                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-13-00383-CR

JEWELL LEE THOMAS,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                             From the County Court
                             Navarro County, Texas
                              Trial Court No. 66895


                         MEMORANDUM OPINION


      Jewell Lee Thomas appeals from a conviction for the offense of driving while

intoxicated. TEX. PEN. CODE ANN. § 49.04 (West 2011). Thomas complains that the trial

court erred by allowing the State to make an unsworn comment regarding his

courtroom behavior, failed to instruct the jury to disregard the State's improper

comment, and commented on the evidence in an instruction to the jury. Because we

find that the error regarding the unsworn comment, if any, was harmless, and the issue
regarding the trial court's comment was not preserved, we affirm the judgment of the

trial court.

       During the testimony of the arresting officer, the officer was asked about his

observations of Thomas's "droopy" eyes at the time of the traffic stop and at trial. The

State asked the officer whether Thomas's eyes were "droopier" at the scene than they

were while Thomas was in the courtroom at that time. The officer responded in the

negative and the State responded by saying, "May the record reflect the defendant's

actually tightened his eyelids since I asked this question. I'll move on." Counsel for

Thomas objected that the State's comment violated his right not to testify pursuant to

the Fifth Amendment of the United States Constitution.

       A discussion then ensued in front of the jury between the State and trial counsel

for Thomas regarding whether his courtroom demeanor and physical attributes

constituted "visible evidence" for the jury to consider. Thomas's trial counsel asked the

trial court to strike the comments and to instruct the jury to disregard. The trial court

initially sustained the objection, then when questioned by the State, overruled the

objection and stated that the State was "allowed to do that. And allow the jury to do

their job and draw whatever conclusion, if any, they wish to." Trial counsel for Thomas

then asked the trial court if his objection was overruled, and the trial court said it was.

Trial counsel then asked for a mistrial which was denied.




Thomas v. State                                                                      Page 2
       Assuming without deciding that the State's comments were erroneous, Thomas

argues that we must determine whether Thomas was harmed pursuant to rule 44.2(b) of

the rules of appellate procedure, which requires that we disregard any error not

affecting substantial rights. TEX. R. APP. P. 44.2(b). In other words, "the conviction

should not be reversed when, after examining the record as a whole, the reviewing

court has a fair assurance that the error did not influence the jury or had but a slight

effect."   McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005).               When

considering whether the error affected the jury's decision, we consider the entire record,

including testimony, physical evidence, the nature of the evidence supporting the jury's

verdict, and the character of the alleged error and how it might have been considered in

light of other evidence. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

       The exchange described above was the only instance of the State alluding to

Thomas's physical appearance or attempts to change his "droopy" eyes at trial,

including the State's closing argument.

       The evidence of guilt absent the State's comments about the status of Thomas's

eyelids was strong. Thomas was initially stopped for speeding. When the officers

approached his vehicle, there was an open box of beer behind the front seats in the

center of Thomas's vehicle. There was an empty bottle on the back floorboard, and a

strong smell of alcohol was emanating from the vehicle. After exiting his vehicle, the

officer smelled an odor of alcohol on Thomas's breath. Thomas's eyes were droopy and


Thomas v. State                                                                         Page 3
he walked with a slight limp.       On the horizontal gaze nystagmus test, the officer

observed 6 of 6 clues. Also, Thomas was unable to perform the one legged stand and to

follow directions to complete the alphabet from the letters "e" to "p." Thomas further

admitted to the consumption of alcohol and repeatedly requested the officers to charge

him with public intoxication rather than driving while intoxicated. Thomas's blood

alcohol content at the station was .111 and .097, above the legal limit of .08.

       Thomas further argues in his sole issue that the trial court's comment to the jury

constituted a comment on the weight of the evidence. However, no objection was made

to the trial court's comment at trial.     The State argues that this objection was not

preserved for our review because no objection was made to the trial court.

       Ordinarily, a complaint regarding an improper judicial comment must be

preserved at trial. See TEX. R. APP. P. 33.1; Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim.

App. 2013); Jasper v. State, 61 S.W.3d 413, 420-21 (Tex. Crim. App. 2001). When no

objection is made, "remarks and conduct of the court may not be subsequently

challenged unless they are fundamentally erroneous"—that is, the error creates

egregious harm. See Powell v. State, 252 S.W.3d 742, 744 (Tex. App.—Houston [14th

Dist.] 2008, no pet.). A trial court's comments do not constitute fundamental error

unless they rise to "such a level as to bear on the presumption of innocence or vitiate the

impartiality of the jury." Jasper, 61 S.W.3d at 421 (trial court's comments correcting

defense counsel's misrepresentation of previously admitted testimony, showing


Thomas v. State                                                                       Page 4
irritation at the defense attorney, and clearing up a point of confusion were not

fundamental error).

       Thomas does not argue that the trial court's comments constituted fundamental

error, and we do not find that the trial court's comment, if erroneous, constituted

fundamental error. Therefore, an objection was necessary to preserve this portion of

Thomas's issue. We overrule issue one.

Conclusion

       Because we have found that the error in the State's comment, if any, was

harmless and the trial court's comment on the weight of the evidence, if any, was

waived, we affirm the judgment of the trial court.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 16, 2014
Do not publish
[CR25]




Thomas v. State                                                               Page 5
