Opinion
NO. 01-16-00245-CR
07-25-2017
MELVIN LEE DUKE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court Harris County, Texas
Trial Court Case No. 1444640
MEMORANDUM OPINION
Melvin Lee Duke was convicted for felony evading arrest or detention and sentenced to 35 years' confinement. In his sole issue, Duke contends that the trial court erred by informing the venire that there is no right to jury nullification—i.e., that there is no right of a jury to disregard the law or facts in reaching its verdict. Because Duke made no objection to the trial court's comments, we hold that he failed to preserve error. And because the alleged error is not fundamental, we hold that he may not raise it for the first time on appeal. Therefore, we affirm.
See TEX. PENAL CODE § 38.04(a), (b)(1)(B).
Jury Nullification, BLACK'S LAW DICTIONARY (10th ed. 2014) ("A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.").
Background
During voir dire, in response to a question from a veniremember, the trial court informed the venire that a jury does not have the right to nullify:
VENIREMEMBER: I have one question about a point of law in this matter. Do we still have the right of jury nullification of the law in the state of Texas?Duke made no objection to the trial court's comments, and the trial court never explained to the rest of the venire what "jury nullification" means.
TRIAL COURT: No.
VENIREMEMEBER: And if we do, can you explain what that is?
TRIAL COURT: No, you do not.
VENIREMEMBER: We don't have the right to rule—we don't have the right to jury nullification?
TRIAL COURT: No.
VENIREMEMBER: All right.
Later, the State moved to dismiss the veniremember due to his question about "jury nullification," and Duke agreed.
The jury found Duke guilty, and the trial court sentenced him to 35 years' confinement. Duke appeals.
The Court's Comments Were Not Fundamental Error
Duke contends that, by "informing the venire that the jury has no right to nullify," the trial court denied him his "right to trial by jury" guaranteed by the United States and Texas constitutions. Duke concedes that he failed to object to the comments at trial, but he argues that no objection was necessary because the comments constituted fundamental error.
Under Texas criminal law, the general rule is that a defendant must object to a trial court's improper comments to preserve error for appellate review. See TEX. R. APP. P. 33.1(a)(1); Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013).
However, no objection is necessary if the comment constitutes fundamental error—that is, if the comment taints the defendant's presumption of innocence or otherwise denies him a fair trial. See TEX. R. EVID. 103(e) ("In criminal cases, a court may take notice of a fundamental error affecting a substantial right, even if the claim of error was not properly preserved."); Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (holding that trial court's statements that defendant had "seriously considered entering into a plea agreement" and that trial court "would have preferred that the defendant plead guilty" were fundamentally erroneous because they "'vitiated the presumption of innocence' before the venire"); Bogany v. State, No. 01-07-00050-CR, 2008 WL 623590, at *2 (Tex. App.—Houston [1st Dist.] Feb. 21, 2008, pet. ref'd) ("[W]hen the comments of a trial judge taint a defendant's presumption of innocence in front of the jury, error is fundamental and no objection is required.").
The trial court's comments did not taint the presumption of Duke's innocence. Nor did the comments deny him a fair trial. Jury nullification "is not a constitutional right of the defendant." Mouton v. State, 923 S.W.2d 219, 222 (Tex. App.—Houston [14th Dist.] 1996, no pet.). Duke nevertheless insists that the trial court's comments were fundamentally erroneous because they violated the rights of the jurors. We disagree.
Jury nullification does exist as part of our legal system. Id. Once in the jury room after the close of the evidence, each juror has the power to vote his or her conscience and thus has the power to nullify or disregard the trial court's instructions. Id. at 221. Regardless of the judge's instructions, then, a jury "has the power to bring in a verdict in the teeth of both law and facts." Horning v. D.C., 254 U.S. 135, 138, 41 S. Ct. 53, 54 (1920). And an acquittal is not subject to review. State v. Savage, 933 S.W.2d 497, 500 (Tex. Crim. App. 1996).
Nevertheless, jury nullification "is not a legal standard . . . ." Mouton, 923 S.W.2d at 222. Although the jury has the power to nullify, "it is the duty of the jury to follow the law as it is laid down by the court." Sparf v. United States, 156 U.S. 51, 74, 15 S. Ct. 273, 282 (1895) (emphasis added) (quoting United States v. Battiste, 24 F. Cas. 1042, 1043 (C.C.D. Mass. 1835)); see Ramos v. State, 934 S.W.2d 358, 367 (Tex. Crim. App. 1996) ("[T]he jury is not expected to nullify the trial court's instructions [but] has the ability to do so if it wishes.").
Therefore, a trial court may inform the jury that it has a duty to follow the law. Mouton, 923 S.W.2d at 221 (trial court's job is "to instruct the jury on the law applicable to the case, and to inform the jury of their duty to apply the law to the facts as they find them"); United States v. Burkhart, 501 F.2d 993, 997 n.3 (6th Cir. 1974) (noting that "jury nullification" refers to "the jury's power to acquit a defendant out of refusal to apply the law to facts clearly evidencing a criminal violation" and that law does not "require or permit a judge to tell the jury that it has the right to ignore the law as charged"). The Code of Criminal Procedure requires each juror to "solemnly swear" to render a verdict "according to the law and the evidence . . . ." TEX. CODE CRIM. PROC. art. 35.22. And the United States Supreme Court "has expressly stated that 'nullifiers' may constitutionally be excluded from the jury." Ramos, 934 S.W.2d at 367 (quoting Lockhart v. McCree, 476 U.S. 162, 172, 106 S. Ct. 1758, 1764 (1986)). The trial court, therefore, did not commit fundamental error in informing the veniremember—and the jurors who heard the exchange—that there is no right to jury nullification.
We additionally observe that the record does not demonstrate whether the trial court's comments actually led the jurors to believe they had no power to nullify. The veniremember used the phrase "jury nullification," a legal phrase, the meaning of which was never explained to the venire. Thus, the jurors who heard this exchange may not have understood its meaning.
We hold that the trial court's comments were not fundamentally erroneous. As a result, Duke was required to make a timely objection to preserve error. Because he did not, we have nothing to review. Therefore, we overrule Duke's sole issue.
Conclusion
We affirm the trial court's judgment.
Harvey Brown
Justice Panel consists of Justices Higley, Bland, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).