Effrin Jermon Smith v. State ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-06-00187-CR ______________________________



EFFRIN JERMON SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Sixth Judicial District Court Lamar County, Texas Trial Court No. 21440

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Effrin Jermon Smith pled guilty in this case to a charge of possession with intent to deliver a controlled substance, between four and 200 grams, in a drug-free zone, with a deadly weapon finding. The case was tried to the court on punishment, resulting in a twenty-five-year sentence.

On appeal, Smith contends we should reverse for a new punishment hearing because he did not adequately waive his right to a jury trial on punishment. Counsel properly asserts that the United States Constitution as interpreted by the United States Supreme Court requires an affirmative intentional relinquishment of the right to a jury trial, and that Texas statutory law also requires the right to a jury trial to be waived in writing. As to this case, counsel also appropriately admits that Smith expressly waived his right to a jury trial by signing written admonishments providing such waiver.

In this case, Smith signed an express waiver of his right to have a jury pass on his guilt/innocence and his punishment. That meets the requirements of Article 26.14 of the Texas Code of Criminal Procedure:

Where a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.

Tex. Code Crim. Proc. Ann. art. 26.14; see Scott v. State, 173 S.W.3d 856, 869 (Tex. App.--Texarkana 2005, pet. granted).

Article 37.07 provides that, if a finding of guilt is returned, the defendant may, with the consent of the attorney for the State, change his or her election of one who assesses the punishment. Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b) (Vernon 2006). That article does not apply in this instance.

Article 1.13 provides that a defendant may, on entering a plea, waive the right of trial by jury--in writing, in open court, with the consent and approval of the court and the attorney representing the State. Tex. Code Crim. Proc. Ann. art 1.13 (Vernon 2005). That article is directly applicable here.

Smith waived, in writing, his right to trial by jury on guilt/innocence and his right to have a jury assess his punishment. The omnibus document containing admonishments, waiver, application for probation, and approval by the State and the trial court is part of the record. On its face, the document reflects that Smith waived his right to a jury trial on punishment, meeting the requirements of the Code.

Because no error has been shown, we affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: February 26, 2007

Date Decided: April 17, 2007

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Instead, Ms. Skinner and Ms. Griffis send the pleadings and file and the exhibits and Ms. Skinner's transcript of what happened in this trial, up to Texarkana to three judges. They sit together and the three of them read the record and determine whether or not I made an error in one of my rulings. They don't determine whether or not they agree with the jury verdict. Nobody may agree with the jury verdict, but that is not what they review. They review my rulings and cases are reversed when the three judges up there think the court, the judge, made an incorrect ruling. So, Ms. Skinner has to get everything that happens, including all my rulings, what I said, objections, etcetera, during the course of the trial, and during jury selection. At the end of that I will be asked to decide whether or not certain of you that indicated you knew someone or knew something about the case, whether or not you could be impartial jurors and that could be subject to review by the appellate court, so she has to get all of that into the record. Because it is a part of the trial of this case.

Wilson likens the trial court's comments to part of the trial court's charge to the jury, and argues that the portion about reviewing a verdict on appeal is incorrect and constituted fundamental error because it could have led the potential jurors to believe they could return an unfair verdict and/or assess a disproportionate punishment, and their actions in doing so would be immune from correction on appeal. We disagree with this argument for several reasons.

The comments related above are not part of the court's charge to the jury. The trial court's charge to the jury is copied in the record and appears to be without error. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). Wilson makes no attack on the correctness of the court's charge. The comments of the trial court in question here were given as part of the preliminary qualifying instructions to the venirepanel. The giving of admonitory instructions to the venirepanel before trial is within the discretion of the trial court. York v. State, 566 S.W.2d 936, 938 (Tex. Crim. App. [Panel Op.] 1978); Walker v. State, 440 S.W.2d 653, 658 (Tex. Crim. App. 1969). Comments on the evidence or other remarks by the trial court constitute reversible error only if they are reasonably calculated to benefit the State or prejudice the defendant's rights. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979); Davis v. State, 651 S.W.2d 787, 789 (Tex. Crim. App. 1983). The remarks challenged by Wilson are not of that character.

Wilson suggests that the jurors in this case may have been led by the trial court's preliminary remarks to believe they were free to render an unfair verdict or punishment, even though not justified by the facts, because their findings could not be overturned on appeal. For us to make that assumption would be to engage in the rankest sort of speculation completely unwarranted by the record. Wilson also suggests, because there was considerable mitigating evidence tending to show it was totally uncharacteristic for him to commit such a cruel and unprovoked crime of killing his sister in cold blood, the jurors probably assessed a disproportionate and excessive punishment because they thought it could not be overturned on appeal. We find no evidence that the jurors were motivated by such a corrupt purpose. Indeed, we presume the jurors obeyed the court's charge, which required them to base their findings solely on the evidence and the law. See Tex. Code Crim. Proc. Ann. art. 36.14; Schepps v. State, 432 S.W.2d 926, 931 (Tex. Crim. App. 1968). We find it more likely that the jurors based their ninety-nine-year punishment on the nature and circumstances of the extremely violent and unprovoked murder of Wilson's sister, not because of an erroneous conception of appellate law.

Further, considering the context in which the trial court's remarks were made, we find there was no error. The trial court was simply explaining to the venirepersons that, because the appellate court bases its decisions on whether the trial court made errors in its rulings, instead of simply deciding if it disagrees with the verdict, it is very important that the venirepersons speak clearly and audibly in answering the questions put to them so the court reporter can transcribe their answers and have a correct written record to send to the appellate court in case of an appeal. As concerns the trial court's comment that an appellate court does not review whether it disagrees with a jury's verdict, that statement is true. No appellate court is allowed to overturn a jury verdict because it disagrees with it, but only if the verdict is supported by no evidence or factually insufficient evidence. And we should not speculate that the potential jurors would read into the court's remark more than what it plainly said.

Even if the trial court's remark could be considered error, it certainly was not fundamental or structural error, and because Wilson made no objection whatsoever to the remark when it was made, he has not preserved error. See Thomas v. State, 533 S.W.2d 796 (Tex. Crim. App. 1976); Esquivel v. State, 506 S.W.2d 613, 616 (Tex. Crim. App. 1974); McCary v. State, 477 S.W.2d 624, 629 (Tex. Crim. App. 1972); Carew v. State, 471 S.W.2d 860, 862 (Tex. Crim. App. 1971); Hoang v. State, 997 S.W.2d 678, 683 (Tex. App.--Texarkana 1999, no pet.).

For the reasons stated, we affirm the judgment of the trial court.

William J. Cornelius

Justice*

*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

Date Submitted: June 22, 2007

Date Decided: July 19, 2007

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