                             NUMBER 13-10-00194-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

MICHAEL ANGEL GONZALES,                                                  Appellant,

                                            v.

THE STATE OF TEXAS,                                                        Appellee.


                     On appeal from the 24th District Court
                          of Victoria County, Texas.


                         MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Garza
                Memorandum Opinion by Justice Garza
       Appellant, Michael Angel Gonzales, was convicted of aggravated robbery, a

first-degree felony, and was sentenced to twenty years’ imprisonment.   See TEX. PENAL

CODE ANN. § 29.03 (West 2003). By a single issue on appeal, Gonzales argues that the

trial court erred when it instructed the jury to ―disregard any comments about

participation of any third party in this crime.‖ We affirm.
                                      I. BACKGROUND

        Trial testimony established that, shortly after midnight on June 5, 2009, Gonzales

and an unidentified Hispanic male offered a ride in their vehicle to Jose Luz Alvarez, a

laborer employed in Victoria, Texas.      Gonzales and the unidentified male stated that

they would drive Alvarez to nearby Bloomington, Texas.       Instead, they drove to a dark,

secluded rural area where Gonzales, the driver, announced that he needed to pull over

to replace a flat tire. Once the vehicle was parked, Alvarez exited the vehicle to inspect

the tire.   According to Alvarez, Gonzales then struck him in the head with a tire iron and

stole money from him. Gonzales and the unidentified male then got back in the vehicle

and drove off, leaving a battered and bloodied Alvarez by the side of the road.

        Alvarez called 911 and was eventually picked up by a deputy from the Victoria

County Sheriff’s Office and taken to a hospital for treatment.    During the course of the

ensuing investigation, Alvarez was asked to identify his assailant in a photo lineup that

included a photo of Gonzales; Alvarez was unable to identify Gonzales.              Alvarez

acknowledged that he consumed a ―good amount‖ of beer that evening prior to being

picked up by Gonzales and that, during and after the assault, he had blood on his face

and in his eyes, which prevented him from seeing clearly.        However, he was able to

identify Gonzales in the courtroom at trial as the man who assaulted him that night.

        As part of her closing argument, Gonzales’s counsel stated in part as follows:

        [Defense counsel]:     When [Alvarez] was on the 911 call you’ll hear, or
                               you heard, that he was able to give a description of
                               where he was at. He could see clearly enough
                               without his glasses out there to read Tennessee Gas
                               Pipeline off of a sign. He read the street sign to the
                               officer—or to the dispatcher. I believe he knows
                               what happened out there. He gave us a vivid
                               description of the struggle between the two—the

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                             man and him. So why shouldn’t we rely on his word
                             when he tells us that he knows who his attacker is
                             and he can identify his attacker? Why do we not
                             believe that part of his story? If we’re going to
                             believe everything else he says, why do we
                             selectively pick out that part and decide not to
                             believe it? Why don’t we believe that he knows his
                             attacker, it was the third party assailant in that
                             vehicle with him and he saw him face-to-face.

       [Prosecutor]:         I’m going to object, Your Honor. That was not the
                             testimony at all.

       THE COURT:            I will sustain that objection—

       [Prosecutor]:         Thank you, Your Honor.

       THE COURT:            —and I’m going to instruct the jury to disregard any
                             comments about participation of any third party in
                             this crime.

Defense counsel then continued her closing statement without objecting to the trial

court’s instruction.

       Gonzales was subsequently convicted by the jury and sentenced to twenty years’

imprisonment. This appeal followed.

                                     II. DISCUSSION

       Gonzales contends the trial court violated article 38.05 of the Texas Code of

Criminal Procedure by instructing the jury to disregard defense counsel’s comments

about the unidentified passenger’s possible participation in the crime.   Gonzales argues

that, because Alvarez ―had been less than confident or certain in his in-court

identification‖ of Gonzales at trial and in the photo lineup, and because Alvarez ―admitted

to other factors tending to lessen his ability to perceive and recall events (severe head

trauma, excessive alcohol intake, lack of corrective eyewear),‖ the trial court therefore

―completely precluded [Gonzales’s] defense‖ by making the challenged oral instruction.

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       The statute provides that a trial judge may not, ―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); 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, indicates disbelief in the defendant’s position, or diminishes the credibility of

the defense’s approach to the case.         Simon v. State, 203 S.W.3d 581, 590 (Tex.

App.–Houston [14th Dist.] 2006, no pet.).

       Gonzales’s trial counsel did not object to the trial court’s instruction. The general

rule is that counsel must object to the trial court’s comments during trial in order to

preserve error.   See TEX. R. APP. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex.

Crim. App. 2000).    However, objection at trial is not necessary where the error alleged

is ―fundamental‖—that is, where it creates ―egregious harm.‖ Ganther v. State, 187

S.W.3d 641, 650 (Tex. App.–Houston [14th Dist.] 2006, pet. ref’d); see TEX. R. EVID.

103(d) (providing that, in the context of rulings on the admission of evidence, appeals

courts are authorized to take notice of ―fundamental errors affecting substantial rights‖

even if the alleged error was not brought to the attention of the trial court).    Harm is


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egregious if it prevents a defendant from receiving a fair and impartial trial.                         Ganther,

187 S.W.3d at 650. Fundamental error of constitutional dimension may exist if a trial

judge makes a comment that taints the defendant’s presumption of innocence.                              Blue, 41

S.W.3d at 132.

        Gonzales argues that the trial court’s instruction ―to disregard any comments

about participation of any third party in this crime‖ was equivalent to an instruction ―to

disregard any argument that the backseat passenger (a Hispanic male, like appellant)

may have committed the crime.‖ Considering the context in which the trial court made

the challenged comment, we disagree. The remarks were made after the trial court

sustained the State’s objection to an inaccurate summary of the evidence by defense

counsel during her closing argument.1 The trial court’s statement was clearly intended

to advise the jury that it must disregard only the misstatement previously made by

defense counsel, not that it must disregard all evidence that someone other than

Gonzales committed the crime.               There was nothing preventing Gonzales from arguing

that the State had failed to meet its burden of proof—and indeed, defense counsel did

argue, after the trial court made the challenged remarks, that ―[t]here’s reasonable doubt

as to the identity of the person who assaulted Mr. Alvarez.‖2 Viewed in its proper

context, the instruction at issue here neither tainted Gonzales’s presumption of

        1
          The record reflects that the trial court was correct in sustaining the State’s objection—Alvarez
never testified that he knew his assailant, that it was the ―third party . . . in that vehicle with him,‖ or that he
saw his assailant ―face-to-face.‖
        2
          It is noteworthy that the jury charge in this case permitted the jury to find Gonzales guilty pursuant
to the law of parties, under which a person is criminally responsible for an offense committed by the conduct
of another person if, ―acting with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense.‖ TEX. PENAL CODE
ANN. § 7.02(a)(2) (West 2003). If, as Gonzales implies, the oral instruction at issue forbade the jury from
considering any evidence presented throughout the trial as to Gonzales’s unidentified passenger, then such
an instruction would have aided Gonzales’s defense in this regard, because the jury would not have been
able to convict based on the law of parties without considering the passenger’s conduct. See id.

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innocence or prevented him from receiving a fair trial.

       For the foregoing reasons, we conclude that no fundamental error was committed

here; therefore, Gonzales has waived his issue by failing to object at trial.   See Ganther,

187 S.W.3d at 650 (finding that judge’s comments regarding appellant representing

himself were not fundamental error); Gordon v. State, 191 S.W.3d 721, 726-27 (Tex.

App.–Houston [14th Dist.] 2006, no pet.) (concluding that judge’s statements about how

the defendant controls the system were not fundamental error); Rabago v. State, 75

S.W.3d 561, 561-63 (Tex. App. –San Antonio 2002, pet. ref’d) (finding that judge’s

remarks regarding appellant’s prior conviction were not fundamental error); see also

Basey v. State, No. 14-10-00134-CR, 2011 Tex. App. LEXIS 1695, at *10-11 (Tex.

App.–Houston [14th Dist.] Mar. 10, 2011, no pet. h.) (mem. op., not designated for

publication) (concluding that judge’s comment during voir dire that the reporter’s trial

record ―is what is appealed up to the Court of Criminal Appeals or the Courts of Appeals‖

did not “undermine[] the presumption of innocence or vitiate[] the impartiality of the

judge‖).   Gonzales’s issue is overruled.

                                     III. CONCLUSION

       We affirm the judgment of the trial court.


                                                          DORI CONTRERAS GARZA,
                                                          Justice

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

Delivered and filed the
9th day of June, 2011.




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