COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
DAVID BARRON, No. 08-12-00184-CR §
Appellant, Appeal from the §
v. 210th District Court §
THE STATE OF TEXAS, of El Paso County, Texas §
Appellee. (TC# 20120D01101)
§
OPINION
David Barron appeals his conviction for aggravated assault with a deadly weapon. We affirm his conviction as modified.
BACKGROUND
Factual History
This case arises from a traffic incident involving victim Robert Sierra and another driver Sierra positively identified as Barron at trial. On December 1, 2011, Sierra was riding his Kawasaki motorcycle along North Loop Road in El Paso, Texas, when he was approached from behind by a maroon Chevrolet Silverado truck traveling at a high rate of speed. Sierra, who was traveling in the left lane, switched over to the right lane on North Loop Road. Sierra then saw the truck pull up next to him in the left lane. According to Sierra, the truck’s driver laughed at him, and then “threw the truck” towards him by steering “pretty quickly” into Sierra’s lane.
Sierra was forced out of the right lane into the emergency lane on the far right of the road. Sierra testified that if he had not driven onto the shoulder, the truck would have hit him and his motorcycle would have fallen over.
As Sierra drove in the emergency lane, he saw another vehicle ahead of him with its hazard lights flashing. Sierra then wove his way between the vehicle in the emergency lane and the Chevrolet Silverado in the right lane at speeds in excess of the posted 45-mile-an-hour speed limit. The Silverado swerved toward Sierra again. Sierra passed the truck, re-entered the right lane, and decelerated. However, the truck came toward him again from behind, so Sierra sped up and approached the intersection of North Loop Road and Link Street, where Sierra lived. Sierra turned onto Link Street, but lost control of the motorcycle and began to slide before regaining control again. After turning, Sierra failed to notice a truck stopped at a three-way stop sign on the road ahead of him. He braked and “lightly” hit the back of the stopped truck. Meanwhile, the maroon Silverado drove past Sierra on Link Street. The Silverado avoided hitting an oncoming car in the opposite lane, but the Silverado’s driver lost control of the truck and hit an SUV parked in front of Sierra’s neighbor’s house before driving off.
Other State witnesses at trial testified that they either witnessed the accident or else heard loud noises, exited their houses, and witnessed the immediate aftermath of the accident. Sierra’s brother Christopher testified that he left the family house after hearing his brother rev his motorcycle engine. According to Christopher, he saw Sierra get on top of the sidewalk and a red or maroon Chevy hit a parked SUV. Christopher stated he was about thirty feet away from the crash. He identified Barron as the driver of the truck that struck the SUV. Neighbor Stephanie Romo testified that she was about to leave her house to go have a cigarette when she heard Sierra revving his motorcycle engine and then a loud boom. She went outside and saw a maroon truck
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speed off. She and Christopher Sierra then tried to find the maroon truck, but could not locate it. Robert Sierra testified that he and some family members searched for the truck and later found it parked at a gas station on the corner of North Loop Road and Pendale Street with Barron and another individual standing outside.
Later that night, in connection with his investigation of the Link Street hit-and-run, El Paso Police Department Officer Joel Holguin attempted to conduct a felony stop of a green Yukon, but the vehicle sped off as Officer Holguin approached on foot. Following a chase, the green Yukon crashed into a canal. One suspect ran off and was not arrested. The other occupant of the vehicle, Barron, was arrested at the scene.
Following Barron’s arrest, Robert Sierra met police at the EPPD’s Mission Valley Substation. EPPD Officer Adrian Arellano then conducted a “one-on-one,” which he described as an identification procedure in which police “take the victim at a safe distance, either in a vehicle or behind the light so the subject cannot see him and he sees . . . whether he recognizes him or not.” In this case, officers placed a spotlight on Barron. Sierra, who was standing thirty yards away, viewed Barron through binoculars and positively identified Barron as the driver of the maroon truck.
At trial, the defense presented testimony from Martha Barranco. She testified that she owned a maroon-colored 1999 Chevrolet Silverado, and that she loaned her husband Antonio the vehicle on December 1, 2011. She admitted that Antonio was friends with Barron, but denied giving Barron permission to use her truck. She did not see Barron drive her truck on December 1. She further testified that her husband Antonio was injured in an accident on December 1.
Procedural History
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Barron was indicted on one count of aggravated assault with a deadly weapon, with the indictment alleging he used a motor vehicle in a deadly manner. Following trial, Barron was convicted of the charged crime. He filed a motion for new trial and a notice of appeal. The trial court initially denied Barron’s motion for new trial. After the thirty-day primary period for filing a motion for new trial expired, but still within the trial court’s seventy-five-day plenary period, Barron submitted, over State objection, a “motion to reconsider” the new trial motion that raised new grounds not previously submitted during the thirty-day primary period. The trial court then granted Barron’s motion for new trial. The State appealed, and we abated Barron’s appeal pending the outcome of the State’s appeal. We ultimately reversed the new trial order and reinstated Barron’s conviction, holding that the State’s objection to the untimely-filed new grounds raised in the motion to reconsider prevented the trial court from considering those arguments in reaching its decision during the plenary period. State v. Barron, No. 08-12-00245- CR, 2014 WL 505497 (Tex.App.--El Paso Feb. 7, 2014, pet. ref’d)(not designated for publication)(State’s appeal).
We now consider the merits of Barron’s appeal.
DISCUSSION
In five issues, Barron raises points on jury charge error, his purported exclusion from trial, and legal sufficiency. Because it is a potential rendition point, we begin with legal sufficiency.
A.
Accomplice Witnesses: Definition and Legal Sufficiency Analysis
In Issue Four, Barron contends that the evidence is legally insufficient to support his conviction.1 Specifically, Barron argues that Robert Sierra should be considered an accomplice
1 The State asks us to read Issue Four as being waived as multifarious. We decline to do so.
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witness in this case because he “encouraged” Barron’s reckless behavior by driving his motorcycle at a high speed and breaking multiple traffic laws in the process. In essence, Barron alleges he and Sierra were joint parties in an illegal street race, rendering Sierra’s testimony unreliable. Barron then asserts that under the accomplice witness rule, Sierra’s in-court identification of Barron, standing alone, cannot support Barron’s conviction, nor can the testimony of any other witness corroborate Sierra’s identification of Barron as the man in the maroon Chevrolet truck. Tied in with Sierra’s purported accomplice status is Issue Three, in which Barron argues the trial court should have also submitted an accomplice witness instruction to the jury naming Sierra as his accomplice.
We disagree both with Barron’s characterization of Sierra as an “accomplice” and with his conclusion that the evidence supporting conviction is insufficient.
Standard of Review
On legal sufficiency review, we assess all trial evidence “in the light most favorable to the prosecution,” to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Emphasis omitted]. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We review all record evidence in making this determination—direct or circumstantial, properly admitted or not. Clayton, 235 S.W.3d at 778. “Each fact need not point directly and independently to the guilt of the Appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007).
We measure legal sufficiency based on the statutory elements of the offense as modified by the allegations set out in the indictment. Malik v. State, 953 S.W.2d 234, 239 (Tex.Crim.App.
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1997).
In this procedural posture, we are not permitted to sit as “thirteenth jurors” and substitute our judgment for that of the fact finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010), Goodman v. State, 66 S.W.3d 283, 286 n.4 (Tex.Crim.App. 2001). Even so, we act as a procedural failsafe against irrational verdicts, and we may reverse a conviction on legal sufficiency grounds where no rational juror could find guilt beyond a reasonable doubt based on the evidence presented at trial. Clayton, 235 S.W.3d at 778. This encompasses both situations in which the State has failed to prove an essential element of the crime as a matter of law and situations in which some evidence exists on every element, but no reasonable person could convict in light of the state of evidence as a whole, even when viewed most favorably to the prosecution. See Jackson, 443 U.S. at 320, 99 S.Ct. at 2789 (constitutional legal sufficiency standard in criminal cases higher than “mere modicum” evidence standard); Brooks v. State, 323 S.W.3d 893, 906-07 (Tex.Crim.App. 2010).
A separate, statutory standard of review for legal sufficiency is also implicated when the State presents the testimony of an accomplice witness. See TEX.CODE CRIM.PROC.ANN. art. 38.14 (West 2005); see also Taylor v. State, No. 08-12-00143-CR, 2014 WL 792114, at *3 (Tex.App.--El Paso Feb. 26, 2014, no pet.)(not designated for publication). “In assessing an evidentiary challenge under the accomplice witness statute, we first eliminate the accomplice’s live, sworn testimony at trial from consideration and then review the remaining evidence in the light most favorable to the verdict to determine whether a rational juror would believe the evidence ‘tends to connect the defendant’ to the charged crime.” Taylor, 2014 WL 792114, at *3.
“An accomplice is someone who participates with the defendant before, during, or after
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the commission of a crime and acts with the required culpable mental state.” Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App. 2007). “[C]omplicity with an accused in the commission of another offense apart from the charged offense does not make that witness’s testimony that of an accomplice witness.” Id. “In short, if the witness cannot be prosecuted for the offense with which the defendant is charged, or a lesser-included offense of that charge, the witness is not an accomplice witness as a matter of law.” Id.; accord Quijano v. State, No. 14-10-00108-CR, 2010 WL 5132588, at *2 (Tex.App.--Houston [14th Dist.] Dec. 14, 2010, pet. ref’d)(mem. op., not designated for publication)(in aggravated assault trial, woman who agreed to commit a robbery with defendant before he assaulted her was not defendant’s “accomplice” because the charge at trial was aggravated assault, not robbery, and she could not be an accomplice to her own assault).
Analysis
At the heart of Barron’s arguments in Issues Three and Four is the allegation that he and Sierra were street-racing each other at the time of the aggravated assault. Because street-racing is illegal, Barron maintains Sierra’s testimony should be excluded from our analysis on the basis that both he and Sierra were allegedly engaged in a shared criminal activity. Barron also urges us to reverse his conviction because the trial court, failing to recognize Sierra’s status as an accomplice, did not submit an accomplice witness instruction for the jury’s consideration.
We are not convinced Barron’s contention that he and Sierra were street-racing is borne out by the record before us. Even so, assuming for argument’s sake that both Barron and Sierra were engaged in illegal street-racing, the charge in this case was aggravated assault, not street- racing, and Sierra could not become an accomplice to his own aggravated assault by racing with Barron. See Quijano, 2010 WL 5132588, at *2 (fact that assailant and victim agreed to commit a
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robbery together did not make assault victim her assailant’s “accomplice” for purposes of the assault case, even where her assault arose during the robbery). Simply put, even if what Barron says is true, Sierra would not fit the definition of an accomplice for purposes of the accomplice witness statute, as a separate crime—aggravated assault—arose during the course of a purported joint criminal episode between co-conspirators. Quijano, 2012 WL 5132588, at *2. Since Barron is not an accomplice witness to the aggravated assault, the trial court did not err by refusing to submit an accomplice witness instruction. Issue Three is overruled. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App. 2001)(jury instruction required only if issue is raised by some evidence).
Additionally, because Sierra was not Barron’s accomplice, the special legal sufficiency standard for accomplice witness testimony does not apply, and we may give Sierra’s testimony full weight. Both Sierra and his brother Christopher identified Barron as the man in the maroon Chevrolet truck. Barron maintains that Sierra’s testimony is unworthy of credence because Sierra identified Barron as the driver of the maroon truck from a distance through binoculars after police walked him into a spotlight. Likewise, Christopher’s testimony should be disbelieved because he was only able to see the driver of the truck for a few brief moments at night. It is for the jury to decide how much weight to given that testimony, particularly in light of the fact that Sierra also saw Barron while the aggravated assault occurred. We cannot say based on the record presented that no rational juror could have found Barron guilty. The evidence presented is legally sufficient.
Issue Four is overruled.
B.
Trial in Absentia
In Issue Five, Barron urges us to reverse his conviction because the trial court wrongfully
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tried him in absentia during portions of voir dire. Specifically, Barron contends his right to be present was violated when the trial court refused to allow him to stand at the bench with trial counsel during bench conferences in which the judge examined individual jurors’ qualifications and exemptions outside the hearing of the remaining veniremen. We conclude that error, if any, was harmless.
A criminal defendant has the constitutional right to be present at all stages of trial, including voir dire. Bledsoe v. State, 936 S.W.2d 350, 352 (Tex.App.--El Paso 1996, no pet.). A trial court commits error by hearing veniremen’s requests to be excused while the defendant is “absent from the courtroom.” Weber v. State, 829 S.W.2d 394, 396 (Tex.App.--Beaumont 1992, no pet.). Barron cites no authority for the proposition that his exclusion from bench conferences dealing with juror qualifications and exemptions constituted being tried in absentia, given that he was ostensibly outside the hearing of the bench conference but still present in the courtroom while the trial court questioned potential jurors. Assuming arguendo that Barron had the right to be present at the bench during this stage of voir dire, his exclusion from this process was harmless. “An appellant is harmed by a constitutional error unless after reviewing the record, the reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Routier v. State, 112 S.W.3d 554, 577 (Tex.Crim.App. 2003); TEX.R.APP.P. 44.2.
In this case, the trial court, over objection, excluded Barron three times from bench conferences after Barron’s counsel specifically requested he be present as the trial court examined the veniremen, instead requiring Barron to sit at the counsel table. As judicially noticed by the trial court, the distance between counsel table and the bench was less than twenty feet. During the first bench conference, the judge assessed several prospective jurors’
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qualifications, including the ability to speak English, and one juror was disqualified on the basis of a theft conviction. Barron’s counsel did not question these prospective jurors or object to their exclusion. During the second bench conference, the trial court inquired about exemptions, and seven jurors were excused without objection for medical, family, or educational reasons. Again, Barron’s counsel did not question these jurors or object. Finally, at the last bench conference, the judge asked the venire if any members had any other excuses they would like to raise. The judge did not excuse any potential jurors after this conference, and Barron’s counsel did not question any jurors. After the three bench conferences, the State and Barron both conducted voir dire. The trial court struck jurors who did not qualify, excused others, allowed the parties to exercise peremptory challenges, and then announced who would serve on the jury. Barron did not object to the seating of the jury.
Courts in similar cases have found that appellants were not harmed. See Jasper v. State, 61 S.W.3d 413 (Tex.Crim.App. 2001)(any error in excusing two jurors for valid non-economic reasons before defendant entered courtroom was harmless beyond a reasonable doubt); See Adanandus v. State, 866 S.W.2d 210, 220 (Tex.Crim.App. 1993)(defendant’s exclusion from in- chambers meeting regarding presence of video cameras during voir dire was harmless; counsel’s arguments were consistent with previous written motion, “Appellant’s assistance was not needed in order to further his defense on the issues discussed[,]” counsel made bill of exceptions when request to exclude cameras was denied, and “[n]o decisions were made by appellant’s attorney regarding jury shuffle or the use of strikes and no other matters of substance were discussed”); Fulmer v. State, 401 S.W.3d 305, 316 (Tex.App.--San Antonio 2013, pet. ref’d), cert. denied, 134 S.Ct. 436, 187 L.Ed.2d 293 (2013)(defendant’s right to be physically present was violated when judge commenced juror qualification process in defendant’s absence, but error was
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harmless beyond a reasonable doubt). We conclude beyond a reasonable doubt that Barron’s placement at counsel’s table during voir dire did not harm him based on the record before us.
Issue Five is overruled.
C.
Jury Charge Errors
Barron’s remaining issues deal with jury charge errors. We address them in turn.
Standard of Review
A defendant is entitled to a jury instruction that is raised by the evidence. Ferrel, 55 S.W.3d at 591. We review jury charge error claims under a two-step process. State v. Sanchez, 393 S.W.3d 798, 802 (Tex.App.--El Paso 2012, pet. ref’d), cert. denied 134 S.Ct. 221, 187 L.Ed.2d 144 (2013). First, we must determine whether error, in fact, exists. If so, we then ascertain whether the error was harmful. Id. The level of harm necessary to justify reversal of a criminal conviction depends on whether the appellant objected to the charge at trial. Id. If the defendant did object, we will reverse on a showing of “some harm.” If the defendant failed to object, we will only reverse the conviction upon a showing of “egregious harm.” Id.
1.
Accomplice Witness Instruction
In Issue Three, Barron avers that the trial court erred by failing to include an instruction on the accomplice witness rule. As we stated previously in the Legal Sufficiency section of this opinion, victim Robert Sierra was not an “accomplice” to his own aggravated assault by Barron. Quijano, 2010 WL 5132588, at *2. As such, the trial court did not err by failing to include an accomplice witness instruction. See Ferrel, 55 S.W.3d at 591 (defendant only entitled to jury instruction if evidence raises issue). Issue Three is overruled.
2.
Denial of Assault Charge
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In Issue One, Barron maintains that the trial court erred by failing to grant an instruction on the lesser-included offense of assault by threat. We disagree.
“Courts apply the Aguilar/Rousseau test to determine whether an instruction on a lesser-
included offense should be given to the jury.” Cavazos v. State, 382 S.W.3d 377, 382 (Tex.Crim.App. 2012). The Aguilar/Rosseau test has two elements. “First, the court determines if the proof necessary to establish the charged offense also includes the lesser offense.” Id. “If this threshold is met, the court must then consider whether the evidence shows that if the Appellant is guilty, he is guilty only of the lesser offense.” Id. The State concedes that assault by threat is a lesser-included offense of aggravated assault by threat, satisfying the first Aguilar- Rousseau factor. The only outstanding question before the Court is whether the jury could have rationally found Barron guilty only of assault by threat based on the evidence presented.
The difference between assault by threat and aggravated assault by threat is the use of a deadly weapon. Thus, Barron was entitled to receive the lesser-included instruction if the jury could have found that Barron did not use or exhibit a deadly weapon during the assault, or that he used his car to threaten Sierra in a non-deadly manner. See Perry v. State, No. 06-13-00051- CR, 2014 WL 3973929, at *9 (Tex.App.--Texarkana Aug. 15, 2014, pet. ref’d)(mem. op., not designated for publication)(holding that, to show entitlement to assault by threat instruction, “there must be some evidence suggesting that [a defendant] did not use or exhibit a deadly weapon in the commission of the assault”).
“A defendant is entitled to an instruction on a lesser-included offense if some evidence from any source raises a fact issue on whether he is guilty of only the lesser, regardless of whether the evidence is weak, impeached, or contradicted.” Cavazos v. State, 382 S.W.3d 377, 383 (Tex.Crim.App. 2012). Barron argues that there is more than a scintilla of record evidence
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showing the truck was not used as a deadly weapon under the circumstances. As proof, he points to the fact that Sierra allegedly followed the truck after almost being forced off the road and posits that if Sierra had actually thought that his life was actually in danger, he would not have pursued the truck. Thus, according to Barron, we may take Sierra’s pursuit of the truck as some evidence that Sierra did not subjectively believe the truck was being used in a deadly manner, which would justify submission of a simple assault charge.
The record does not appear to bear out Barron’s contention that Sierra pursued the truck.
In any event, we disagree that we must measure the deadliness of Barron’s threatening conduct through the victim’s personal perceptions. “[A] victim’s subjective perception of the threat is not dispositive in an aggravated assault by threat case. Instead, the operative question is whether the defendant’s conduct would be perceived as objectively threatening under the circumstances.” Montejano v. State, No. 08-12-00235-CR, 2014 WL 4638911, at *6 (Tex.App.--El Paso Sept. 17, 2014, no pet.)(not designated for publication).
From an objective standpoint, a truck may be perceived as a deadly weapon if, as in this case, the driver repeatedly swerves the truck at a motorcycle while both vehicles are moving at high speeds; that conduct would suggest to a reasonable person that the truck is being used to cause death or serious bodily injury. However, we fail to see, from an objective standpoint, how there is more than a scintilla of evidence showing that a reasonable person would perceive the use of the truck under those circumstances as anything but a way to threaten to inflict death or serious bodily injury on Sierra. Our sister courts have reached the same conclusion in addressing similar cases. See, e.g., Dobbins v. State, 228 S.W.3d 761, 768 (Tex.App.--Houston [14th Dist.] 2007, pet. dism’d as untimely)(holding that instruction was not warranted where driver drove vehicle toward police officer at five to ten miles per hour because even at that speed vehicle was
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“capable of causing death or serious bodily injury”). Because there is no evidence suggesting that Barron could be found guilty of simple assault by threat rather than aggravated assault by threat under the circumstances, the trial court did not err by refusing to instruct the jury on simple assault by threat.
Issue One is overruled.
3.
Judicial Comment on Weight of Evidence
In Issue Two, Barron contends that the trial court improperly commented on the weight of the evidence by including an erroneous jury charge. The specific language Barron challenges is as follows:
A fact may be established by direct evidence or circumstantial evidence or both.
A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act being done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved. [Emphasis added].
Barron asserts that the italicized language stating that a “fact is established by direct evidence when proved by . . . witnesses who saw the act being done or heard the words spoken” wrongfully gave the jury the impression that the State’s witnesses were inherently trustworthy.
The Texas Code of Criminal Procedure provides that “the judge shall . . . deliver to the jury . . . a written charge . . . not expressing any opinion as to the weight of the evidence . . . .” TEX.CODE CRIM.PROC.ANN. art. 36.14 (West 2007). A jury charge that correctly sets out the law may still be improper if it nevertheless comments on the weight of the evidence. See Batts v. State, No. 11-10-00156-CR, 2012 WL 2469546, at *6 (Tex.App.--Eastland June 28, 2012, pet. ref’d)(mem. op., not designated for publication). In Brown v. State, the Texas Court of Criminal Appeals set a three-point spectrum for determining when instructions constitute impermissible judicial comment on the weight of the evidence. See 122 S.W.3d 794, 799-801 (Tex.Crim.App.
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2003). “On the far end of the ‘improper-judicial-comment’ scale is a comment or instruction that states a mandatory presumption and thereby violates due process.” Brown, 122 S.W.3d at 799. “[T]o meet due process, any such instruction must be permissive rather than mandatory (‘you may infer’ rather than ‘the law presumes’), and there must be a reasonably tight logical fit between the basic facts proved and the ultimate fact inferred.” Id. at 799.
“Somewhere in the middle of the ‘improper-judicial-comment’ scale are instructions on non-statutory presumptions or ‘vehicles employed to review the sufficiency of evidence.’” Id. at 799. While a trial or appellate court may apply presumptions in measuring evidence, “the jury cannot be told of that presumption or rule.” Id. at 800. Such an instruction is an improper comment on the weight of the evidence. Id. Finally, at the near end of the improper judicial comment spectrum, a trial court cannot instruct on inferences that unreasonably draw attention to certain evidence. Id. at 800-01. “[A] court’s jury instruction could violate article 36.14 . . . [by] obliquely or indirectly convey some opinion on the weight of the evidence by singling out that evidence and inviting the jury to pay particular attention to it.” Id. at 801.
Barron’s argument bleeds the distinctions between the three categories together, and he makes points related to all three types of prohibited evidence. As such, we parse the instruction by category. First, Barron maintains the instruction creates a mandatory, irrebuttable presumption that the State’s witnesses are inherently credible by stating that a fact “is” established by eyewitness testimony. We disagree that the language in this charge creates a mandatory presumption favor of the State. In the first place, the charge never mentions the State, it merely refers to eyewitnesses. In the second place, the next paragraph of the change dispels any linguistic ambiguity over whether the word “is” is simply used as a neutral copula linking one half of the sentence to another or whether it is instead an implicit command to the jury to
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assume a fact exists:
You are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given the testimony, but you are bound to receive the law from the Court, which is herein given to you, and be governed thereby.
[Emphasis added].
This portion of the charge clarifies that the jury is ultimate the decider of fact, and can either accept or reject the account of any witness, including a State’s witness. When read together with the portion of the charge Barron challenges, it becomes clear to a reasonable reader that “is” is not a command—eyewitness testimony is direct evidence, but the jury is still free to believe the witness or not. As such, there is no “far end” mandatory presumption at issue here. Likewise, there is nothing in the charge that tells the jury to apply a non-statutory presumption, meaning that there is no “middle” spectrum issue, either. We are left with a near-spectrum issue: did the charge unnecessarily call attention to certain evidence?
In Batts, our sister court in Eastland confronted a jury instruction on the near end of the spectrum which stated: “Circumstantial evidence can corroborate the testimony of an accomplice witness.” 2012 WL 2469546, at *6. The Eastland Court, relying on Brown, held that the instruction was “marginally” a comment on the weight of evidence and thus improper; it did not “pluck out” particular pieces of trial evidence and offer them to the jury, but it did highlight “a certain type of evidence—circumstantial evidence” and “focus the jury’s attention on that type of evidence as corroboration for accomplice testimony.” Batts, 2012 WL 2469546, at *6. By doing so, the trial court wrongly gave the jury an impression that circumstantial evidence could have existed to support the State’s position.
Barron argues that at the very least, this instruction was erroneous because, like the Batts instruction, it improperly drew the jury’s attention to certain types of evidence: namely, eyewitness and documentary evidence. Assuming that Barron is correct and that this charge
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constitutes an improper comment under the logic of Batts, Barron cannot establish that this error harmed him. The instruction, much like the instruction in Brown, “is mild, neutral, and an obvious common-sense proposition[,]” and Barron cannot establish that he was harmed by it. Brown, 122 S.W.3d at 803; cf. Batts, 2014 WL 2469546, at *6.
Issue Two is overruled.
D.
State’s Modification Request: Failure to Include Deadly Weapon Finding in Judgment
In footnote 20 of its brief, the State draws our attention to the fact that although the jury’s verdict included a finding that Barron used a motor vehicle as a deadly weapon in the commission of this offense, the “Findings on Deadly Weapon” portion of the judgment of conviction contains an entry that states “N/A.” The State then points us to TEX.R.APP.P. 43.2(b) and related authority and asks us to use our power to modify and affirm judgments to insert the omitted deadly weapon finding back into the judgment of conviction.
Although we acknowledge the existence of this power, we pause to note that the Texas Court of Criminal Appeals has recently clarified that, at least in straight bench trials, a trial judge has the discretionary authority to decline to enter a deadly weapon finding even after finding a defendant guilty of a deadly-weapon offense. See Guthrie-Nail v. State, No. PD-0125-14, 2015 WL 5449642, at *3-*4 (Tex.Crim.App. Sept. 16, 2015)(reh’g granted). In that case, the trial court accepted a plea deal in which the defendant implicitly admitted to using a deadly weapon during an offense. The trial court’s original conviction judgment listed “N/A” under the deadly weapon finding section, but the trial court later changed that section to reflect an affirmative deadly weapon finding. The defendant objected to the change; the State asked the appellate courts to affirm the change as a nunc pro tunc revision. Id. The Court of Criminal Appeals remanded for a hearing to determine whether the trial court initially exercised its ability to
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decline to enter a deadly weapon finding (in which case reformation to include the finding would be inappropriate), or whether the trial court had actually made a deadly weapon finding that had been erroneously omitted and thus was properly subject to correction through a judgment nunc pro tunc. Guthrie-Nail, 2015 WL 5449642, at *5. In light of the holding in Guthrie-Nail, we must exercise caution before using our modification power to include an omitted deadly weapon finding, and should first determine whether the failure to include a deadly weapon finding was truly a clerical error and not a conscious decision by the trial court.
In this case, use of the modification power is appropriate, since the record makes clear that the omission of the deadly weapon finding was a clerical error and not an attempt by the trial court to enter a quasi-judgment non obstante veredicto as to the deadly weapon finding. During the pronouncement of judgment hearing, the trial court stated, in relevant part:
THE COURT: So what I’m going to do is that I’m going to--based upon the evidence and the verdict of the jury I’m going to enter a[n] affirmative finding on the use of a deadly weapon in the Court’s judgment, which is going to affect his ability to be eligible for parole, and that will be part of the judgment of the Court and the evidence supported based on the verdict.
Because it is readily apparent from the record that the trial court intended to enter a judgment that conformed with the jury’s verdict, and because the judgment of conviction omits the jury’s deadly weapon finding that the trial court orally pronounced, we will modify the judgment to include the deadly weapon finding.
CONCLUSION
Barron has failed to demonstrated reversible error. We modify the judgment of conviction to reflect an affirmative deadly weapon finding and affirm the judgment as modified. TEX.R.APP.P. 43.2(b).
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August 12, 2016 YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)