Ahmed Olasunkanmi Salau v. State ( 2018 )

Affirmed and Memorandum Opinion filed August 23, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00130-CR
AHMED OLASUNKANMI SALAU, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 2118163
MEMORANDUM OPINION
Appellant Ahmed Olasunkanmi Salau appeals his conviction for displaying a
personal identification certificate not issued to the holder. See Tex. Transp. Code §
521.451. A jury found appellant guilty, and the trial judge sentenced him to 350 days
in jail. In a single issue, appellant asserts that he was denied a fair and impartial trial
due to comments the judge made during voir dire proceedings. We affirm.
Background
Appellant was charged after displaying a personal identification certificate
that was not issued to him while attempting to board a flight at Houston
Intercontinental Airport.1 According to the evidence, appellant attempted to board a
United Airlines flight using an “oversold” boarding pass (with no seat assignment)
in the name of Jesus Hernandez, but the boarding pass was not accepted by the gate
agent. Appellant then offered to buy a new ticket and was asked by an airlines
supervisor for a form of identification and method of payment. Appellant presented
an Ohio driver’s license issued to Davon Wells, but claimed he lost his wallet in
Chicago.
Appellant represented himself pro se in the trial court. A visiting judge was
assigned to try the case. As mentioned, appellant’s sole issue concerns comments
the judge made during the voir dire process. Appellant acknowledges not objecting
to the comments at the time they were made but asserts that the comments
constituted fundamental or structural error. He specifically complains that the trial
judge’s comments eroded the presumption of innocence, negatively reflected on
appellant’s decision to represent himself, and mischaracterized the charged offense
(a Class A misdemeanor) as akin to felony identity theft.
Applicable Law
Preservation. As mentioned, appellant contends that the trial court’s
comments constituted fundamental or structural error that did not need to be
preserved in the trial court but could be raised for the first time on appeal. The Court
of Criminal Appeals, however, has held that there is no common law “fundamental
1
Under Texas Transportation Code section 521.452, it is an offense, among other things,
to “display or represent as the person’s own a driver’s license or certificate not issued to the
person.” Tex. Transp. Code § 521.452(a)(3).
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error” exception to the rules of error preservation. See Proenza v. State, 541 S.W.3d
786, 793-94 (Tex. Crim. App. 2017) (citing Marin v. State, 851 S.W.2d 275 (Tex.
Crim. App. 1993)). As recently reiterated in Proenza, the Court in Marin explained
that the Texas criminal adjudicatory system contains three distinct kinds of error-
preservation rules: (1) absolute requirements and prohibitions, (2) rights of litigants
which must be implemented by the system unless expressly waived, and (3) rights
of litigants which are to be implemented upon request. Id. at 792; Marin, 851 S.W.2d
at 279. If alleged error falls into one of the first two categories, it may be raised for
the first time on appeal. See Proenza, 541 S.W.3d at 792.2
In light of Proenza, we reject appellant’s assertion that his unpreserved
complaints regarding the trial judge’s comments during voir dire must be addressed
on the merits because the complaint involves “fundamental error.” See id. at 792-
801. Appellant does not address the categorization of his complaints under Marin.
Assuming without deciding that appellant’s complaints fall within the first or second
Marin categories, we conclude that the trial judge’s comments do not constitute
reversible error.3 See, e.g., Loge v. State, No. 14-16-00799-CR, 2018 WL 2306916,
2
The Court in Proenza specifically addressed whether a complaint regarding a violation
of Texas Code of Criminal Procedure article 38.05, which “prohibits a trial judge from
commenting on the weight of the evidence in criminal proceedings or otherwise divulging to the
jury [the judge’s] opinion of the case,” must be preserved in the trial court to be considered on the
merits on appeal. 541 S.W.3d at 791. The Court concluded that the defendant’s “claims of
improper judicial comments raised under Article 38.05 are not within Marin’s third class of
forfeitable rights,” but that the “right to be tried in a proceeding devoid of improper judicial
commentary is at least a category-two, waiver-only right.” Id. at 801. “Because the record does
not reflect that Proenza plainly, freely, and intelligently waived his right to his trial judge’s
compliance with Article 38.05, his statutory claim in this matter is not forfeited and may be urged
for the first time on appeal.” Id. Although the appellant in the present case does not specifically
reference article 38.05, he does challenge the trial judge’s statements as improper judicial
commentary.
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Appellant cites Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality op.), in
support of his position that he can raise his issue for the first time on appeal. However, the Court
of Criminal Appeals has explained that as a plurality opinion, Blue has no precedential value.
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at *8 (Tex. App.—Houston [14th Dist.] May 22, 2018, no pet.).
Judicial impartiality. Due process requires a neutral and detached judge.
Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (citing Gagnon v.
Scarpelli, 411 U.S. 778, 786 (1973)). A defendant has an absolute right to an
impartial judge at both the guilt/innocence and punishment stages of trial. Segovia
v. State, 543 S.W.3d 497, 503 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
To reverse a judgment on the ground of improper conduct or comments of the
judge, we must find that (1) judicial impropriety was in fact committed and (2)
probable prejudice to the complaining party resulted. Luu v. State, 440 S.W.3d 123,
128–29 (Tex. App.—Houston [14th Dist.] 2013, no pet.). The scope of our review
is the entire record. Id.
Voir dire. The voir dire process is designed to insure, to the fullest extent
possible, that an intelligent, alert, disinterested, impartial, and truthful jury will
perform the duty assigned to it. Drake v. State, 465 S.W.3d 759, 764 (Tex. App.—
Houston [14th Dist.] 2015, no pet.). The purpose of voir dire examination is to
expose any bias or interest of prospective jurors which might prevent full
consideration of the evidence presented at trial. Id. Only when a trial judge’s
comments during voir dire are reasonably calculated to benefit the State or prejudice
the defendant’s rights will reversible error occur. Gardner v. State, 733 S.W.2d 195,
210 (Tex. Crim. App. 1987); Ford v. State, 14 S.W.3d 382, 393 (Tex. App.—
Houston [14th Dist.] 2000, no pet.).
Analysis
Presumption of innocence. Appellant first asserts that certain of the judge’s
statements eroded the presumption of innocence. See Tex. Code Crim. Proc. Art.
Unkart v. State, 400 S.W.3d 94, 101 (Tex. Crim. App. 2013).
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38.03; Tex. Penal Code § 2.01; Miles v. State, 204 S.W.3d 822, 825 (Tex. Crim.
App. 2006). Appellant specifically complains regarding a portion of the judge’s
comments wherein he was discussing the law regarding driver’s licenses and
identification cards. The judge explained that it is a violation of law to possess more
than one valid license or identification card at a time, even if the additional card or
cards are in your name. See Tex. Transp. Code § 521.451(a)(4). The judge then said,
“Of course, if it was somebody else’s card, it is a clear violation.” Appellant asserts
that with this statement, the judge “effectively told the jury to convict.” Appellant
maintains that “[t]here can be no presumption of innocence if the court instructs the
jury that the mere possession is a clear violation of the law.” Appellant, of course,
was charged and convicted for displaying a personal identification certificate that
was not issued to him and not merely possessing one. Compare id. § 521.451(a)(3)
with id. § 521.451(a)(4).
Appellant, however, takes the judge’s comments out of context. Immediately
before the judge’s comment that “if it was somebody else’s card, it is a clear
violation,” the judge explained that:
[Y]ou just cannot possess another person’s identification card, another
person’s driver’s license. And if you do and present it as your license,
the identification card as being your card, it is a Class A misdemeanor
. . . . And the gist of the matter is, Folks, you cannot possess . . .
somebody else’s identification card and say, that is me. Here you go.
That is me.
Viewed in context, the judge’s comments appear less like an instruction to the venire
panel that appellant should be found guilty for mere possession and more like what
they were, a general discussion of this area of the law concerning driver’s licenses
and identification cards. The judge mentioned possession but also specifically
mentioned presenting and representing another’s license or card to be one’s own, the
very violation with which appellant was charged.
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Moreover, the judge spent considerable effort in his comments to the venire
panel emphasizing that appellant was to be presumed innocent unless and until the
State proved appellant’s guilt beyond a reasonable doubt. The jury charge also
contained explicit instructions regarding the presumption of innocence as well as the
State’s burden of proof and the jury’s role as factfinder. The question asked of the
jury was also explicit in authorizing conviction only if the evidence established
beyond a reasonable doubt that appellant intentionally or knowingly displayed or
represented as his own a personal identification certificate that was not issued to
him. Viewed in context, we conclude that the judge’s comments were not improper
and did not erode the presumption of innocence. See Luu, 440 S.W.3d at 128–29;
see also McLean v. State, 312 S.W.3d 912, 917 (Tex. App.—Houston [1st Dist.]
2010, no pet.) (rejecting contention that judge’s comments during voir dire regarding
law on prostitution violated right to presumption of innocence).
Pro se status. Appellant next complains regarding comments by the judge
that appellant contends negatively reflected on his decision to represent himself.
Appellant specifically cites the judge’s following statements referencing appellant’s
pro se status:
 So, pointblank, plain English, he is on his own today. This process
should make you uncomfortable. It makes me uncomfortable.
 To his right is somebody I shanghaied today, a lawyer . . . .
 Tell your boss, Boss, I am in trial . . . for a couple of hours. And I expect
to be done with this mess by late Thursday afternoon . . . .
 I can’t cut you any slack if you don’t know what you’re doing.
Appellant suggests that the judge’s comments imported an attitude of contempt and
hostility toward appellant by questioning the wisdom of his decision, using the term
“shanghaied” to refer to the lawyer assigned to assist appellant, and referencing the
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resulting proceedings as a “mess.”
We, however, reject appellant’s characterization of the judge’s comments.
The particular statements appellant highlights came during a detailed and respectful
discussion of appellant’s decision to represent himself. The judge explained that it
was appellant’s right to do so, that “the advantages and disadvantages” of appellant’s
chosen course of action had been explained to him, and that appellant had
“knowingly and intelligently and voluntarily chosen not to hire counsel.” The judge
further counseled the venire panel members that if they were chosen as jurors they
could not “cut [appellant] any slack” but they also could not “hold [his pro se status]
against him.”
As the excerpted comments indicate, the judge did express some concern
regarding appellant’s decision, but in context this concern does not come across as
contempt or hostility. The judge was preparing the venire panel for the fact that
appellant would be representing himself—which likely would raise questions for
potential jurors—as well as the fact that the judge would not be giving appellant any
special treatment because he was acting pro se. Also, the judge asked if appellant’s
pro se status would prevent any of the venire panel members from giving either
appellant or the State a fair hearing. See Drake, 465 S.W.3d at 764 (explaining that
one of the purposes of voir dire examination is to expose any bias or interest
prospective jurors might have which would prevent their full consideration of the
evidence presented at trial).
The judge’s offhand reference to the proceedings as a “mess” does not appear
to be a reference specifically to appellant’s decision to proceed pro se, but appears
to be an attempt to offer some levity regarding the nature of criminal trials in general.
Similarly, the judge’s statement that he “shanghaied” a lawyer to offer appellant
assistance does not appear to be any type of derogatory remark aimed at appellant
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or his decision to represent himself. The judge explained that the lawyer was not
representing appellant and didn’t know the facts of the case but was only there to
assist in answering procedural questions. Taken in context, none of the highlighted
comments regarding appellant’s pro se status appear hostile or contemptuous toward
him or his choice of self-representation or otherwise improper. See Luu, 440 S.W.3d
at 128–29; see also Ganther v. State, 187 S.W.3d 641, 650 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d) (holding trial judge’s comments regarding defendant’s
pro se status were not improper); Saunders v. State, 721 S.W.2d 359, 364 (Tex.
App.—Tyler 1985, pet. ref’d) (same).
Characterization of offense. Lastly, appellant asserts that the trial judge
improperly equated the offense with which appellant was charged (a Class A
misdemeanor) with the felony offense of identity theft. Compare Tex. Penal Code §
32.51 (identity theft) with Tex. Transp. Code § 521.452(a)(3) (displaying a personal
identification certificate not issued to the holder). As appellant emphasizes, the judge
made several references to identity theft, asking which panel members had been
victims of identity theft, noting that “[i]dentity theft can be a problem,” answering
his own question “[w]hat is this about?” by, in part, discussing identity theft. He
further noted that identity theft could be used to facilitate child abduction and bank
fraud. The judge stated that “[i]t’s about truth telling, security clearances,
identification theft,” and “[t]he case suggests some kind of identity scheme.”
Appellant insists that the judge’s discussion of “the wrong law” violated his “right
to a fair trial and a fair and impartial tribunal.”
Although, in isolation, the trial judge’s statements seem to place undue
emphasis on the similarities between the offense of identity theft and the offense for
which appellant was charged, in context, it can be seen that the trial judge had at
least two legitimate reasons for referencing identity theft in this manner. First, the
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judge carefully questioned the jury regarding whether they or a family member had
been victims of identity theft in an effort to uncover potential bias pertaining to
crimes of this type. See Drake, 465 S.W.3d at 764. Although the two offenses are
not identical, and one is a misdemeanor while the other a felony, identity theft and
displaying a personal identification certificate not issued to the holder have certain
similarities such that a person victimized by one offense might hold a bias against
someone accused of the other offense. Along these lines, the judge also asked if
anyone had had a close friend or family member who “was charged with something
like this, I.D. theft, false presentation of identification,” also in an attempt to uncover
potential bias.
Second, the judge’s comments regarding identity theft were clearly part of his
attempt to explain the charged offense to the jury by means of referencing a more
commonly known offense. The judge mentioned early in the voir dire process that
he was a visiting judge, had just received the case file that morning, and had never
previously presided over a trial for displaying a personal identification certificate not
issued to the holder. In his comments, the judge appears to be working through the
specifics of the law along with the jury. Ultimately, the judge told the venire panel
specifically that appellant was charged with “present[ing] an identification card or
driver’s license that, in fact, was not him.” Indeed, by the end of his comments, the
judge had reiterated the charged offense at least three times. Moreover, during the
course of the trial, as well as in the jury charge, the judge made the elements of the
charged offense explicit.
Viewing the entirety of the record, we conclude that the judge’s comments
regarding identity theft were not improper, see Luu, 440 S.W.3d at 128-29; McLean,
312 S.W.3d at 917, and they were not reasonably calculated to benefit the State or
prejudice the defendant’s rights. See Gardner, 733 S.W.2d at 210. The comments
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did not render appellant’s trial unfair.
For the foregoing reasons, we overrule appellant’s sole issue and affirm the
trial court’s judgment.
/s/ Martha Hill Jamison
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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