Opinion
No. 11-10-00074-CR
03-08-2012
RODNEY GALE UNKART, Appellant v. STATE OF TEXAS, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. 13570
MEMORANDUM OPINION
The jury convicted appellant, Rodney Gale Unkart, of two counts: (1) intentionally or knowingly manufacturing methamphetamine in an amount of at least four grams but less than 200 grams and (2) knowingly possessing, with intent to deliver, methamphetamine in an amount of at least four grams but less than 200 grams. The jury assessed punishment at twelve years confinement and a fine of $10,000 on each count. The court ordered that the sentences were to run concurrently.
Appellant presents two issues on appeal: (1) during voir dire, the trial court improperly commented on appellant's right to remain silent and thereby vitiated appellant's presumption of innocence and (2) the State violated Brady v. Maryland, 373 U.S. 83 (1963), when it failed to disclose its plea agreement with Jessica Pruitt to appellant's defense counsel prior to trial. We reverse and remand for a new trial.
Background Facts
Cora Gray is a narcotics investigator with the Special Crimes Unit in Parker County. She received a tip from a person involved in a drug arrest that he had purchased ingredients for making methamphetamine to take to appellant's residence. Officer Gray and other officers went to appellant's residence and told him that they had received a complaint that narcotics were being manufactured at his residence. Appellant gave his consent for them to look around.
Jessica Pruitt was asleep in a bedroom. There was a pipe used for narcotics on a desk near her as well as two baggies of methamphetamine. Officer James Peel asked appellant to see the shop near appellant's residence. On the way to the shop, appellant remarked that a lot of people came and went to his shop; they did not have to check with him first. When Officer Peel asked him about some possible evidence related to the manufacture of methamphetamine, appellant was quick to disassociate himself from that evidence. Shortly thereafter, appellant ended his consent to the search.
The officers detained appellant and secured the house while procuring a search warrant. After obtaining the search warrant, they took photographs and logged pieces of evidence from appellant's residence. During trial, the State presented the circumstantial evidence from which it argued that the jury could draw inferences that appellant was guilty of the offenses listed in the two counts. The State did not present any witness who said that he or she had seen appellant manufacturing or selling methamphetamine. The State had listed Pruitt as a witness, but did not call her.
The defense called Pruitt as a witness. She testified that she had not seen appellant manufacturing methamphetamine or selling it. During cross-examination by the State, Pruitt admitted that appellant had given her methamphetamine and that they would use it together. She also testified that she had seen items lying around that were used to manufacture methamphetamine. Pruitt denied, however, that she had told Officer Gray that appellant had told her that he was manufacturing or selling methamphetamine.
At that point, the State offered an audiotape of Pruitt's meeting with Officer Gray. The jury was dismissed to allow defense counsel and Pruitt time to listen to the audiotape. After listening to the tape, defense counsel claimed that he had learned for the first time that Pruitt had accepted a plea deal from Officer Gray: Pruitt would testify against appellant in exchange for a state jail felony instead of three felonies.
Appellant asked the trial court to withdraw Pruitt as a witness and asked for a mistrial. Appellant had filed a pretrial motion to require the State to reveal any agreement with a witness that could influence that witness's testimony. Although the trial court acknowledged that it had issued an order granting appellant's motion, the trial court denied appellant's motion to withdraw Pruitt as a witness and denied his motion for a mistrial. Appellant re-urged his motion for a mistrial after the close of evidence, and the trial court again denied the motion.
The Trial Court's Comments
During voir dire, the trial judge made the following comments about how, if he were a defendant, he would want to tell his side of the story during a trial:
This is an area of the law that I find that people have opinions about, and there's nothing wrong with that. It's a great country that we live in. But my opinion about that doesn't jive with everyone else's opinion, and I want to go into that to discuss with you how important your frame of mind, your willingness to accept this instruction that I'm about to give you because, you know, I think - praise God, I haven't been charged with a crime. But if I were, then I think I would probably want to get up and tell my side. It's just my nature. I would want to probably say my point of view on the thing or my version of the facts, but that's just me.
And you may have the same opinion that Judge Ray has, or not; and it's okay, subject to one condition, that is, that no matter what your opinion on the matter is, that you can follow the instruction as follows. If the defendant decides not to testify, you cannot refer or allude to that fact during your deliberations. In other words, if you're on the jury, you can't go back in the jury room and say, "Hey, she didn't even testify. What's up with that?" You can't even refer to that fact, and you cannot consider that decision to remain silent as a circumstance against the defendant for any reason whatsoever (emphasis added).
Although appellant did not object to the trial court's quoted comments when they were made, appellant filed a motion for mistrial the next morning before the trial began. The motion set forth the improper comments and cited the Fifth Amendment, Article 38.05 of the Texas Code of Criminal Procedure, and case law supporting the motion. The trial court noted trial counsel's decision not to object and request an instruction at the time as a matter of strategy and due consideration. But the trial court denied the motion for mistrial.
TEX. CODE CRIM. PROC. ANN. art. 38.05 (West 1979).
Neither the trial judge nor the prosecution may comment on a defendant's failure to testify, and any such comment violates the Fifth Amendment of the United States Constitution. Griffin v. California, 380 U.S. 609, 614 (1965); Bustamante v. State, 48 S.W.3d 761 (Tex. Crim. App. 2001). Article 38.05 provides as follows:
In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case (emphasis added).
To violate the right against self-incrimination, the offending language must be viewed from the jury's standpoint. Bustamante, 48 S.W.3d at 765. Even though the trial judge gave additional instructions on the right to remain silent after his comments, there remained the strong possibility that a member of the jury may have wondered why appellant, unlike the trial court, did not testify. A further instruction by the trial judge concerning his comments would not have cured the problem.
As the court noted in Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003), a trial judge must refrain from making any remark calculated to convey his opinion of the case because jurors give special weight to the language and conduct of the trial judge. Jurors are prone to seize upon any conduct or language of the trial judge that they may interpret as shedding light upon his or her view of the weight of the evidence or the merits of the issues involved. Blue v. State, 41 S.W.3d 129, 131-33 (Tex. Crim. App. 2000) (holding that trial court's comments during voir dire were fundamental error of constitutional dimension and required no objection); Blue v. State, 64 S.W.3d 672 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd); Devis v. State, 18 S.W.3d 777, 782 (Tex. App.—San Antonio 2000, no pet.) (comments concerning probation by trial court during voir dire); Jones v. State, 788 S.W.2d 834, 836 (Tex. App.—Dallas 1990, no pet.).
A trial judge improperly comments on the weight of the evidence if he makes a statement that (1) implies approval of the State's argument, (2) indicates any disbelief in the defense position, or (3) diminishes the credibility of the defense's approach to the case. Clark v. State, 878 S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.). Because the trial judge indicated that he would testify if he were a defendant, and appellant did not testify, the comments of the trial judge diminished the credibility of the defense's approach to the case.
The comments of the trial judge "vitiated the presumption of innocence" and were fundamental error of constitutional dimension. Blue, 41 S.W.3d at 131-33. As a constitutional error, it is subject to harmless error review under TEX. R. APP. P. 44.2(a). We must reverse appellant's judgment of conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. Rule 44.2(a). As stated earlier, jurors give special weight to the language and conduct of the trial judge. In contradiction to the trial judge's statement that he would want to testify, appellant chose to remain silent. We cannot say that the error did not contribute to appellant's conviction beyond a reasonable doubt. Appellant's first issue is sustained.
The State's Failure to Produce Pruitt's Plea Agreement
The State listed Pruitt as a witness, but did not call her as a witness because she had admitted to using methamphetamine the night before trial. The State advised the court that she appeared to still be under the influence of the drug and was behaving "schizo." The next morning, the State chose not to call Pruitt and rested its case-in-chief.
Appellant's counsel then chose to call Pruitt as a witness. In his opening statement, he had told the jury that "Jessica Pruitt, if she testifies, will tell you she never saw [appellant] cook dope, never saw him sell dope." Defense counsel then stated to the jury that, even if the State proved appellant violated some other law other than the ones charged, the jury's answer should be not guilty.
As noted, Pruitt testified on direct that she had not seen appellant cook or sell methamphetamine, only that he gave some to her and her boyfriend. During cross-examination, the State asked Pruitt if she had made statements to Officer Gray that appellant had manufactured and sold methamphetamine. Appellant said that she had not. The State then wanted to introduce an audiotape of conversations between Pruitt and Officer Gray.
There was a hearing apart from the jury to allow defense counsel and Pruitt to hear the audiotape. After hearing the audiotape, appellant's counsel stated to the court that this was the first time that he had learned of the plea bargain for Pruitt to testify against appellant. He moved to withdraw Pruitt as a witness and requested a mistrial.
Appellant reminded the trial court that he had filed a "motion to require the prosecution to reveal any agreement with the witness that could influence his testimony" and that the trial court had entered an order granting that motion. Defense counsel advised the court that "Ms. Pruitt lied to [him]. And if the State had complied [with the court's order on any plea agreement] and [given him] notice of the deal, [he] never would have called her as a witness."
In its brief, the State maintains that, although it withheld the audiotape, it had provided a written summary of the recording in discovery. We found nothing in the record to support the State's statement. The State also has not addressed appellant's argument that the State violated Giglio v. United States, 405 U.S. 150 (1972). The State simply maintains, without analysis, that the audiotape was Gaskin material that did not have to be disclosed.
The State's reliance on Gaskin v. State, 353 S.W.2d 467 (Tex. Crim. App. 1961), as well as the trial court's reliance on Gaskin, does not meet appellant's argument. The State is focusing on the statements by Pruitt to Officer Gray that contradicted her initial trial testimony. Appellant's argument is focused on the failure of the State to furnish the plea agreement between the State and Pruitt that was relevant to her credibility regardless of any conflicting statements by Pruitt. According to appellant, that agreement was analogous to the newly discovered evidence of the agreement between the government and the witness in Giglio.
The trial court acknowledged that it had ordered the State to produce any agreement it had with a witness, but the court reasoned that its order did not apply because the State had not called Pruitt as a witness, limiting its understanding of its order granting appellant's motion to only witnesses called by the State. Appellant points out that his motion referred to "any agreement with any witness in the nature of concessions by the State of Texas to the witness" that could influence the witness's testimony.
The State's argument does not fully address the issue posed by the State's failure to disclose the plea agreement to defense counsel. We acknowledge that Giglio involved an agreement between the government and a key witness for the government in the initial trial, and the issue was whether that was newly discovered evidence entitling Giglio to a new trial. The Supreme Court held that it was. Here, defense counsel recognized the possible effect of a plea agreement on a witness's testimony. Although the audiotape is not part of the record, record references to it indicate that Pruitt changed her testimony concerning appellant's actions after her plea agreement.
The record is insufficient for this court to fully address appellant's second issue. Although the trial court acknowledged that it had granted appellant's motion for the production of any plea agreement, that order is not in the record. The trial court's recollection of the order may have been correct if the court had actually limited its order to witnesses called by the State. Because we have sustained appellant's first issue and are remanding for a new trial, we decline to rule on the second issue. TEX. R. APP. P. 47.1.
This Court's Ruling
The judgment of the trial court is reversed, and the cause is remanded for a new trial.
TERRY McCALL
JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.