Rodney Garcia Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 11, 2025
• Docket: 01-23-00199-CR
• Status: Published

Opinion

Opinion issued February 11, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00199-CR ——————————— RODNEY GARCIA, JR., Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 4 Harris County, Texas Trial Court Case No. 2390024

MEMORANDUM OPINION

Appellant Rodney Garcia, Jr. challenges his conviction for the offense of

falsification of drug test results. See TEX. HEALTH & SAFETY CODE § 481.133(a). In one issue, Garcia contends that the trial court violated his constitutional and statutory

rights during jury voir dire by commenting on his right not to testify. We affirm.

Background

On January 5, 2022, Garcia was scheduled to meet with his parole officer,

Bode Mony, for his monthly drug test. Before the meeting, Officer Mony conducted

a routine background check on Garcia and discovered that Garcia had an outstanding

arrest warrant. Officer Mony notified the Houston Police Department, and Officer

Valensky Etienne responded to the scene. After confirming Garcia’s outstanding

arrest warrant, Officer Etienne placed Garcia under arrest.

Officer Etienne searched Garcia before placing him in his patrol vehicle.

During the search, Garcia told Officer Etienne that he had “fake pee” concealed in

his pants. Officer Etienne found a bottle containing a yellow substance, which was

wrapped in a heating pad, hidden in Garcia’s boxers. Garcia explained that he had

synthetic urine because he was “scared to pee dirty again.”

Garcia was charged by information with falsifying drug test results, a Class B

misdemeanor. See id. (“A person commits an offense if the person knowingly or

intentionally uses or possesses with intent to use any substance or device designed

to falsify drug test results.”). The case proceeded to trial, and Garcia pleaded not

guilty. During voir dire, the trial court judge gave the jury panel extensive

instructions about their potential roles as jurors. The trial court judge addressed

2 Garcia’s Fifth Amendment right not to testify, informing the jury panel that it may

not consider or mention Garcia’s decision to testify or not in reaching a verdict:

Okay. 5th Amendment right. The defendant can, if they like, but they do have a right to not incriminate themselves. They have a right not to testify. Okay? If, in fact – and I don’t know the answer to that. We’ll find out whenever it happens but if, in fact, the defendant should decide not to testify, the responsibility on the jury’s part is to not consider that one way or the other. That’s what the law says.

Is there anyone here who believes, well, Judge, I know it’s what the law says but I – I don’t know. I think if it were me, and I was the defendant, wild horses could not keep me off that stand. I need to hear from the defendant. Anyone feel that way? Will anyone hold it against the defendant if, in fact, they do not testify? Anybody? No? Okay.

All right. Another part of that is when you’re deliberating, should the defendant choose not to testify, you can’t even bring it up in deliberation. Not only can you not consider it, you can’t even talk about it. Anybody believe that they will be unable to follow that requirement? No? Okay. Anybody think that’s unfair to the State that Hey, defendant does not have to testify?

Neither the State nor Garcia objected to the trial court judge’s comments. The

State and Garcia proceeded with their respective voir dire and the jury was

empaneled. The State presented Officer Mony and Officer Etienne as witnesses.

Garcia did not testify or call any witnesses. After closing arguments, the jury

deliberated and found Garcia guilty. The trial court sentenced Garcia to sixty days

in the Harris County Jail, with sixty days credit given for time served. This appeal

followed.

3 The Trial Court Judge’s Comments on Garcia’s Right Not to Testify

In his sole issue, Garcia argues that the trial court judge’s comments regarding

his right not to testify violated his Fifth Amendment right not to testify and his Sixth

Amendment right to trial by an impartial jury. See U.S. CONST. amends. V, VI. He

further argues that the judge’s comments violated Texas Code of Criminal Procedure

article 38.05. See TEX. CODE CRIM. PROC. art. 38.05. The State responds that the

judge’s comments in context were meant to protect Garcia’s rights and were not

improper.

A. Error Preservation

Most appellate complaints must be preserved by a timely request for relief in

the trial court. Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013). Rule of

Appellate Procedure 33.1(a) provides that, as a prerequisite to presenting a

complaint for appellate review, the appellate record must show that the complaint

was made to the trial court by a timely request, objection, or motion stating the

grounds for the ruling sought with sufficient specificity to make the trial court aware

of the complaint. TEX. R. APP. P. 33.1(a)(1); see Pena v. State, 285 S.W.3d 459, 464

(Tex. Crim. App. 2009) (“To avoid forfeiting a complaint on appeal, the party must

let the trial judge know what he wants, why he thinks he is entitled to it, and to do

so clearly enough for the judge to understand him at a time when the judge is in the

proper position to do something about it.”) (internal quotations omitted).

4 It is undisputed that Garcia did not object to the judge’s comments at the time

they were made or raise such a complaint in any post-trial motion. Relying on

Proenza v. State, 541 S.W.3d 786 (Tex. Crim. App. 2017), however, Garcia

contends no objection was necessary to preserve his statutory and constitutional

complaints about the judge’s comments for appellate review. In Proenza, the Court

of Criminal Appeals held that an Article 38.05 complaint regarding judicial

comments is not forfeited on appeal by inaction in the trial court. Id. at 798–801.

Therefore, Garcia is entitled to challenge the judge’s comments under Article 38.05

for the first time on appeal. See Flores v. State, No. 01-20-00213-CR, 2022 WL

961554, at * 12 (Tex. App.—Houston [1st Dist.] Mar. 31, 2022), aff’d, 679 S.W.3d

695 (Tex. Crim. App. 2023) (citing Proenza, 541 S.W.3d at 801).

Although the majority opinion in Proenza did not specifically address error

preservation in the context of a defendant’s complaint that a trial court judge’s

comment violated his constitutional rights, in her dissent, Presiding Judge Keller

stated that the majority adopted the stance that “all complaints about judicial

comments in front of the jury are immune from preservation requirements[.]”

Proenza, 541 S.W.3d at 814 (Keller, P.J., dissenting). We do not need to address this

issue; for this appeal, we assume, without deciding, that Garcia may raise his

constitutional challenge to the judge’s comments for the first time on appeal. See

Gibson v. State, No. 14-19-00827-CR, 2020 WL 7626406, at *5 (Tex. App.—

5 Houston [14th Dist.] Dec. 22, 2020, pet. ref’d) (mem. op., not designated for

publication) (addressing merits of constitutional due process challenge to judicial

comments during voir dire without deciding preservation issue); see also Unkart,

400 S.W.3d at 99–101 (addressing merits of challenge to judicial comments during

voir dire without definitively stating no preservation required).

B. Analysis

Garcia contends that, during jury voir dire, the trial court judge committed

reversible error by making certain comments regarding his right not to testify.

Specifically, he contends that the judge’s comments violated Article 38.05, his Fifth

Amendment right not to testify, and his Sixth Amendment right to trial by an

impartial jury, asserting that the comments “caused the jurors to note – in their own

minds at least – that a non-testifying defendant must surely be guilty.”

A comment on a defendant’s failure to testify violates the United States and

Texas constitutions. See Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App.

2011); see also U.S. CONST. amend. V (guaranteeing criminal defendant right to due

process of law and right against compulsory self-incrimination, including right not

to testify in his trial); U.S. CONST. amend. VI (guaranteeing criminal defendant “a

speedy and public trial, by an impartial jury”); TEX. CONST. art. I, § 10 (guaranteeing

a criminal defendant may not be compelled to testify or give evidence against

himself in his trial); TEX. CODE CRIM. PROC. art. 1.05 (“In all criminal prosecutions

6 the accused … shall not be compelled to give evidence against himself.”); TEX.

CODE CRIM. PROC. art. 38.08 (“Any defendant in a criminal action shall be permitted

to testify in his own behalf therein, but the failure of any defendant to so testify shall

not be taken as a circumstance against him . . . ”). Therefore, “[n]either the trial judge

nor the prosecutor can comment on the failure of an accused to testify.” Bustamante

v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001).

To assess whether a particular statement was a comment on the defendant’s

right not to testify, an appellate court must view the comment from the jury’s

standpoint. Randolph, 353 S.W.3d at 891; Bustamante, 48 S.W.3d at 765. We

consider the context in which the comment was made in determining “whether the

language used was manifestly intended or was of such a character that the jury would

necessarily and naturally take it as a comment on the defendant’s failure to testify.”

Randolph, 353 S.W.3d at 891. If the judge’s comment “might reasonably be

construed as merely an implied or indirect allusion” to the defendant’s silence or

failure to testify, there is no violation. Id.

Garcia argues that a particular comment made by the judge—“I think if it were

me, and I was the defendant, wild horses could not keep me off that stand”— was

improper. But we decline Garcia’s offer to consider the judge’s comment in

isolation, since doing so removes this particular comment by the judge from its

necessary context. The judge made the comment while informing the jury panel

7 about Garcia’s right not to testify in his trial. Before making the comment, she

informed the jury that defendants may testify “if they like, but they do have a right

to not incriminate themselves. They have a right not to testify.” She then asked the

jury panel whether anyone believed that “if it were me, and I was the defendant, wild

horses could not keep me off that stand” and whether anyone felt they “need[ed] to

hear from the defendant” to reach a verdict of not guilty. She then explained that, if

so, she needed to hear from the panel member. In context, the judge commented on

Garcia’s right not to testify rather than his failure to testify. See id. (stating “a

comment on a defendant’s failure to testify violates both the state and federal

constitutions as well as Texas statutory law”) (emphasis added).

The record simply does not support Garcia’s claim that the judge’s comments

made it more probable that the jury would convict him for failing to testify. As she

questioned the jury panel about whether they would follow her instructions

regarding Garcia’s right not to testify, the judge informed the jury panel that she was

unaware of Garcia’s decision on testifying in the trial, but that the law prevented

them from considering Garcia’s decision either way. She stated, “Not only can you

not consider [Garcia’s decision], you can’t even talk about it.” She then confirmed

that everyone on the jury panel would follow her instructions regarding Garcia’s

right not to testify. The judge never shared her personal opinion about whether

Garcia should testify before the jury. She merely posed questions to ensure the jury

8 panel understood that Garcia’s right not to testify precluded the jury from injecting

into their deliberations their personal opinions about whether Garcia should testify.

Accordingly, we conclude that the judge’s comments did not violate Garcia’s Fifth

and Sixth Amendment rights. See Unkart, 400 S.W.3d at 101 (concluding defendant

was not entitled to mistrial on basis of trial judge’s comments during voir dire stating

he personally would want to testify if accused of crime but others might have

different perspective because comments “were made with the manifest intent to

benefit the defendant and to protect his rights [and] were part of an extended effort

to hammer home to the jurors that they should not hold a defendant’s failure to testify

against him”); Knott v. State, 513 S.W.3d 779, 801–02 (Tex. App.—El Paso 2017,

pet. ref’d) (concluding trial court’s explanation to jury panel of defendant’s

constitutional right against self-incrimination, using example in which driver

charged with speeding took stand and unwittingly provided incriminating testimony,

did not constitute direct comment on defendant’s constitutional right to remain

silent; trial court emphasized importance of defendant’s constitutional right to

remain silent and presumption of innocence, and jury would not have perceived trial

court’s message as being that defendants do not testify because they are guilty).

We further conclude that the judge’s comments did not violate Article 38.05.

See TEX. CODE CRIM. PROC. art. 38.05 (prohibiting trial court judge from

commenting on weight of evidence in criminal proceedings or otherwise divulging

9 to jury her opinion of case); Flores, 2022 WL 9612554, at *15 (holding trial court’s

statements, including, “You can’t be the one who is used to prove yourself guilty”

and describing Fifth Amendment as “right not to be the one to prove yourself guilty”

were descriptions of law, not comments on weight of evidence or remarks conveying

judge’s opinion of case to jury); see also Proenza, 541 S.W.3d at 791 (holding that

judicial comment violates Article 38.05 if it is “reasonably calculated to benefit the

State or prejudice the defendant’s rights”). Garcia’s sole issue is overruled.

Conclusion

We affirm the trial court’s judgment.

Amparo Monique Guerra Justice

Panel consists of Justices Guerra, Caughey, and Morgan.

Do not publish. TEX. R. APP. P. 47.2(b).