### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00730- CR

Ge orge R obert P owell I II, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT

NO. 63,4 36, H ONO RAB LE JO E CARROLL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted Geor g e Rob er t Powell I I I of ag g ravated robber y . See Tex. Penal Code Ann. § 29.03 (West 2003). On appea l, Powell arg ues that the trial judge i m p er m i s s i bly commented on the weig ht of the evidenc e by instructing the jury that two defe nse wi t n es s es h ad violated Texas Rule of Evidence 614 (“the Wit ness Rule” or “the Rule”). See Tex. Crim. Proc. Code Ann. art. 38.05 (West 1979) (trial judg e may not comment on weig ht of evidenc e). Powell a rg ues that the judg e’s c omment was funda mental er ror r equiring reve rsal. We af firm the convic tion.

F ACTUAL AND P ROCEDURAL BACK GR OUND Powell was char g ed with ag g ravated robber y of a 7-Eleve n convenie nce store. The S t at e al l eg ed that Powell enter ed the store, brandished a pistol, and order ed the cler k to g i v e h i m money out of the reg ister. Powell pleade d not g uilty and went to trial. Be fore the trial commence d, the judge swore in the State’s witnesses and instructed them as follows: “You all know what the‘Witness Rule’ is, I ’m sure. The Wit ness Rule require s that y ou wait outside or rema in outside the

hear ing of the jury and of the witnesses, and don’t discuss y our testimony with any one and don’t permit any one to disc uss te stimony with y ou.” Neither party reque sted this inst ruction; rathe r, the judge g ave it sua sponte. See Tex. R. Evi d. 614 (cour t may invoke Rule of its own motion). During its case in chief

, the State called the cler

k and manag er of the 7-Eleve n store

as witnesses. Both identified Powell as the man who robbed their store. The State then called two cler ks from Mickey ’s, another are a convenie nce store that was robbed the day befor e the 7-Eleve n. 1 The Mickey ’s cler

ks identified Powell as the man w ho robbed their store. They also testified t hat they had watche d the videotape of the 7-Eleve n robber y and believed that it depicted the same person who robbe d Mickey ’s.

After the State rested its case , the defe nse called the cler k and manag er of a third are a convenie nce store, a Valer o, that was ro b b ed t welve day s befor e the 7-Eleve n. The Valer o employ ees, Sherry Rose and Victoria Noy ola, wer e not prese nt when the Rule was invoked and the State’s witnesses sworn in befor e trial. Rather, the judge swore in Rose and Noy ola just befor e they testified on the third day

of trial and g ave the m no instructions on the Rule. Rose testified that she knew Powell persona lly beca use he had come into the Valer o store sever al times. She also testif i ed t h at she believed Powell was not the man who robbed the Valer o store beca

use Powell was taller than and spoke differ ently from the robber

. Noy ola then

Powell did not object to the admission of testimony reg arding this extraneous offe nse. 1 I ndeed, a s we discuss below, he introduced e vidence of a third extraneous offe nse. I t a ppear s that both parties assumed extraneous-off ense evidenc e was rele vant to establishing the identity of the 7- Eleven r obber. See Tex. R. Evi d. 404(b). 2t es tified that she had seen the videotape of the 7-Eleve n robber y and believed that it s h o we d t h e

same man who had robbed t h e Va l ero store, but she did not believe that that man was Powell. Noy ola ec hoed Rose’s be lief that Powell was taller than the robbe r. On cross-e x amination, Noy ola admitted that ear l i er in the day she and Rose had discussed the Valer o robber y while in the p r e s e n c e of a private investigator employ ed by the defe nse. Noy ola claimed, howeve r, that she and Rose had not “ shar[ed] infor mation” or tried “to g et [t heir] stories straig ht” during the discussion. The prosec utor then asked the judge to excuse the jury from the cour troom, and the following exchang e occ urre d:

PROS ECUTOR: J udg e, based on Ms. N oy ola’s testimony , . . . Ibelieve we’ ve g ot a violation of the Rule. COURT: W ell, the Rule was ne ver invoke d with those folks. PROS ECUTOR: That was the other thing. Icouldn’t re member w hen we broug ht ever y body in. I d i d n ’t reme mber if y ou instructed them that the Rule had been invoked. COURT: Well, the Rule was invoked except for these witnesses. They just showed up today

. PROS ECUTOR: Well, no. Once the Rule is invoked, J udg e, the attorney s have an obliga tion to tell t he witnesses. COURT: W ell, Ihadn’t told the witnesses a ny thing. PROS ECUTOR: Right. I understand that. Ijust need to look at that and for us to have a chanc e to talk, and then w e ca n do further

cross-e x amination if we ne ed to.

After a brief rec ess, the State moved to strike the testimony of Rose and Noy ola for violation of the Rule. Def ense counsel countered that Rose and Noy ola had not violated t he Rule

3beca

use they had discussed the case befor e they wer e sworn in, and to strike their testimony would deprive Powell of his rig ht to a fair trial. The judge expressed the prac tical difficulty of striking the testimony afte r the jury had alre ady h ea rd i t , an d h e asked the parties if they could rea ch an ag ree ment about keeping the testimony in but instructing the jury that Rose and Noy ola had violated the Rule. Defen s e co u nsel sug g ested that such an instruction would constitute an impermissible comment on the we ight of the evidenc e. After another rec ess, defe nse counsel informed the judge that he had lear ned a ne w d et ai l : Rose and Noy ola had not only spoken about the robber y ear lier in the day but had al s o watche d the 7-Eleve n video tog ether . At that point the proce eding s went off the re cord. When the proce eding s went back on the rec ord, the j udg e rec alled the jury to the
courtroom a

nd told it t he following :

L adies and g entlemen, sometimes I h av e t o g ive y ou leg al instructions, and at this stag e of the trial I

have a leg al instruction I

want to g ive y ou. The leg al instruction is pretty simple. On M o n d ay morning befor e the trial starts the judge g ets all the witnesses toge ther and swea

rs them all in to tell the truth befor e they start. And y ’all know that beca use y ou have seen some of the witnesses have come up here , and I said, “Have y ou alre ady been sworn in? ” And, y ou know, 90% of them have alre ady been sworn in. All righ t

. At that time when I swea r t hem i n I g ive t hem t he ins truction on the “[R] ule,” the Wit ness Rule, and I tell them from now on y ’all can’ t talk about the case , y ou can’ t discuss the case , y ou can’ t let any body discuss the ca se with y ou or any thing like that. You just have to come in, prese nt y our testimony without reg ard to what somebody

else ha s said. All rig ht. So that’s the Wit ness Rule, and, of course , the lawy ers know that. The lawy ers are supposed to tell all the witnesses about the Wit ness Rule if they are not here

. T h e l as t t wo witnesses that we had wer e Mrs. Rose and Ms. Noy ola, and those wer e the t wo witnesses that talked toge ther Monday afte r the Rule was invoked, viewe d the video tog ether and discussed it with the investig ator, a nd they

4wer en ’t s upposed t o do that. So, I just want y ou to know t hat. And t hen with that

we’ ll just g o on with our trial. The judg e then a sked the pa rties, “Any

thing e lse? ” De fense counsel a nswere d, “No, sir.” After both sides rested, the jury found Powell gu i l t y of robbing the 7-Eleve n and imposed a twenty -eig ht-y ear sentenc e. Powell appe als.

STANDARD OF REVIEW To constitute reve rsible err or, a trial court comment reg arding t h e we i g ht of the evidenc e “must be such that it is rea sonably calc ulated to benef it the State or to prejudice the rig hts of the defe ndant.” Bec knell v. State , 720 S.W .2d 526, 531 (Tex. Cri m . App. 1986). This occur s when the court “make s a statement that implies approva l of the State’s arg ument, that indicates any disbelief in the defe nse’s position, or that diminis hes the cre dibilit y of the defe nse’s approa ch to its

case .” W atts v. State , 140 S.W .3d 860, 863 (Tex. App.—Houston [14t h Dist.] 2004, pet. re f’d)

.
DISCUSSIO N Texas Rule of Evidence 614 provides that at the reque st of a party or on the court’s

own motion, the court “shall order witnesses excluded” from the courtroom “so that they cannot hear the testimony o f o t her witnesses.” Tex. R. Evid. 614. Once invoked, the Rule also prohibits witnes ses from discussing the case outside the courtroom. See Tex. Crim. Proc. Code Ann. art. 36.06 (West 1979).

Powel l arg ues that the trial judge impermissibly commented on the weig ht of the evidenc e by

telling the jur

y that Rose and Noy ola vi olated the Rule. See id

. art. 38.05 (trial judge

5may

not comment on weig ht of evidence) . We hold that Powell waived this arg ument beca use he did not object to the judge ’s statement.

Gene rally , to prese rve a complaint for appellate revie w, a party must make a timely , specific objection in the trial court. See Tex. R. App. P. 33.1(a) ; Peav ey v. State , 248 S.W .3d 455, 470 (Tex. App.—Austin 2008, pet. ref ’d). Her e, Powell did not object to the trial judge ’s statement that R o s e an d No y o l a had violated the Rule. I n fac t, afte r the judge told the jury that Rose and Noy ola had v i o l at ed t h e Rule, the judge addre ssed counsel direc tly and asked, “Any thing else? ” Def ense counsel answe red, “No, sir.” Thus, Powell waived any arg ument that the court improperly commented on the w eig ht of the evide nce. See id

. 2 Powell conce des that he failed to object, but he arg ues that the trial court’s statement tainted his presumption of innocenc e and there fore repr esente d funda me n ta l e r r o r tha t did not require objection. See Tex. R. Evid. 103(d) (in criminal case , appellate court may note fundame ntal err ors that wer e not raised in trial court); see also Almanza v. State , 686 S.W .2d 157, 171 (Tex. Crim. App. 1984) (f undamental e rror

is error so eg reg ious that it deprives defe ndant of rig ht to fair trial). To support his fundame ntal-er ror arg ument, Powell relies primarily on Blue v. State , 41 S.W .3d 129 (Tex. Crim. App. 2000). I n Blue , the trial court told the venire that the defe ndant had attempted to strike a plea barg ain with the State and that the trial court wi s h ed t h e d efe ndant had

For the s ame r eason, Powe ll waived the a rg ument that Rose and Noy ola did not actually 2 violate the Rule. Powell does not enumer ate this arg ument as a separ ate point of err or, but he makes it in passing

. Even if Powell had not waived the arg ument, which he bases on the fac t that the court invoked the Rule befor e Rose and Noy ola wer e sworn in, it would n o t co n s titute g rounds for reve rsal; the Rule applies to all prospec tive witnesses once invoked, and the parties are obliga ted to ensure that it is obey ed. See W ebb v. State , 766 S.W .2d 236, 245 (Tex. Crim. App. 1989).

6pleade d g uilty

. Id

. at 132-33. A plurality of the court of criminal appea ls held that the trial court’s

statemen t s tainted the presumption of innocenc e, constituting fundame ntal err or and there fore requiring no objection to prese rve e rror . Id

.

The plurality opinion in Blue is not binding prec edent, see Jasper v. State , 61 S.W .3d 413, 421 (Tex. Crim. App. 2001), but even if it wer e, the trial court’s comments in this case did not rise to the level of those in Blue

. The comments in Blue touched upon the core issue of a defe ndant’s g uilt or innocenc e. See Blue , 41 S.W .3d at 132 (“A juror who hear s the judge say that he would have pref err ed that the defe ndant plead g uilty might assume th at t h e judge knows something about the g uilt of the defe ndant that the juror does not. Surely , no trial judge would want an innocent man to plead g uilty , no matter how much delay and expense he might be causing .”). Her e, in contra st, the trial court stated only that two defe nse witnesses violated the Rule. At most, the court’s statement sug g ested that the witnesses’ testimony might not be cre dible. See W atts , 140 S.W .3d at 863 (cour t 3
comment on evidenc e is improper if it diminis hes cre dibilit y of defe nse’s approa ch to case ). Powell cites no authority sug g esting that such a statement represents fundamental err or, and signific ant authority sug g est s t h at it does not; Texas courts have indicated that improper comments may

re p re s en t fundamental err or when they taint the presumption of innocenc e or undermine the impartiality

of t he jury

. See, e .g. , Jasper , 61 S.W .3d at 421 (holding that even unde r re asoning of Blue , trial judge ’s comments would not rise to level of fundamen t al er ro r beca use they lacke d elements that would taint presumption of innocenc e or prejudice the jury ); Ganther v. S t a t e ,

We note, though, that even though the court mentioned the Rule violation to the jury , it did 3 not say whether or how the violation should aff ect the jur y ’s view of

the evidenc e. 7187 S.W .3d 641, 650-51 (Tex. App.—Houston [14t h Dist.] 2006, pet. ref ’d) (conc luding that even if court of appea ls wer e bound b y B lue plurality , trial judge ’s comments did not rise to level of tainting presumption of innocenc e or vitiating impartiality of the jury ). Powell asser

ts that the trial court’s comment on the R ule violation did “taint his presumption of innocenc e,” but we disagr ee;

a sug g estion that two witnesses may be untrustworthy is very differ ent from a sug g estion that the defe ndant may be g uilty

. Cf

. Blue , 41 S.W .3d at 132 (cour t tainted presumption of innocenc e when it told jur y t hat defe ndant had soug ht plea barg ain and that court wished defe ndant had pleade d g uilty ). I n sum, we conclud e th a t th e tr ia l court’s statement reg arding Rose and Noy ola’s Rule violation does not rise to the l evel of fu n d am en t al er ror. See Jasper , 61 S.W .3d at 421; Ganther , 187 S.W .3d at 650-51. Be cause Powell did not object to the trial court’s comment and beca use the alleg ed err or was not fundame ntal, Powell’s complaint is waived. See id

. We aff irm the conviction.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: Apr il 15, 2011 Do Not Publish

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