of the trial court is affirmed.



                                                                         NELDA V. RODRIGUEZ
                                                                         Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the
22nd day of April, 2010.




         5
          By his first issue, Villarreal also com plains of the sim ilar com m ent m ade by the trial judge to J.B.
However, Villarreal failed to tim ely object to this com m ent. It is true that in som e circum stances, a trial court's
com m ent on the evidence can be fundam ental error of constitutional dim ension, which would require no
objection to preserve the issue for appellate review. See Blue v. State, 41 S.W .3d 129, 131-32 (Tex. Crim .
App. 2000) (plurality op.) (holding that where the trial judge's com m ents tainted the court's presum ption of
innocence before the jury, the com m ents were fundam ental errors of constitutional dim ension requiring no
objection). Here, the com m ent m ade by the trial judge to J.B. following her testim ony was not indicative of
bias or prejudice and did not otherwise taint Villarreal's presum ption of innocence; the judge m ade no rem ark
regarding Villarreal's guilt or innocence. See Murchison v. State, 93 S.W .3d 239, 262 (Tex. App.–Houston
[14th Dist.] 2002, pet. ref'd) (holding that Blue does not apply where the trial court's com m ents do not am ount
to a predeterm ination of the defendant's guilt and a defendant m ust still object to preserve the issue for
appeal); see also Anderson v. State, No. 13-03-00493-CR, 2004 W L 3211567, at *2 (Tex. App.–Corpus Christi
July 1, 2004, no pet.) (m em o. op., not designated for publication) (sam e). Therefore, Villarreal was required
to object, and his failure to do so precludes our review of the issue on appeal. See T EX . R. A PP . P. 33.1(a);
Gibbs v. State, 7 S.W .3d 175, 178 (Tex. App.–Houston [1st Dist.] 1999, pet. ref'd) (holding that a defendant
does not preserve his right to com plain of a trial court's com m ents on evidence if he fails to object to the
court's com m ents); Lookingbill v. State, 855 S.W .2d 66, 77 (Tex. App.–Corpus Christi 1993, pet. ref'd).
Regardless, we note that even if Villarreal had preserved error, the foregoing law and analysis regarding the
trial judge's com m ent to B.B. would apply. See In re J.G., 195 S.W .3d 161, 178 (Tex. App.–San Antonio
2006, no pet.); Strong v. State, 138 S.W .3d 546, 552 (Tex. App.–Corpus Christi 2004, no pet.).

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