                                Fourth Court of Appeals
                                       San Antonio, Texas
                                   MEMORANDUM OPINION
                                           No. 04-13-00667-CR

                                      Raymond Sandoval GARCIA,
                                              Appellant

                                                    v.
                                                The State of
                                           The STATE of Texas,
                                                 Appellee

                      From the County Court at Law No. 7, Bexar County, Texas
                                      Trial Court No. 383282
                            Honorable Timothy Johnson, Judge Presiding 1

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: September 10, 2014

AFFIRMED

           A jury found appellant, Raymond Sandoval Garcia, guilty of assault causing bodily injury,

family violence. In two issues on appeal, appellant asserts (1) comments made by the trial court

constituted reversible error, and (2) the trial court erred by failing to include a charge instruction

for the jury to disregard any comment by the court that appeared to express an opinion with respect

to any fact. We affirm.


1
  The Honorable Genie Wright is the presiding judge in County Court at Law No. 7. The Honorable Timothy Johnson,
sitting as visiting judge, presided over the trial.
                                                                                                  04-13-00667-CR


                                              BACKGROUND

        Appellant was charged with assault due to an altercation with his girlfriend’s daughter,

Lydia Gutierrez. During direct examination by the State, the responding police officer described

Gutierrez’s injuries as “serious.” Defense counsel cross-examined the responding officer. In an

attempt to challenge the officer’s qualifications to assess the seriousness of Gutierrez’s injuries,

the following exchange occurred:

        (Defense) Q: You’re not a medical doctor, correct?

        (Officer) A: Correct.

        Q: So the injuries that you see—

        (The Court): Yes, she is, but after Obamacare, 2 it’s more profitable to be a cop.

        Q: Do the injuries that you see visually necessarily mean serious bodily injury?

        A: No.

        ....

        In addition to the trial court’s “Obamacare” comment, appellant further contends there

were other comments by the trial court that do not, by themselves, “reach constitutional dimensions

. . . but which, taken in the context of the trial as a whole, further denied [appellant] the right to an

impartial judge.”

        After the lunch break on the second day of trial, the trial court welcomed the jury back. It

was a hot summer day and the trial court recalled how hot the courtroom was in 1983 due to the

courtroom’s lack of air conditioning. The trial court then stated, “Although in the old days the

deputies when they testified only got comp time, and then they would never let them use comp




2
 The Patient Protection and Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119 (2010), is often referred to as
“Obamacare.”

                                                       -2-
                                                                                   04-13-00667-CR


time. But they’ve changed that rule now to where they actually get paid overtime just like the

SAPD cops do. The deputies are much happier about being here than they used to be.”

       Appellant also points to two other comments made by the trial court as evidence of an

impartial trial judge. On the first day of trial, the responding officer testified that Gutierrez

acknowledged she struck appellant first, although the officer did not consider Gutierrez to be the

aggressor. During cross examination of Gutierrez’s mother, the following exchanges took place:

       (Defense) Q: We established yesterday that [Gutierrez was] the first person who
       struck the blow when the altercation occurred.

       A: It wasn’t a blow. It was an open-handed swing.

       Q: The first—she was the aggressor, in other words. She hit first?

       A: I wouldn’t consider it an aggressor.

       (The Court): She swung first, simply. We all agree on that.

       A: [Yes.]

       ...

       Q: Is it fair to say that you really love your daughter?

       (The Court): What is the relevance to that, [defense counsel]?

       (Defense): She’s answering—

       (The Court): She’s a mother. She loves her daughter. I think that can be assumed.
       Please ask another question.

       (Defense): Okay.

       ....

       Defense counsel did not object to any of the trial court’s comments. After the close of

evidence, no objection was made to the court’s charge.




                                                 -3-
                                                                                       04-13-00667-CR


                                 PRESERVATION OF ERROR

       In his first issue, appellant contends the comments made by the trial court constitute

reversible error. Acknowledging no objection was made, appellant asserts error was not waived

because the comments amounted to structural error. Based on this assertion, appellant argues he

was not required to object to preserve his complaint for appeal.

       Ordinarily, a complaint regarding an improper judicial comment must be preserved at trial.

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). However, an exception to the general rule exists

in cases where a trial court’s comment amounts to fundamental error. See TEX. R. EVID. 103(d);

Unkart, 400 S.W.3d at 99. A trial court’s comment does not constitute fundamental error unless

it rises “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.

       The question of whether a trial judge’s comments can rise to the level of fundamental error

was discussed in Blue v. State, 41 S.W.3d 129, 130 (Tex. Crim. App. 2000) (plurality op.). In

Blue, “at the beginning of the jury selection process, the trial judge apologized to a group of

prospective jurors for their long wait.” Id. In doing so, the trial judge informed the jurors the

defendant was going “back and forth” deciding whether to accept a plea deal or go to trial. Id. In

the presence of the jury, the trial judge also stated he preferred the defendant to plead, and “we

were all trying to work toward that and save you time and cost of time.” Id. The Court of Criminal

Appeals stated the trial judge’s “comments ‘vitiated the presumption of innocence’ before the

venire, adversely affecting appellant’s right to a fair trial.” Id. at 132 (quoting United States v.

Bray, 546 F.2d 851, 859 (10th Cir. 1976)). A plurality of the court concluded the “comments of

the trial judge, which tainted appellant’s presumption of innocence in front of the venire, were

fundamental error of constitutional dimension and required no objection.” Id. at 132.
                                                 -4-
                                                                                         04-13-00667-CR


        Recently, the court revisited the issue of whether a trial judge’s comments amounted to

fundamental error in Unkart v. State. There, “the trial judge said that he personally would want to

testify if accused of a crime but admonished the prospective jurors that others might have a

different perspective, that a defendant could have good reasons not to testify that were unrelated

to guilt, and that the law prohibited the jurors from holding a defendant’s failure to testify against

him.” Unkart, 400 S.W.3d at 96. The Unkart court distinguished Blue on five grounds. Id. at

101–02. First, the attitudes of the trial judges were different in each case. Id. at 101. The court

characterized the trial judge’s comments in Blue as “an expression of exasperation and impatience

. . . fault[ing] the defendant for failing to quickly give up his right to a jury trial and accept a plea

offer,” while the comments by the trial judge in Unkart “were made with the manifest intent to

benefit the defendant and to protect his rights.” Id. Second, “the trial judge in Blue conveyed

information about the case that the jurors would not have otherwise known, while the trial judge

in [Unkart] did not.” Id. Third, “the trial judge in Blue told the jurors what he preferred the

defendant to do, but the trial judge’s remarks in [Unkart] did not.” Id. “Fourth, the trial judge in

[Unkart] gave the jurors a logical reason to disregard his expressed personal preference.” Id.

However, in Blue, “no such discussion occurred in connection with the trial judge’s comments that

the defendant was involved in plea negotiations and that the judge preferred that the defendant

plead.” Id. Finally, the trial judge in Unkart “emphatically instructed jurors about what the law

required, that the law required the jurors to disregard the judge’s own personal preference, and that

it was important to be able to follow the law.” Id. at 102. However, “the trial judge’s statements

in Blue contained no instructions that could be construed as telling the jury to disregard the trial

judge’s comment regarding the defendant’s participation in plea discussion or the comment

regarding the trial judge’s desire that the defendant accept the State’s plea offer.” Id.



                                                  -5-
                                                                                         04-13-00667-CR


        In addition to distinguishing Blue, the Unkart court clarified that Blue, as a plurality

decision, had no precedential value. Id. at 101. Although acknowledging a plurality decision,

such as Blue, could have persuasive value similar to a concurring opinion, the court held that Blue

did not support reversal in Unkart “because the circumstances [in Unkart] differ[ed] significantly

from the circumstances in Blue.” Id. The court concluded Unkart waived error by failing to object

and request an instruction to disregard because residual harm, if any, “would have been cured by

a timely instruction to disregard the specific comments that appellant found objectionable.” Id. at

102.

        In this case, unlike the comments in both Blue and Unkart, the trial court’s comments had

no relation to appellant, and as appellant states in his brief, were “completely irrelevant to any

issue in this case.” The comments did not provide the jurors information that they would not have

otherwise known, and did not express the trial judge’s preference regarding appellant’s actions.

Additionally, the trial court gave the following oral instruction to the jury at the beginning of trial:

        You must not be influenced in any way with a personal feeling of sympathy for or
        prejudice against either the State of the defense. Both are entitled to the same fair
        and impartial consideration by you. No statement, ruling or remark that I may
        make during the presentation of testimony is intended to indicate my opinion as to
        what the facts are. You are to determine the facts. (emphasis added)

        We conclude that the complained-of comments did not bear on the presumption of

innocence or vitiate the impartiality of the jury. Accordingly, we hold the trial court’s comments

do not constitute fundamental error, and because appellant did not object at trial, nothing is

presented for review on appeal.

                                     JURY CHARGE ERROR

        In his second issue, appellant asserts the trial court erred by failing to include an instruction

in the jury charge for the jury to disregard any comment by the court that appeared to express an



                                                  -6-
                                                                                       04-13-00667-CR


opinion with respect to any fact. Again acknowledging no objection was made at trial, appellant

argues he suffered egregious harm as a result of the trial court’s failure to include the instruction.

1. Standard of Review

       In analyzing a jury charge issue, we first determine whether error exists. Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005). If error is found, we must then determine whether the

defendant suffered sufficient harm to require reversal. Id. If, as in this case, the error was not

objected to, reversal is only required if egregious harm is suffered. Id.

       “Egregious harm is a difficult standard to prove and such a determination must be done on

a case-by-case basis.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Errors that

result in egregious harm are those that affect “the very basis of the case, deprive the defendant of

a valuable right, or vitally affect a defensive theory.” Id. (internal citations omitted). Egregious

harm occurs if the error is reasonably calculated to benefit the State, or deprives the defendant of

a fair and impartial trial. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011);

Aschbacher v. State, 61 S.W.3d 532, 538–39 (Tex. App.—San Antonio 2001, pet. ref’d). In

determining whether a defendant was deprived of a fair and impartial trial, we review “the entire

jury charge, the state of the evidence, including the contested issues and weight of the probative

evidence, the argument of counsel and any other relevant information revealed by the record of

the trial as a whole.” Taylor, 332 S.W.3d at 489.

2. Analysis

       In support of his assertion that the trial court erred by failing to include the instruction,

appellant cites to Blue and Unkart. Appellant’s reliance on these cases, however, is misplaced.

Blue and Unkart dealt with whether the trial court’s comments constituted fundamental error.




                                                 -7-
                                                                                                   04-13-00667-CR


Neither case involved charge error, nor do they stand for the proposition that the failure to include

such an instruction constitutes charge error. 3

        Even assuming the trial court’s failure to include the instruction constituted error, we

conclude appellant did not suffer egregious harm. In this case, the application paragraph of the

jury charge properly set out the applicable law and correctly instructed the jury. With respect to

the state of the evidence, it is undisputed appellant was involved in an altercation with the victim.

The jury heard testimony from all parties involved in the altercation—the victim, the victim’s

mother, and appellant. Each testified that the incident started as a verbal altercation between the

victim and appellant, then escalated to a physical altercation after the victim and appellant

exchanged insults. The evidence also included photographs of the victim and appellant shortly

after the incident occurred as well as the location where the altercation took place. The only

contested issue was whether appellant acted in self-defense. The arguments of counsel focused on

whether appellant’s use of force constituted self-defense. And, as previously mentioned, the trial

court’s comments were unrelated to appellant and were “completely irrelevant to any issue in this

case.” Accordingly, the charge error, if any, cannot be said to have affected the very basis of the

case, deprived appellant of a fair trial, or made the case for conviction more persuasive. See, e.g.,

Ruiz v. State, 753 S.W.2d 681, 686 (Tex. Crim. App. 1998) (harm egregious if burden of proof

lowered); Hutch, 922 S.W.2d at 173–74 (harm egregious when charge misstates law relevant to

contested issue); Saunders v. State, 817 S.W.2d 688, 689 (Tex. Crim. App. 1991) (harm egregious

when charge failed to inform jury accomplice testimony must be corroborated); Manning v. State,




3
 We note, however, that The State Bar of Texas has included a similar statement in its criminal pattern jury charge.
See State Bar of Tex., Texas Criminal Pattern Jury Charges: Defenses § B2.1 (2013) (“Nothing the judge has said or
done in this case should be considered by you as an opinion about the facts of this case or influence you to vote one
way or the other.”).

                                                        -8-
                                                                                     04-13-00667-CR


730 S.W.2d 744, 745 (Tex. Crim. App. 1987) (harm egregious when charge incorrectly instructed

jury on State’s burden of proof).

       Reviewing the jury charge as a whole, the state of the evidence, the arguments of counsel,

and all other relevant information, we conclude appellant was not denied a fair and impartial trial

and was not egregiously harmed.

                                         CONCLUSION

       We conclude appellant waived the right to complain about the trial court’s comment and

did not suffer egregious harm with regard to the jury charge. Therefore, we affirm the trial court’s

judgment.


                                                  Sandee Bryan Marion, Justice


Do not publish




                                                -9-
