      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00730-CR



                             George Robert Powell III, Appellant

                                                v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
            NO. 63,436, HONORABLE JOE CARROLL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted George Robert Powell III of aggravated robbery. See Tex. Penal

Code Ann. § 29.03 (West 2003). On appeal, Powell argues that the trial judge impermissibly

commented on the weight of the evidence by instructing the jury that two defense witnesses had

violated Texas Rule of Evidence 614 (“the Witness Rule” or “the Rule”). See Tex. Crim. Proc. Code

Ann. art. 38.05 (West 1979) (trial judge may not comment on weight of evidence). Powell argues

that the judge’s comment was fundamental error requiring reversal. We affirm the conviction.


                     FACTUAL AND PROCEDURAL BACKGROUND

               Powell was charged with aggravated robbery of a 7-Eleven convenience store. The

State alleged that Powell entered the store, brandished a pistol, and ordered the clerk to give him

money out of the register. Powell pleaded not guilty and went to trial. Before the trial commenced,

the judge swore in the State’s witnesses and instructed them as follows: “You all know what the
‘Witness Rule’ is, I’m sure. The Witness Rule requires that you wait outside or remain outside the

hearing of the jury and of the witnesses, and don’t discuss your testimony with anyone and don’t

permit anyone to discuss testimony with you.” Neither party requested this instruction; rather, the

judge gave it sua sponte. See Tex. R. Evid. 614 (court may invoke Rule of its own motion).

               During its case in chief, the State called the clerk and manager of the 7-Eleven store

as witnesses. Both identified Powell as the man who robbed their store. The State then called two

clerks from Mickey’s, another area convenience store that was robbed the day before the 7-Eleven.1

The Mickey’s clerks identified Powell as the man who robbed their store. They also testified that

they had watched the videotape of the 7-Eleven robbery and believed that it depicted the same person

who robbed Mickey’s.

               After the State rested its case, the defense called the clerk and manager of a third area

convenience store, a Valero, that was robbed twelve days before the 7-Eleven. The Valero

employees, Sherry Rose and Victoria Noyola, were not present when the Rule was invoked and the

State’s witnesses sworn in before trial. Rather, the judge swore in Rose and Noyola just before they

testified on the third day of trial and gave them no instructions on the Rule.

               Rose testified that she knew Powell personally because he had come into the Valero

store several times. She also testified that she believed Powell was not the man who robbed the

Valero store because Powell was taller than and spoke differently from the robber. Noyola then




       1
          Powell did not object to the admission of testimony regarding this extraneous offense.
Indeed, as we discuss below, he introduced evidence of a third extraneous offense. It appears that
both parties assumed extraneous-offense evidence was relevant to establishing the identity of the 7-
Eleven robber. See Tex. R. Evid. 404(b).

                                                  2
testified that she had seen the videotape of the 7-Eleven robbery and believed that it showed the

same man who had robbed the Valero store, but she did not believe that that man was Powell.

Noyola echoed Rose’s belief that Powell was taller than the robber.

               On cross-examination, Noyola admitted that earlier in the day she and Rose had

discussed the Valero robbery while in the presence of a private investigator employed by the defense.

Noyola claimed, however, that she and Rose had not “shar[ed] information” or tried “to get [their]

stories straight” during the discussion. The prosecutor then asked the judge to excuse the jury from

the courtroom, and the following exchange occurred:


       PROSECUTOR: Judge, based on Ms. Noyola’s testimony, . . . I believe we’ve got
       a violation of the Rule.

       COURT: Well, the Rule was never invoked with those folks.

       PROSECUTOR: That was the other thing. I couldn’t remember when we brought
       everybody in. I didn’t remember if you instructed them that the Rule had been
       invoked.

       COURT: Well, the Rule was invoked except for these witnesses. They just showed
       up today.

       PROSECUTOR: Well, no. Once the Rule is invoked, Judge, the attorneys have an
       obligation to tell the witnesses.

       COURT: Well, I hadn’t told the witnesses anything.

       PROSECUTOR: Right. I understand that. I just need to look at that and for us to
       have a chance to talk, and then we can do further cross-examination if we need to.


               After a brief recess, the State moved to strike the testimony of Rose and Noyola for

violation of the Rule. Defense counsel countered that Rose and Noyola had not violated the Rule



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because they had discussed the case before they were sworn in, and to strike their testimony would

deprive Powell of his right to a fair trial. The judge expressed the practical difficulty of striking the

testimony after the jury had already heard it, and he asked the parties if they could reach an

agreement about keeping the testimony in but instructing the jury that Rose and Noyola had violated

the Rule. Defense counsel suggested that such an instruction would constitute an impermissible

comment on the weight of the evidence.

                After another recess, defense counsel informed the judge that he had learned a new

detail: Rose and Noyola had not only spoken about the robbery earlier in the day but had also

watched the 7-Eleven video together. At that point the proceedings went off the record.

                When the proceedings went back on the record, the judge recalled the jury to the

courtroom and told it the following:


        Ladies and gentlemen, sometimes I have to give you legal instructions, and at this
        stage of the trial I have a legal instruction I want to give you. The legal instruction
        is pretty simple.
                On Monday morning before the trial starts the judge gets all the witnesses
        together and swears them all in to tell the truth before they start. And y’all know that
        because you have seen some of the witnesses have come up here, and I said, “Have
        you already been sworn in?” And, you know, 90% of them have already been sworn
        in.
                All right. At that time when I swear them in I give them the instruction on
        the “[R]ule,” the Witness Rule, and I tell them from now on y’all can’t talk about the
        case, you can’t discuss the case, you can’t let anybody discuss the case with you or
        anything like that. You just have to come in, present your testimony without regard
        to what somebody else has said.
                All right. So that’s the Witness Rule, and, of course, the lawyers know that.
        The lawyers are supposed to tell all the witnesses about the Witness Rule if they are
        not here.
                The last two witnesses that we had were Mrs. Rose and Ms. Noyola, and
        those were the two witnesses that talked together Monday after the Rule was
        invoked, viewed the video together and discussed it with the investigator, and they

                                                   4
        weren’t supposed to do that. So, I just want you to know that. And then with that
        we’ll just go on with our trial.


The judge then asked the parties, “Anything else?” Defense counsel answered, “No, sir.”

                After both sides rested, the jury found Powell guilty of robbing the 7-Eleven and

imposed a twenty-eight-year sentence. Powell appeals.


                                    STANDARD OF REVIEW

                To constitute reversible error, a trial court comment regarding the weight of the

evidence “must be such that it is reasonably calculated to benefit the State or to prejudice the rights

of the defendant.” Becknell v. State, 720 S.W.2d 526, 531 (Tex. Crim. App. 1986). This occurs

when the court “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.” Watts v. State, 140 S.W.3d 860, 863 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).


                                           DISCUSSION

                Texas Rule of Evidence 614 provides that at the request of a party or on the court’s

own motion, the court “shall order witnesses excluded” from the courtroom “so that they cannot hear

the testimony of other witnesses.” Tex. R. Evid. 614. Once invoked, the Rule also prohibits

witnesses from discussing the case outside the courtroom. See Tex. Crim. Proc. Code Ann. art.

36.06 (West 1979).

                Powell argues that the trial judge impermissibly commented on the weight of the

evidence by telling the jury that Rose and Noyola violated the Rule. See id. art. 38.05 (trial judge



                                                   5
may not comment on weight of evidence). We hold that Powell waived this argument because he

did not object to the judge’s statement.

               Generally, to preserve a complaint for appellate review, a party must make a timely,

specific objection in the trial court. See Tex. R. App. P. 33.1(a); Peavey v. State, 248 S.W.3d 455,

470 (Tex. App.—Austin 2008, pet. ref’d). Here, Powell did not object to the trial judge’s statement

that Rose and Noyola had violated the Rule. In fact, after the judge told the jury that Rose and

Noyola had violated the Rule, the judge addressed counsel directly and asked, “Anything else?”

Defense counsel answered, “No, sir.” Thus, Powell waived any argument that the court improperly

commented on the weight of the evidence.2 See id.

               Powell concedes that he failed to object, but he argues that the trial court’s statement

tainted his presumption of innocence and therefore represented fundamental error that did not require

objection. See Tex. R. Evid. 103(d) (in criminal case, appellate court may note fundamental errors

that were not raised in trial court); see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984) (fundamental error is error so egregious that it deprives defendant of right to fair trial).

               To support his fundamental-error argument, Powell relies primarily on Blue v. State,

41 S.W.3d 129 (Tex. Crim. App. 2000). In Blue, the trial court told the venire that the defendant had

attempted to strike a plea bargain with the State and that the trial court wished the defendant had


       2
           For the same reason, Powell waived the argument that Rose and Noyola did not actually
violate the Rule. Powell does not enumerate this argument as a separate point of error, but he makes
it in passing. Even if Powell had not waived the argument, which he bases on the fact that the court
invoked the Rule before Rose and Noyola were sworn in, it would not constitute grounds for
reversal; the Rule applies to all prospective witnesses once invoked, and the parties are obligated to
ensure that it is obeyed. See Webb v. State, 766 S.W.2d 236, 245 (Tex. Crim. App. 1989).


                                                  6
pleaded guilty. Id. at 132-33. A plurality of the court of criminal appeals held that the trial court’s

statements tainted the presumption of innocence, constituting fundamental error and therefore

requiring no objection to preserve error. Id.

               The plurality opinion in Blue is not binding precedent, see Jasper v. State, 61 S.W.3d

413, 421 (Tex. Crim. App. 2001), but even if it were, the trial court’s comments in this case did not

rise to the level of those in Blue. The comments in Blue touched upon the core issue of a defendant’s

guilt or innocence. See Blue, 41 S.W.3d at 132 (“A juror who hears the judge say that he would have

preferred that the defendant plead guilty might assume that the judge knows something about the

guilt of the defendant that the juror does not. Surely, no trial judge would want an innocent man to

plead guilty, no matter how much delay and expense he might be causing.”). Here, in contrast, the

trial court stated only that two defense witnesses violated the Rule. At most, the court’s statement

suggested that the witnesses’ testimony might not be credible.3 See Watts, 140 S.W.3d at 863 (court

comment on evidence is improper if it diminishes credibility of defense’s approach to case). Powell

cites no authority suggesting that such a statement represents fundamental error, and significant

authority suggests that it does not; Texas courts have indicated that improper comments may

represent fundamental error when they taint the presumption of innocence or undermine the

impartiality of the jury. See, e.g., Jasper, 61 S.W.3d at 421 (holding that even under reasoning of

Blue, trial judge’s comments would not rise to level of fundamental error because they lacked

elements that would taint presumption of innocence or prejudice the jury); Ganther v. State,




       3
         We note, though, that even though the court mentioned the Rule violation to the jury, it did
not say whether or how the violation should affect the jury’s view of the evidence.

                                                  7
187 S.W.3d 641, 650-51 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (concluding that even

if court of appeals were bound by Blue plurality, trial judge’s comments did not rise to level of

tainting presumption of innocence or vitiating impartiality of the jury). Powell asserts that the trial

court’s comment on the Rule violation did “taint his presumption of innocence,” but we disagree;

a suggestion that two witnesses may be untrustworthy is very different from a suggestion that the

defendant may be guilty. Cf. Blue, 41 S.W.3d at 132 (court tainted presumption of innocence when

it told jury that defendant had sought plea bargain and that court wished defendant had pleaded

guilty).

               In sum, we conclude that the trial court’s statement regarding Rose and Noyola’s Rule

violation does not rise to the level of fundamental error. See Jasper, 61 S.W.3d at 421; Ganther,

187 S.W.3d at 650-51. Because Powell did not object to the trial court’s comment and because the

alleged error was not fundamental, Powell’s complaint is waived. See id. We affirm the conviction.




                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: April 15, 2011

Do Not Publish




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