Opinion filed November 3, 2011




                                           In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-10-00029-CR
                                        __________

                       TIMOTHY JOHN MORRIS, Appellant

                                              V.

                             STATE OF TEXAS, Appellee


                           On Appeal from the 29th District Court

                                   Palo Pinto County, Texas

                                 Trial Court Cause No. 13929O


                           MEMORANDUM OPINION

       The jury convicted Timothy John Morris of the offense of engaging in organized criminal
activity by conspiring to deliver more than 400 grams of methamphetamine. The trial court
assessed punishment at confinement for fifty years and a fine of $20,000. We affirm.
       Appellant has briefed three points of error. In the first point, appellant complains of
prosecutorial misconduct and the violation of appellant’s right to due process. In the second
point, appellant complains of judicial misconduct violating appellant’s rights under the Fifth
Amendment. In his final point, appellant contends that the trial court abused its discretion in
dealing with a possible violation of “the Rule.” See TEX. CODE CRIM. PROC. ANN. arts. 36.03,
.05, .06 (West 2007); TEX. R. EVID. 614.
       In his first point, appellant complains that the prosecutor improperly misled the jury when
he asked Agent Darla Dowell the following questions: “You didn’t buy from Tim Morris
because he was already gone, right?” and “It was impossible, wasn’t it?”             Appellant also
complains of inconsistencies in Daria Price’s testimony and in pictures of Price that were
introduced into evidence. Appellant did not object to any of these items at trial. Therefore, he
has not preserved his complaint for appellate review. TEX. R. APP. P. 33.1. Appellant’s first
point of error is overruled.
       In his second point, appellant contends that his Fifth Amendment rights were violated by
the trial court’s threat to give him a more severe sentence if he did not “come clean” and admit
his guilt. The record from the punishment hearing does not support appellant’s contention. The
Fifth Amendment prohibits increased sentences due to an accused’s refusal to testify. It also
prohibits an accused from being compelled to testify against his will at the sentencing hearing.
Estelle v. Smith, 451 U.S. 454, 463 (1981).
       The record in this case shows that, at the end of the punishment phase of trial and after
the trial court had sentenced appellant, the trial court explained its reasons for assessing a fifty-
year sentence and encouraged appellant to live the remainder of his life productively. In relevant
part, the trial court’s comments read as follows:
              Mr. Morris, it gives me no great pleasure to send people to prison under
       these circumstances. And in assessing punishment, I considered several
       matters . . . .

                 Another factor that I consider is -- call me old fashioned, but to receive
       consideration, you need to accept responsibility; and you still haven’t quite done
       it. . . .

               And I don’t know if you were given an opportunity to do that or not, but
       you chose to testify in this punishment phase of the trial, and you still don’t admit
       the true depth and breadth of your responsibility as presented by the evidence in
       this case.

These statements did not threaten a lengthier sentence.         When the trial court made these
statements to appellant, appellant had already voluntarily waived his Fifth Amendment right not
to testify and had testified at the punishment phase of trial. Also, his punishment had already


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been assessed at the time of the comments. Appellant was not compelled to be a witness against
himself, and his Fifth Amendment rights were not violated. The second point of error is
overruled.
       In his final point, appellant contends that the trial court abused its discretion in failing to
talk to Price’s mother and attorney regarding the possible violation of “the Rule” by Price. The
record shows that, when Price was called to testify, appellant approached the bench to discuss
the possible violation and asked the trial court to determine “if her family has shared any notes
[of the testimony] with her.” Appellant thought that one of the women with Price had been
taking notes. The record shows that the trial court inquired of Price whether she had heard the
instructions about not discussing testimony or comparing notes with anybody. Price indicated
that she heard the trial court’s admonishment. The trial court then inquired about Price’s mother
taking notes. Price stated that her lawyer, not her mother, was taking notes and that they had not
relayed any conversation or testimony from the courtroom. Price stated that she had not violated
“the Rule.” The trial court did not ask Price’s mother or Price’s attorney whether they had
relayed any information to Price, and appellant did not request that the trial court discuss the
matter with either of them.
       We cannot hold that the trial court abused its discretion in failing to question Price’s
mother or attorney. The trial court addressed the matter directly with Price, and she informed the
trial court that she had not violated the trial court’s instructions under “the Rule.” The trial court
was not required to inquire further, and appellant has not shown what either Price’s mother or
attorney would have stated had they been questioned. The record does not indicate that “the
Rule” was violated. Appellant’s third point of error is overruled.
       The judgment of the trial court is affirmed.




                                                              JIM R. WRIGHT
                                                              CHIEF JUSTICE
November 3, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.


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