Lucio, Pedro Ariel Zarate

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0659-10

PEDRO ARIEL ZARATE LUCIO, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY

Alcala, J., delivered the opinion of the Court, in which Keller, P.J.,

and Price, Womack, Johnson, Keasler, Hervey, and Cochran, JJ., joined.

Meyers, J., filed a dissenting opinion .

O P I N I O N

In this petition for discretionary review, appellant Pedro Ariel Zarate Lucio contends

that the court of appeals erred by holding that the trial court did not improperly comment on

the weight of the evidence in its answer to the jury's question. Lucio v. State , No. 02-08-00179-CR, 2010 Tex. App. LEXIS 3241 ,*21-22 (Tex. App.--Fort Worth Apr. 29, 2010)

(mem. op., not designated for publication). Although it will usually constitute a comment

on the weight of the evidence for a trial court to focus on a particular piece of evidence in

its initial charge to the jury, we hold that a trial court's answer to a question a jury asks

during deliberations will not necessarily constitute an improper comment on the weight of

the evidence. We, therefore, affirm the court of appeals's judgment.

I. Background

A jury convicted appellant in trial cause number 1108904-R for murder in Count II

and for engaging in organized criminal activity in Count III as charged in a single

indictment. (1) See Tex. Pen. Code §§ 19.02 & 71.02. While deliberating in the sentencing

phase of trial, the jury sent a written note to the trial court asking, "Are there any limitations

on who can speak as a character witness during the sentencing phase?" The trial court

responded, "You have heard all of the witnesses who were called to testify. Please continue

your deliberations." Moments later, the jury submitted another note asking, "Does the law

prevent a family member from speaking during the sentencing phase, for the defendant?"

Following extensive discussion among the lawyers and the trial court, the court proposed the

following response:The law does not prohibit a family member from testifying on behalf of a

defendant so long as the witness has relevant evidence related to an issue in the

case. You have heard all of the witnesses who have been called to testify.

Please continue your deliberations. The trial court overruled defense counsel's objection and submitted the instruction to

the jury. The jury assessed appellant's punishment at 60 years' confinement on each count.

On direct appeal, appellant challenged the trial court's answer to the jury's question,

contending that the answer was a comment on the weight of the evidence. Lucio , No. 02-08-00179-CR, 2010 Tex. App. LEXIS 3241 , at *20. Overruling his issue, the court of appeals

explained that the law permits a trial court to respond to a jury note with a correct statement

of law, as long as the answer expresses no opinion as to the weight of the evidence and does

not assume the existence of a disputed fact. Id. at *21-22. We granted appellant's petition

for discretionary review, in which he argues that "the court of appeals erred by holding that

the trial court's unnecessary supplemental jury instruction at punishment was proper and did

not amount to a prohibited comment on the weight of the evidence."

II. General Law Concerning Instructions to the Jury

The jury is bound to be governed by the law it receives from the court. Tex. Code

Crim. Proc. art. 36.13; Whaley v. State , 717 S.W.2d 26, 32 (Tex. Crim. App. 1986).

Although the trial court ordinarily provides instructions to the jury in their entirety before the

jury retires to deliberate, the court may give further written instructions upon the jury's

written request for additional guidance regarding applicable law. See Tex. Code Crim.

Proc. art. 36.16 ( providing that court may give "further charge" to jury upon jury's request

after parties finish closing arguments). (2) When the trial court responds substantively to a

question the jury asks during deliberations, that communication essentially amounts to a

supplemental jury instruction, and the trial court must follow the same rules for impartiality

and neutrality that generally govern jury instructions. See Daniell v. State , 848 S.W.2d 145,

147 (Tex. Crim. App. 1993).

Because a trial court's answer to a jury's question must comply with the same rules

that govern charges, the trial court, as a general rule, must limit its answer to setting forth the

law applicable to the case; it must not express any opinion as to the weight of the evidence,

sum up the testimony, discuss the facts, or use any response calculated to arouse the

sympathy or excite the passions of the jury. See Tex. Code Crim. Proc. art. 36.14; Bartlett

v. State, 270 S.W.3d 147, 152 (Tex. Crim. App. 2008).

III. Analysis

Citing Bartlett v. State , appellant asserts that the trial court commented on the weight

of the evidence by singling out a particular piece of evidence in its answer to the jury's

question that asked whether the law permitted family members to testify. 270 S.W.3d at 152 . (3)

In Bartlett , the trial court instructed the jurors at the conclusion of the guilt phase of

Bartlett's trial for driving while intoxicated that they were permitted to consider the fact that

he refused to submit to a breath test. Id . We held that a jury instruction that uses seemingly

neutral language informing the jurors that they may consider evidence of a defendant's

refusal to take a breath test constitutes an impermissible comment on the weight of the

evidence. Id . We explained that, unless the instruction concerns one of three exceptions that

permit the general jury charge to instruct upon particular evidence, (4) a trial court's general

jury charge may not single out a particular piece of evidence for special attention. Id . The

rationale behind this prohibition is that a trial court's focus on particular evidence has the

potential to "obliquely or indirectly convey some [judicial] opinion on the weight of the

evidence by singling out that evidence and inviting the jury to pay particular attention to it."

Id .

In Bartlett , the trial court impermissibly focused on evidence in its charge to the jury

given before the jury began its deliberations by singling out evidence for particular attention

by the jury. Bartlett, 270 S.W.3d at 148-49 ; see also Brown v. State , 122 S.W.3d 794, 797

(Tex. Crim. App. 2003); Matamoros v. State , 901 S.W.2d 470, 477 (Tex. Crim. App. 1995).

By contrast, here, the jury is the entity that focused on the evidence in its question to the trial

court. The trial court merely responded to that inquiry with a neutral and impartial statement

describing the applicable law. Bartlett , therefore, is procedurally distinguishable because the

trial court gave the complained-of instruction before the jury's deliberations, rather than in

response to a jury question, as occurs in the present case. Bartlett, 270 S.W.3d at 148-49 ; see

also Brown , 122 S.W.3d at 797 ; Matamoros , 901 S.W.2d at 477 . The concern discussed in

Bartlett-- that the trial court must not "obliquely or indirectly" convey an opinion about the

weight of the evidence by singling it out and inviting the jury to pay particular attention to

it--is inapplicable to this case because it was the jury that first "singled out" the evidence for

particular attention, not the trial court. Compare Bartlett, 270 S.W.3d at 154 .

This case is more analogous to Green v. State , in which the trial court responded to

a jury question after deliberations had begun. 912 S.W.2d 189 (Tex. Crim. App. 1995). In

that case, after submitting to the trial court multiple requests for clarification, the jury asked

whether a witness had "stated [appellant] had 'emotional problems,'" to which the trial court

responded that the witness "never used the term 'emotional problems'!" Id . at 192. This

Court held that this response was not an improper comment on the weight of the evidence,

stating that "[t]he trial court responded to a narrow and straightforward jury question with

a narrow and straightforward answer that was responsive to the question asked." Id . at 193.

We explained that the response "expressed no opinion that [the witness's] testimony did not

support a conclusion appellant had 'emotional problems,'" and was "an objective conclusion

based on the record concerning a dispute among the jury about the testimony of a witness."

Id.

We conclude that the general rule that prohibits the court from singling out a

particular piece of evidence in its instructions to the jury given prior to jury deliberations

does not necessarily apply when the court merely responds to the jury's question concerning

a subject identified by the jury alone. Nothing in the trial court's answer focused the jury on

the fact that none of appellant's family members had testified during the punishment phase.

Rather, the jury alone focused on that fact, which prompted its note to the trial court, perhaps

because of evidence supplied by appellant's girlfriend, who testified that appellant "only

associated with his family." In response to the jury's question, the trial court merely provided

a correct statement of law that family members with relevant evidence were not prohibited

from testifying. See Tex. R. Evid. 402 ("All relevant evidence is admissible, except as

otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed

pursuant to statutory authority."). From this, the jury could have permissibly inferred either

that none of the available family members could provide relevant information or that

appellant did not call the available family members to testify because they would supply

evidence unfavorable to appellant. See Albiar v. State , 739 S.W.2d 360, 362-63 (Tex. Crim.

App. 1987) ("The failure to produce available evidence justifies an inference that it would

be unfavorable to the defendant."). Regardless of which inference the jury drew, neither was

promoted by t he trial court's answer, which did not improperly convey a "personal estimation

of the strength or credibility" of evidence in its neutral and correct statement of the applicable

law. See Watts v. State, 99 S.W.3d 604 , 611 n.24 (Tex. Crim. App. 2003). We hold,

therefore, that the court of appeals correctly determined that the trial court did not improperly

comment on the weight of the evidence in its answer, which provided a correct statement of

the law without expressing any opinion as to the weight of the evidence or assuming the

existence of a disputed fact. Lucio , No. 02-08-00179-CR, 2010 Tex. App. LEXIS 3241 , at

*21-22.

Appellant also suggests that the trial court's answer is improper because a trial court

is statutorily prohibited from commenting on the weight of the evidence in making

evidentiary rulings. See Tex. Code Crim. Proc. art. 38.05. But neither party offered

testimony from family members in the sentencing phase of trial so the trial court never made

an evidentiary ruling concerning this matter. This statutory prohibition is, therefore,

inapplicable.

Furthermore, in his brief, appellant asserts, in his summary of the argument, that his

punishment is not assessed "on the basis of the evidence presented, but instead on the basis

of speculation as to why or why not certain family members did not testify on Petitioner's

behalf." The sole reference to this assertion in the argument section of his brief is a single

sentence, which states, "This instruction could have no effect other than to invite the jury to

speculate about why they did not hear that type of evidence." This single sentence is

unaccompanied by any other argument or authorities. Similarly, in his brief in the court of

appeals, appellant provides only this same single sentence, citing no authority, and the court

of appeals's opinion does not address this contention. Appellant has never provided any

explanation as to how the trial court's answer--which effectively instructed that only

relevant evidence is admissible--would invite the jury to improperly speculate. See Tex. R.

Evid. 402. We conclude that because appellant failed to properly brief this assertion, the

court of appeals properly declined to address it. See Tex. R. App. P. 38.1(i) (an appellate

brief must "contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record."); Salazar v. State , 38 S.W.3d 141, 147 (Tex. Crim.

App. 2001) (dismissing appellant's issues because "his brief presents no authority in support

of his argument"). We, therefore, decline to address appellant's contention that the trial

court's answer invited the jury to speculate about evidence.

We overrule appellant's ground for review.

IV. Conclusion

We affirm the judgment of the court of appeals.

Delivered: November 9, 2011

Publish

1. The jury acquitted appellant of capital murder as charged in Count I.

2. See also Tex. Code Crim. Proc. art. 36.27 (after deliberations have begun, jury may

communicate with trial court in writing and court "shall answer any such communication in

writing") ; Walker v. State , 440 S.W.2d 653, 659 (Tex. Crim. App. 1969) ("If the jury after retirement

request additional instructions upon a question of law and the subject matter of the request is proper

there can be no question but [t]hat the Court should give such instructions in writing."); Gamblin v.

State , 476 S.W.2d 18, 20 (Tex. Crim. App. 1972) (Article 36.27 "requires the court to answer

communications of the jury and give additional instructions upon questions of law when the request

is proper. If not, the court should inform the jury that their request is not proper by referring to the

court's charge.").

3.

Appellant also cites to other cases, including Matamoros v. State, 901 S.W.2d 470, 477 (Tex.

Crim. App. 1995) (holding trial court properly denied jury instruction that mere admission of DNA

evidence does not mean that court vouches for its reliability or that results should be accepted as

proof beyond reasonable doubt because that is comment on weight of evidence by singling out

particular evidence for special attention), and Brown v. State , 122 S.W.3d 794, 802 (Tex. Crim. App.

2003) (holding that instruction in original charge informing jury that "intent or knowledge may be

inferred by acts done or words spoken" was comment on weight of evidence because it "focus[ed]

the jury's attention on the type of evidence that may support a finding of criminal intent."). These

decisions, like Bartlett v. State , stand for the general proposition that a trial court improperly

comments on the weight of evidence by singling out evidence in its general instructions to the jury.

See Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim. App. 2008) .

4.

None of these exceptions are applicable here.