Bailey v. State , 848 S.W.2d 321 ( 1993 )

OPINION

COHEN, Justice.

A jury found appellant guilty of delivering cocaine. Appellant pled true to two enhancement paragraphs, and the jury assessed punishment at 60-years confinement. We reverse and remand.

In his third point of error, appellant asserts the evidence is insufficient. We review the sufficiency under the standard set out in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The evidence showed appellant made a face-to-face, hand-to-hand sale of cocaine to a Houston police officer. He was arrested minutes later, despite his attempt to flee. The officer identified appellant at trial. The evidence is sufficient.

The third point of error is overruled.

The first point of error asserts the judge erred by instructing the jury during the guilt stage of trial that “certain evidence was admitted before you in regard to the defendant’s having been charged and convicted of an offense or offenses other than the one for which he is now on trial.” That was not true. No such evidence was admitted. No such evidence could have been properly admitted during the guilt stage, unless appellant had testified and the State had offered it to impeach his testimony. Appellant did not testify; therefore, the State did not offer such evidence. Nevertheless, the judge read this statement to the jury orally, and the jurors took it with them into the jury room for guidance as they deliberated on the case.

The language that followed the erroneous instruction made the harm worse. It stated:

Such evidence cannot be considered by you against the defendant as any evidence of guilt in this case. Said evidence was admitted before you for the purpose of aiding you, if it does aid you, in passing upon the weight you will give his testimony, and you will not consider the same for any other purpose.

This language drew the jury’s attention to the fact that appellant did not testify. Although the charge contained a separate instruction on the defendant’s right not to testify, the above-quoted instructions immediately followed it and told the jury to consider the fact of his (then unproved) prior convictions in evaluating his “testimony.”

This charge is erroneous for several reasons. First, it not only comments on the weight of the evidence, it does so falsely. Tex.Code Crim.P.Ann. art. 36.14 (Vernon Supp.1993). Second, it draws the jury’s attention to the fact that the defendant exercised his fifth amendment right to remain silent. Tex.Code Crim.Proc.Ann. art. 38.08 (Vernon 1981).

The State contends the error was harmless because there was no evidence or argument about any prior convictions. We disagree. That is precisely why the error was harmful. Moreover, under that standard, reversal would never occur. If prior convictions were proved, there would be no error. If not, there would be error, but no harm.

The State further contends the charge was harmless because the evidence was overwhelming. The evidence showed a face-to-face delivery by appellant to an undercover officer, followed quickly by an arrest. The defendant called no witnesses, except one of the police officers. The jury took only 13 minutes to reach a guilty verdict. We agree that the evidence was overwhelming. Nevertheless, we reverse.

Some standards should never be violated, no matter what the evidence shows. One is that a judge should never tell a jury a defendant has been convicted of other crimes when the evidence does not show that. Another is that a judge should not comment on the defendant’s failure to testify by telling the jury to use the unproved prior convictions to evaluate the credibility of the defendant’s nonexistent testimony. If a judge does that, both lawyers normally will object. Here, the judge did and the lawyers did not.

This instruction was more likely to interfere with the jury’s deliberations than several other jury charge errors that have required reversal under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g). See, e.g., Jones v. State, 815 S.W.2d 667, 670 (Tex.Crim.App.1991) (charge instructed the jury in the abstract on the law of parties, but failed to apply the law of parties to facts of the case); Daniels v. State, 754 S.W.2d 214, 222 (Tex.Crim.App.1988) (charge authorized conviction for actual delivery, but indictment alleged only constructive delivery of controlled substance); Ruiz v. State, 753 S.W.2d 681, 687 (Tex.Crim.App.1988) (failure to instruct jury that State had the burden in murder case to prove the absence of sudden passion). This jury charge is simply below the minimum standard the law should require.

We sustain point of error one. We need not reach point of error two, alleging ineffective assistance of counsel.

The judgment is reversed, and the cause is remanded.