                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00080-CR
        ______________________________


           STEVEN MORGAN, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




    On Appeal from the 5th Judicial District Court
               Bowie County, Texas
           Trial Court No. 10F0084-005




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Carter
                                                 OPINION

I.       Factual and Procedural Background

         Steven Morgan appeals his conviction for aggravated sexual assault of a disabled person.

See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2011). T.H., the victim, testified that Morgan,

whom T.H. had previously known and regarded as a friend, called T.H. and arranged a meeting.

Morgan “took” T.H. to Morgan’s trailer, made T.H. undress, and then anally penetrated T.H.

T.H. testified Morgan threatened to shoot him if he told anyone. Anita Polomski, a sexual assault

nurse examiner, testified T.H. had an “acute one and a half centimeter tear and a one centimeter

open area tear” to the anus. The State also introduced evidence that Morgan’s DNA was

consistent with a DNA mixture found on the penile swab of T.H. with a match of “1 in 1,352 for

Caucasians.”      A jury found Morgan guilty and assessed punishment at seventy-five years’

imprisonment. The trial court sentenced Morgan consistent with the jury’s assessment. On

appeal, Morgan argues the evidence is insufficient and reversible error occurred when the trial

court improperly commented on the weight of the evidence. We affirm the judgment of the trial

court.

II.      The Evidence Is Sufficient

         In his first two points of error, Morgan claims the evidence is legally and factually

insufficient1 to support the jury’s conclusion that T.H. is disabled.


1
 With Judge Cochran joining the lead opinion, authoring a concurring opinion, and Judge Womack concurring with
the lead opinion and joining the concurrence, in Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (4-1-4

                                                        2
         In reviewing the legal sufficiency of the evidence, we review all the evidence in the light

most favorable to the jury’s verdict to determine whether any rational jury could have found the

essential elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 912 (citing

Jackson, 443 U.S. at 319). Our rigorous legal sufficiency review focuses on the quality of the

evidence presented. Id. at 917–18 (Cochran, J., concurring).

         Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). A “hypothetically correct” jury charge is “one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of proof or

unnecessarily restrict the State’s theories of liability, and adequately describes the particular

offense for which the defendant was tried.” Id. The hypothetically correct jury charge must

include both (1) allegations that form an integral part of an essential element of the offense,

including allegations that are statutorily alternative manner and means and (2) material variances.

Mantooth v. State, 269 S.W.3d 68, 74 (Tex. App.—Texarkana 2008, no pet.); see Gollihar v. State,

46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Under the hypothetically correct jury charge,

“disabled individual” would have been defined as:


decision), a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review established by
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its progeny. The plurality and Judge Womack agreed
that the Jackson v. Virginia, 443 U.S. 307 (1979), legal sufficiency standard is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the
State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894–95, 912–13. Since the Texas
Court of Criminal Appeals has abolished factual sufficiency review, we will interpret Morgan’s factual sufficiency
challenge as a challenge to the legal sufficiency of the evidence.

                                                           3
           “Disabled individual” means a person older than 14 years of age who by reason of
           age or physical or mental disease, defect, or injury is substantially unable to protect
           himself from harm or to provide food, shelter, or medical care for himself.

TEX. PENAL CODE ANN. § 22.04(c)(3) (West Supp. 2011); see TEX. PENAL CODE ANN.

§ 22.021(b)(2) (specifying “disabled individual” has meaning assigned by Section 22.04(c)).

           Morgan argues the evidence is insufficient because the State failed to establish the extent

of T.H.’s “cognitive and physical abilities.” Morgan argues the fact that T.H. was able to ride his

bicycle2 downtown unaccompanied by any other person indicates he was not disabled. Morgan

also points out that T.H.’s mother did not remember T.H.’s IQ, did not specify whether T.H. was

exclusively in special education classes, did not indicate whether T.H. could handle money, and

did not discuss whether T.H. could provide for his nutritional needs, medical needs, or personal

hygiene. We note that T.H.’s mother testified T.H. had a “little job” at Dairy Queen prior to the

assault and “because of the incident, he quit that job.”

           The evidence is sufficient for a rational juror to conclude beyond a reasonable doubt that

T.H. is substantially unable to protect himself from harm.                    Dr. Bryan Smith, a “clinical

psychologist and clinical neuropsychologist,” testified that he personally met with T.H. and “the

diagnosis, you know, based on the testing that I did, looking at school records, and looking at his

history, developmental history and, you know, functioning throughout his life, were all consistent

with a diagnosis of mental retardation.” T.H.’s mother testified T.H. suffered permanent brain

injuries during birth, is “mentally disabled,” and attended special education classes when he
2
    When asked during cross-examination if “you ride your bicycle a lot,” T.H. answered, “Uh-huh. Yeah.”

                                                          4
attended school. T.H.’s mother testified T.H., age twenty-nine, still lives with her. Tina Lee, an

investigator with the Bowie County Sheriff’s Office, testified that she recorded T.H.’s interview

because she did not believe that T.H. was mentally capable of giving a written statement.

Polomski testified there was “no trauma noted” in her “head to toe assessment.” The jury is

permitted to make reasonable inferences from the evidence. We must give deference to the

responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). A rational juror could infer, based

on the evidence presented, that T.H.’s mental disease prevents him from protecting himself from

harm. We conclude the evidence is sufficient for a rational juror to find T.H. was a “disabled

individual.”

III.   Trial Court’s Comment/Instruction to Jury

       In his third issue, Morgan argues the trial court improperly commented on the weight of the

evidence while instructing the jury. During the cross-examination of Dr. Smith, Morgan’s trial

counsel asked:

               Q       [By defense counsel] And in those discussions, were you able to --
       or are you able to make a determination of whether [T.H.] is capable of
       differentiating between the truth and a lie?

              A      [By Dr. Smith] Well, that wasn’t the exact reason why I was
       evaluating him.




                                                5
               Q      But for someone in his, with his mental competence or with his
       disability, would you be able to make that determination?

               A       That wasn’t something I was asked to determine at that time. I
       mean, I could look back through and, you know, attempt to form an opinion on that,
       but I hadn’t at that point.

               Q       Okay. So at this time you don’t have an opinion on that?

               A       Since that wasn’t the reason I was evaluating him, yeah. At this
       point, I don’t.

The State did not object to this line of questioning. After another witness testified, the trial court

recessed.

       After a brief recess, the trial court, apparently sua sponte, proposed an instruction be given

to the jury. When asked if anyone had any objections, Morgan’s trial counsel affirmatively

replied, “No, Your Honor.” The trial court orally instructed the jury as follows:

       Members of the jury, during the examination of Dr. Smith the question was asked
       whether the doctor had an opinion on the ability of the witness [T.H.] to distinguish
       between telling the truth and telling a lie. It is for the judge, not the jury, to
       determine whether a witness is competent to testify in a criminal proceeding. The
       judge is not required to order a witness to undergo psychiatric evaluation for the
       purpose of a competency evaluation. Rather, Texas law creates a presumption that
       a person is competent to testify, and a witness will only be excluded when
       questioning convinces the judge that the witness does not possess sufficient
       intellect to accurately reflect transactions about which the witness is being
       interrogated. Based on this standard, I have determined that the witness [T.H.] is
       competent to testify pursuant to the rules governing this proceeding. Therefore, I
       am instructing you to disregard the question of Dr. Smith regarding the ability of
       [T.H.] to tell the difference between the truth and a lie and give it no weight in your
       deliberations. It remains your responsibility to evaluate the credibility of all
       witnesses, including [T.H.], and I am not permitted by words or actions to influence
       your evaluation. I am only saying that he meets the threshold requirement of


                                                  6
       competence to testify. It will remain entirely up to you to determine whether to
       believe all, none, or any part of his testimony.

       A.      Trial Court Ruling on Evidence

       Morgan argues the above comment was in violation of Article 38.05 of the Texas Code of

Criminal Procedure, which directs:

               In ruling upon the admissibility of evidence, the 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.

TEX. CODE CRIM. PROC. ANN. art. 38.05 (West 1979).

       Morgan argues that “[t]he trial court instructed the jury to make no inference of credibility

of the complaint based on the psychologist’s failure to conduct a competency evaluation. In

short, the trial court instructed the jury that the complainant’s testimony should be believed.” We

do not agree with this analysis of the instruction.

       The Texas Code of Criminal Procedure prohibits a trial court from making a statement

which comments on the weight of the evidence both in the jury charge, see TEX. CODE CRIM.

PROC. ANN. art. 36.14 (West 2007), and outside the context of the jury charge, see TEX. CODE

CRIM. PROC. ANN. art. 38.05, such as when ruling on the admissibility of evidence. 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




                                                  7
credibility of the defense’s approach to its case.” Hoang v. State, 997 S.W.2d 678, 681 (Tex.

App.—Texarkana 1999, no pet.) (footnotes omitted) (citations omitted).

            No objection was made to this instruction. Generally, a claim that the trial court erred by

commenting on the weight of the evidence during trial or while ruling on evidentiary matters must

be preserved by objection before the appellate court may consider it. Woods v. State, 569 S.W.2d

901 (Tex. Crim. App. 1978); Minor v. State, 469 S.W.2d 579, 580 (Tex. Crim. App. 1971). A

very similar issue has been discussed by the Corpus Christi court. In Reyna, the jury was

instructed concerning the competency of a child witness.3 Since no objection was made, the

allegation was that the instruction was “plain error” and no objection was necessary. The Corpus

Christi court found the alleged error was not preserved. Reyna, 797 S.W.2d at 192–93.

            We note that there is some authority, albeit not binding authority, that a judicial comment

can result in fundamental error, therefore not requiring an objection to preserve review, if the

comment imparts information to the jury that taints the defendant’s presumption of innocence. In

Blue v. State, 41 S.W.3d 129, 133 (Tex. Crim. App. 2000), a plurality of the Texas Court of

3
    That instruction was:

            Now, ladies and gentlemen of the jury, you’re in just as good of a position as I am. Although the
            law does require that before a witness testifies the witness must be competent. Now, this little
            witness—obviously, all of you are well aware that children are different. And the Court is going to
            rule that she will be allowed to testify because of the questions that I have asked. I don’t want to
            accept totally that she is totally competent, obviously, she is very young. You’re going to have to
            be the Judge and I’m going to allow her to testify but it is your responsibility and also your
            responsibility to determine the weight that you give to her testimony, okay?

Reyna v. State, 797 S.W.2d 189, 192–93 (Tex. App.—Corpus Christi 1990, no writ).


                                                             8
Criminal Appeals held that the judge’s comments tainted the presumption of innocence and was

fundamental error of constitutional dimension.4 Judge Keasler concurred in the result, reasoning

that the judge’s comments were “so egregious” that they violated the right to an impartial judge

and resulted in structural error. Id. at 139 (Keasler, J., concurring). As a plurality decision, Blue

is not binding precedent. Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex. Crim. App. 1999).

Since its decision in Blue, the Texas Court of Criminal Appeals has declined to either endorse or

reject Blue’s discussion of fundamental error. See Brumit v. State, 206 S.W.3d 639 (Tex. Crim.

App. 2006); Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (holding comment did

not rise to such a level as to bear on presumption of innocence or vitiate impartiality of jury and

recognizing Blue was plurality decision); Chanthakoummane v. State, No. AP-75,794, 2010 Tex.

Crim. App. Unpub. LEXIS 249 (Tex. Crim. App. Apr. 28, 2010) (mem. op., not designated for

publication). The judge’s comment in this case does not taint the defendant’s presumption of

innocence or demonstrate impartiality.

        The comment was neutral, was a substantially correct statement of the law, and explained

that while competency to testify was an issue for the court, it also emphasized to the jury that

credibility decisions were the province of the jury. The comment did not prevent a fair and

impartial trial. Therefore, the error, if any, is not fundamental error and any complaint that the


4
 The plurality opinion was written by Judge Johnson and joined by Judges Mansfield, Price, and Holland. Blue, 41
S.W.3d at 133. Judge Mansfield also wrote a concurring opinion. Id. at 133 (Mansfield, J., concurring). Judges
Keller, McCormick, and Womack dissented, asserting that an objection was required in order to preserve error. Id. at
144 (Keller, J., dissenting).

                                                         9
trial court erred during its ruling on an evidentiary matter has been forfeited by failing to object at

trial. See TEX. R. APP. P. 33.1; Jasper, 61 S.W.3d at 421; Marin v. State, 851 S.W.2d 275, 279

(Tex. Crim. App. 1993).

           B.       Jury Charge Error

           Morgan argues this instruction should also be treated as a jury charge error and be

evaluated under the Almanza test.5 While it is not clear whether the instruction was delivered to

the jury with the usual jury charge, it was in writing, signed by the trial judge, filed in the clerk’s

office, and file-stamped at the same time as the guilt/innocence jury charge; therefore, we will also

address it under the Almanza standard. The first issue is whether the comment is jury charge

error.

           This instruction addressed the issue of the role of the trial court in ruling on the competency

of witnesses to testify. It instructed the jury to disregard a question to a psychologist on this issue.

Ultimately, the instruction made it clear that the jury had the exclusive right to evaluate the

credibility of the witnesses, not the judge. The comment did not emphasize any particular

statement or evidence presented by the witness; the witness had no opinion or answer to the

question and the jury was instructed to disregard the question, not an answer of the witness.

While this instruction may not have been necessary, we do not find that it was calculated to benefit

the State or to prejudice the rights of the defendant. See Becknell v. State, 720 S.W.2d 526, 531



5
    Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).

                                                          10
(Tex. Crim. App. [Panel Op.] 1986); Madrigal v. State, 347 S.W.3d 809, 814 (Tex. App.—Corpus

Christi 2011, pet. ref’d) (mem. op.).

       Even if the comment/instruction was an erroneous jury charge instruction, since there was

no objection, it is not reversible error unless it resulted in egregious harm. Almanza, 686 S.W.2d

at 171. Egregious harm is shown if the very basis of the case is affected which deprives the

defendant of a valuable right, vitally affects a defensive theory or makes the case for conviction or

punishment significantly more persuasive. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim.

App. 2007). In making such determination, we examine the entire jury charge, the evidence,

including contested issues and the weight of the probative evidence, the arguments of counsel, and

any other relevant information. Id. Here, the evidence of guilt was significant, the victim

identified Morgan, DNA tests made some connection, and physical evidence of the assault was

presented. Nothing in the record indicates that the instruction deprived Morgan of any valuable

right, affected a defensive theory, or made the case for conviction more persuasive. We find the

instruction did not cause egregious harm.

       For the reasons stated, we affirm the judgment of the trial court.




                                              Jack Carter
                                              Justice

Date Submitted:        April 2, 2012
Date Decided:          April 12, 2012


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