Opinion
No. 05-14-01037-CR
01-27-2016
GARY ANTHONY SANDERS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas
Trial Court Cause No. F-1358529-H
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang, and Justice Brown
Opinion by Justice Lang
A jury found appellant Gary Sanders guilty of capital murder, and the trial court rendered judgment sentencing Sanders to an automatic life sentence. In one issue, Sanders asserts the trial court erred by making an improper comment on the weight of the evidence when sustaining the state's objection to a portion of defense's closing argument. We decide against appellant on his sole issue and affirm the judgment.
I. Factual and Procedural Background
On June 28, 2013, the family of Penny Terk asked police to check on Terk when the family was unable to reach her by phone. Responding to that request, Dallas police officer, Victor Nevarez, found Penny Terk dead in her home. When Nevarez found Terk, several items were noted as missing from her home, including a television, a washer and dryer, a leaf blower, a gun, an electric mower, an Apple laptop computer, and jewelry. Terk's body was found by Nevarez on the floor in the master bedroom covered by pillows and a dog bed. An autopsy revealed that Terk suffered gunshot wounds, sharp-force stab wounds, and several blunt-force injuries.
Gary Sanders was indicted for the capital murder of Terk. When the case was called to trial, Sanders pled not guilty. At trial, crime scene analysts Abe Santiago and David Andree testified about their work processing the crime scene in Terk's home. Santiago photographed the crime scene, collected evidence, and processed the house for fingerprints. He told the jury that he lifted two fingerprints matching those of Sanders from an empty water bottle found on the sofa in Terk's family room. Andree testified that he collected twenty seven "swab samples of DNA" from objects and surfaces found in the house. Both Santiago and Andree testified that a majority of these swabs were taken from the handles and drawers of cabinets that were partially open at the time they entered the home. Additionally, Andree swabbed two abandoned water bottles, one found in the living room of Terk's home and another found in the entryway of the home for DNA samples.
Amanda Webb analyzed the swabs collected from Terk's home. She testified that five of these twenty seven swabs contained DNA, and three of those swabs contained DNA that matched the profile of Terk. Webb also testified that one of those swabs contained DNA that could be matched to the profile of either Terk or Sanders. Finally, she testified that the water bottle located in the entryway of Terk's home contained DNA that matched the profile of Sanders. Webb stated that "we perform a statistic when we include somebody as a possible contributor or when somebody matches a DNA profile." She testified the statistic is:
the probability of selecting at random an unrelated individual that would match that DNA profile that we got from the water bottle as Gary Sanders matched it. The most conservative probability is one in 2.92 quintillion. To put this in a little bit of perspective, there's 7.1 billion people on the earth, so we would expect to see that profile once in approximately 411 million earths.
The following exchange transpired during the defense closing argument:
Defense counsel: And then his partner comes in reluctantly this afternoon and says hey, well, yeah, I took DNA swabs from every place in there that looked like it had been ransacked. Even if they weren't good surfaces for fingerprints, they would have been more than likely ideal to collect DNA. What did he tell you? Absolutely, absolutely. And yet when they did that at every location in that house, there is not one thing you have in there that places Gary Sanders in that house by way of physical evidence.After this exchange, defense counsel finished his closing argument. The jury found Sanders guilty of capital murder. Sanders elected to have the court sentence him, and the jury was dismissed. The trial court rendered judgment imposing an automatic life sentence against Sanders. Sanders timely filed a notice of appeal.
Counsel for the state: Your Honor, I'm going to object. That's a misstatement of the evidence of this jury.
The Court: Sustained.
Defense counsel: Judge, I object to that. That's a comment by the Court on the weight of the evidence.
The Court: Sustained.
II. Standard of Review
Appellate courts apply a de novo standard of review to determine whether a comment or instruction from a trial court is an improper comment on the weight of the evidence. See Am. Bankers Ins. Co. v. Caruth, 786 S.W.2d 427, 434 (Tex. App.-Dallas 1990, no writ) (applying de novo review and finding that jury instruction did comment on weight of the evidence because it implied that judge thought law and facts favored one party). This Court must view the trial court's comments in the context in which they were made, and in light of the entire record. See Simon v. State, 203 S.W.3d 581, 591 (Tex. App-Houston [14th Dist.] 2006, no pet.). A mere violation of Article 38.05 of the Texas Code of Criminal Procedure "does not necessarily constitute reversible error." Tennison v. State, 814 S.W.2d 484, 486 (Tex. App.-Waco 1991, no pet.). If the appellate court can determine beyond a reasonable doubt that the trial court's error made no contribution to the conviction or to the punishment of the defendant, then the error will be deemed to have been harmless. TEX. R. APP. P. 81(b)(2).
III. Applicable Law
Trial judges are required to maintain an attitude of impartiality throughout a trial. Clark v. State, 878 S.W.2d 224, 226 (Tex. App.-Dallas 1994, no pet.). Article 38.05 of the Texas Code of Criminal Procedure states that:
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 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.TEXAS CODE OF CRIMINAL PROCEDURE ANN. art. 38.05. (Vernon 1979).
While trial courts have a duty to rule upon objections, a trial court must not embellish a ruling with unwarranted comment. Bachus v. State, 803 S.W.2d 402, 405 (Tex. App.-Dallas 1991, pet. ref'd). See McClory v. State, 510 S.W.2d 932, 934 (Tex. Crim. App. 1974) (distinguishing between merely ruling on an objection and embellishing on a ruling with unwarranted comment). However, where the trial court does nothing more than rule on an objection, it does not improperly comment on the weight of the evidence. See Harlan v. State, 416 S.W.2d 422, 424 (Tex. Crim. App. 1967) (trial court's statement that an objection to admission of photograph was overruled and the photograph would be admitted was not a comment); Johnson v. State, 341 S.W.2d 170, 171-72 (Tex. Crim. App. 1960) (where defense objected to question by the prosecution on redirect of prosecution's witness, and the trial court responded "Overrule the objection. Go ahead," the trial court did not improperly comment).
IV. Application of the Law to the Facts
During closing argument, the defense asserted that there was no physical evidence that "places" appellant in the decedent's house. The state objected that defense counsel's argument was a misstatement of the evidence. This objection required the trial court to rule on whether counsel for the defendant incorrectly summarized the evidence. The record reflects there was at least some evidence that Sanders had been present in the decedent's home. Also, the record reflects the trial court ruled on the objection with one word: "sustained."
It is the duty of the trial court to rule on objections. See Bachus, 803 S.W.2d at 405. The trial court did not embellish on the ruling, but simply resolved the objection. Harlan, 416 S.W.2d at 424; Johnson, 341 S.W.2d at 171-72. We cannot conclude that the trial court commented on the evidence.
V. Conclusion
The judgment of the trial court is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47
141037F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 1, Dallas County, Texas
Trial Court Cause No. F-1358529-H.
Opinion delivered by Justice Lang. Chief Justice Wright and Justice Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 27th day of January, 2016.