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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-15-00244-CR

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RODARRION D. ARMSTRONG, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the 1A District Court 

Jasper County, Texas

Trial Cause No. 12170JD

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MEMORANDUM OPINION 

A jury found Rodarrion D. Armstrong (Armstrong or Appellant) guilty of 

murder. In one appellate issue, Armstrong appeals the trial court’s denial of 

Armstrong’s motion for new trial. We affirm.

We review a trial court’s denial of a motion for new trial under an abuse of 

discretion standard. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). 

We will not substitute our judgment for that of the trial court; rather, we must 
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decide whether the trial court’s decision to deny the motion was arbitrary or 

unreasonable. Id. “A trial court abuses its discretion in denying a motion for new 

trial only when no reasonable view of the record could support the trial court’s 

ruling.” Id. We view the evidence in the light most favorable to the trial court’s 

ruling, deferring to its credibility determinations and presuming all reasonable 

factual findings that could have been made in support of its ruling. See Colyer v. 

State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014); Quinn v. State, 958 S.W.2d 

395, 401-02 (Tex. Crim. App. 1997). 

In his sole appellate issue, Armstrong argues that the trial court erred in 

denying Armstrong’s motion for new trial in which he argued he was prejudiced by 

the trial court’s improper comment. The comment singled out and complained of 

by Armstrong on appeal occurred during the guilt/innocence phase of the trial after 

the State had rested:

[Prosecutor]: State rests.

(State rests)

THE COURT: Okay. [Defense counsel], the State has rested.

[Defense counsel]: Defense rests.

(Defense rests)

THE COURT: Okay. Both the Defense and the State have rested; 

is that correct?
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[Prosecutor]: That’s correct, Your Honor.

THE COURT: [Defense counsel]?

[Defense counsel]: (Conferring with Defendant)

THE COURT: Well, I’m going to give you a moment to confer 

with your client and then you can tell me if y’all both -- if you rest.

[Defense counsel]: We rest.

(Defense rests) 

Armstrong did not object at trial to the court’s comment. The jury found 

Armstrong guilty and assessed punishment at twenty-five years in prison. 

Armstrong filed his motion for new trial, and he argued, among other things, that 

“the trial court erroneously challenged defense counsel’s decision [to] rest and not 

call any witnesses on behalf of the defendant in the guilt/innocence phase of the 

trial in the presence of the jury.” The trial court denied Armstrong’s motion for 

new trial. Armstrong requested that the trial court file findings of fact and 

conclusions of law. Armstrong appealed. The trial court subsequently filed 

findings of fact and conclusions of law, and included the following finding:

After the State announced that it had rested in the 

guilt/innocence phase of trial, the Court asked defense counsel if he 

would be calling any witnesses. At that time, defense counsel was 

conferring with the Defendant, so after their conversation concluded, 

the Court inquired again, at which time defense counsel announced 

that the Defendant rested. By repeating herself, it was not the Court’s 

intention to “challenge defense counsel’s decision,” but to give the 
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Defendant adequate time to consult with his attorney and then clarify 

whether or not the defense would be calling witnesses. The Court 

made no comments that could be reasonably deemed to call defense 

counsel’s decision-making into question. 

On appeal, Armstrong complains that the trial court’s comment 

“challeng[ing] defense counsel’s decision to rest[]” was improper because it 

“diminished the credibility of the defense’s approach to its case to the jury.”

Armstrong alleges the trial court’s comment violated 38.05 of the Texas Code of 

Criminal Procedure and deprived him of a fair and impartial trial. According to 

Armstrong, he was “probably” prejudiced by the comment because “[t]he jury 

could have very easily implied that counsel had not even discussed with his client 

whether to call any witnesses for the defense before trial, that counsel had not been 

prepared to come to trial, that counsel had not communicated with his client before 

trial, that the [c]ourt was suggesting that counsel should be calling witnesses for 

the defense, explaining why the defense did not have any witnesses, or that a 

burden of proof was on the defense.”

Under article 38.05 of the Texas Code of Criminal Procedure, a judge shall 

not discuss the evidence. See Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979). 

Specifically, 

[i]n 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 
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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.

Id. The record demonstrates that Armstrong failed to object to the complained-of 

comment. Generally, to preserve error, a defendant must make a timely and 

specific objection. See Tex. R. App. P. 33.1(a); Moore v. State, 275 S.W.3d 633, 

636 (Tex. App.—Beaumont 2009, no pet.) (noting that the contemporaneous 

objection requirement encompasses a complaint about a trial court’s remarks that 

amount to a comment on the evidence); Ganther v. State, 187 S.W.3d 641, 650 

(Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (noting that absent an objection 

to the trial court’s comments, a defendant waives error unless the error is 

fundamental).

When complaints of error are not preserved by objection or other means of 

preserving error, the error is considered to have been waived unless it is 

fundamental, meaning that the error creates egregious harm. See Villareal v. State, 

116 S.W.3d 74, 85 (Tex. App.—Houston [14th Dist.] 2001, no pet.); see also 

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Egregious harm is 

such harm that a defendant is deprived of a fair and impartial trial. Almanza, 686 

S.W.2d at 171; see also Jasper v. State, 61 S.W.3d 413, 420-21 (Tex. Crim. App. 

2001) (concluding that in the absence of an objection to the trial court’s comment, 
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complaint about the comment at issue was waived and did not constitute 

fundamental harm). A trial court’s comments do not constitute fundamental error 

unless they rise 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 Jasper Court 

recognized that several types of comments do not rise to the level of fundamental 

error, including those the trial court makes to correct counsel’s misstatement or 

misrepresentation of previously admitted testimony, to maintain control or 

expedite the trial, to clear up a point of confusion, or to reveal irritation at counsel. 

Id.

Because Armstrong did not lodge a timely objection, except as to 

fundamental error, his complaint was waived. See Tex. R. App. P. 33.1(a); Moore, 

275 S.W.3d at 636. Additionally, upon review of the record for fundamental error, 

we conclude the comment and ruling at issue did not affect Armstrong’s 

substantial rights. Specifically, the complained-of comment by the trial court 

sought clarification of whether or not the defense wanted to call witnesses. Jasper, 

61 S.W.3d at 421 (finding no fundamental error where trial court’s comments were 

made to clear up a point of confusion). Armstrong has not demonstrated that the 

trial court’s comment constituted fundamental error or that he was deprived of a 

fair trial. Appellant’s issue is overruled. The trial court’s judgment is affirmed.
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AFFIRMED.

_________________________

 LEANNE JOHNSON

 Justice

Submitted on October 11, 2016

Opinion Delivered October 19, 2016

Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.