            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD–0659–10



                     PEDRO ARIEL ZARATE LUCIO, Appellant

                                              v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE SECOND COURT OF APPEALS
                        TARRANT COUNTY

              M EYERS, J., filed a dissenting opinion.

                                DISSENTING OPINION

       The problem with the majority opinion is that it fails to distinguish between

supplemental instructions given during the guilt and sentencing phases of trial. During the

sentencing portion of trial, both sides are less restrained by the Rules of Evidence and

may present testimony and evidence that was likely barred during the guilt phase. For

instance, the State may introduce evidence of the defendant’s prior bad acts or crimes that

did not result in a conviction, as well as additional details of the offense at hand. TEX.
                                                                          Lucio dissent – Page 2
CRIM. PROC. CODE art. 37.07, § 3(a)(1). The differing standard allows the jury to

consider factors to mitigate or enhance punishment within the statutory range based on

the circumstances of the crime.

       During the punishment phase, the court may allow evidence as to any matter that

the court deems relevant to sentencing. Id. However, once the introduction of evidence

has been concluded, the rules and order of procedure governing the jury assessment are

the same as during the guilt portion of trial. Id. at § 3(b). In both situations, the court

should deliver the charge of the court to the jury without expressing any opinion about the

weight of the evidence. TEX. CRIM. PROC. CODE art. 36.14. As the majority notes, the

trial court’s answer to a jury question must comply with the same rules that govern the

initial jury charge since the answer is essentially a supplemental jury instruction. Maj. op.

at 4. Therefore, the court must remain neutral and not express an opinion as to the weight

of the evidence when responding to a jury question.

       Here, the trial court’s instructions indicate to the jury that it is permissible to focus

on the fact that the defendant’s family did not testify at punishment. In doing so, the judge

expressed his opinion as to the weight of the evidence in violation of article 36.14. The

judge properly directed the jurors to the jury charge when they asked whether there were

limitations on who can speak as a character witness. However, the judge implicitly

encouraged the jury to concentrate on evidence outside of the record when the court

answered the jury’s next question of whether the defendant’s family was permitted to
                                                                        Lucio dissent – Page 3
testify during the sentencing phase. The judge should again have instructed the jury to

concentrate on the evidence presented and the instructions given.

       The majority compares this case to Green v. State, 912 S.W.2d 189 (Tex. Crim.

App. 1995), where the trial court responded during the punishment phase to the jury’s

question about the content of testimony during trial. This Court held that the trial court

did not improperly comment on the weight of the evidence when it directly answered the

jury’s question with a response based on the record. Id. at 193. But here, the jury’s

question indicated that it was focused on why the defendant’s family did not testify on his

behalf. The jurors did not ask a specific question derived from the record, and the trial

court exceeded its authority by answering in a way that confirmed or denied the jury’s

suspicions as to why the family did not testify.

       The majority concludes that the rule prohibiting the court from singling out

evidence “does not necessarily apply” when the court responds to a question identified by

the jury. Maj. op. at 7. Not only does this conclusion provide little guidance to the lower

courts, but in the instant case it fails to take into account the potential damage caused by

the court’s answer. We cannot ignore the fact that a statement from a judge during the

sentencing phase may have a profound effect on the level of punishment assessed.

       An improper instruction during the guilt portion certainly may impact whether the

jury votes guilty or not guilty, but the level of harm is more easily determined based on an

analysis of the limited range of evidence allowed during the guilt phase of trial. The range
                                                                        Lucio dissent – Page 4
of evidence presented during the sentencing phase is so wide open that an instruction that

enters new evidence can shift the punishment assessed, but we cannot tell to what degree.

In the instant case, we do not know if the jury felt sorry for Appellant since his family did

not testify, or if they believed they did not testify because Appellant is a bad person. We

will never know what the jury focused on, therefore we cannot assess the harm.

       Here and in other cases, an improper instruction can drastically affect the amount

of a fine, the jail time assessed, or whether the death penalty is imposed. Since the level

of harm caused by an improper instruction is difficult to determine, the response to a jury

question must be neutral enough to withstand the same scrutiny as the initial jury charge.

The court’s response here was not neutral and improperly commented on the weight of a

matter outside the scope of the evidence. Based on the difficultly in determining the harm

caused by the trial court’s response, I would reverse the decision by the court of appeals

and remand to the trial court for a new punishment hearing.




                                                         Meyers, J.




Filed: November 9, 2011

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