Kyong M. McLean v. The State of Texas

Houston, TX – Criminal Defense lawyer represented appellant with a prostitution charge.

Appellant worked at the Oriental Bathhouse. The Houston Police Department

sent Officer D. Nieto into appellant's workplace to investigate it on suspicion of

prostitution. Officer Nieto posed as an ordinary citizen and entered the business

alone but wearing a recording device. To enter the property, Officer Nieto had to pay

sixty dollars and cross through floor to ceiling metal security gates. McLean let

Officer Nieto into the establishment, took his money, led him to a private room,

directed him to a shower, bathed him, and returned him to the private room. Officer

Nieto put his clothes back on and turned on the recording device; appellant reentered

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the private room. Appellant and Officer Nieto negotiated the price for oral and

vaginal sex. Officer Nieto recorded this conversation with appellant and then phoned

the arrest team. While Officer Nieto waited for the arrest team, appellant undressed

and produced a condom. Once appellant suspected that the police had entered the

property, she re-dressed and hid the condom she had presented to Officer Nieto.

Officer Nieto arrested McLean. When the arrest team searched the property, they

found $3,700 in appellant's purse and unwrapped, unused condoms in a yogurt

container. Appellant was indicted on one count of prostitution.

During voir dire at appellant's trial, the trial court described the presumption

of innocence and other rights that defendants have during a criminal trial. The trial

court then stated:

Solicitation of prostitution, folks, like it or not, in this state,

its illegal under State law. We have some folks that

believe that it should be legal and that's your right to

believe that, but it's not legal in Texas to have a

prostitution service. Bottom line. Simple question: If you

cannot in good faith enforce that State law making

prostitution illegal, I understand that. I just need to know

right now that you can't do that job on this kind of case. So

if you just can't do this job on this kind of case, let me

know now by a show of hands. Anybody? All right. A lot

of folksthink that prostitution is a victimless crime. Let me

give you a hint. . . . We have had about 7,000 alleged

prostitutions in my court in 22 years [sic]. I will tell you

from this viewpoint up here, prostitution is not a victimless

offense. It affects families. It affects the people involved

Sexually transmitted diseases.

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in the prostitution itself. It has the potential of possibly

deadly STD's in your life. It is not a victimless crime. In 2

Texas, prostitution is against the law period. Can we agree

by a positive nod that you can enforce the law? Anybody

that cannot do that? All right. Good to see.

After these comments, the trial court described the role of jurors, stated that

jurors must apply the law regardless of their personal feelings on the general crime

of prostitution, and continued his voir dire. At the completion of the trial court's voir

dire, appellant objected to the judge's comments as inappropriate because they

"destroy[ed] the fundamental fairness of the jury process” and moved for a mistrial.

The trial court overruled appellant's objection and did not grant a mistrial.

Appellant's jury charge contained an accurate statement of the presumption of

innocence and the requirement to find a defendant guilty beyond a reasonable doubt.

McLean also filed a motion in limine asking for 15 different restrictions on

what could be said before or presented to the jury. The trial court granted 11 of the

requests but denied motions to: (1) prohibit all discussion of citizen complaints

against the Oriental Bathhouse; (2) keep all audio and video tapes out, because the

trial court found this to be moot; (3) keep all photographs and videotapes from being

shown to the jury; and (4) prevent the Oriental Bathhouse from being referred to as

a whorehouse or a house of prostitution.

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DISCUSSION

In four issues, appellant argues that the trial court's comments during voir dire

violated appellant's due process rights to a presumption of innocence and to an

impartial arbiter by impermissibly conveying his opinion of the case to the venire

panel in a manner reasonably calculated to prejudice appellant's rights to a

presumptions of innocence and a fair and impartial tribunal, thereby constituting

fundamental error, requiring reversal.

Specifically, appellant argues that the trial court's comments that he had heard

"about 7,000 alleged prostitutions” in his court "in 22 years” and that "prostitution

is not a victimless offense” because it has "the potential of possibly deadly STD's in

your life” tainted appellant's presumption of innocence by associating her with the

other prostitution cases tried before the court. Appellant contends that these

comments conveyed the trial court's opinion that appellant's case was no different

from the seven thousand prostitution casesthat preceded hers and that the judge's use

of the phrase "from this viewpoint up here” improperly indicated his opinion of the

case to the jury. Appellant contends that these comments constituted reversible,

fundamental error.

1. Preservation of Error

Rule 33.1 of the Texas Rules of Appellate Procedure requires that, in general,

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for a complaining party to preserve an alleged error for appellate review, the record

must show that the party raised the issue with the trial court in a timely and specific

request, objection, or motion. TEX. R. APP. P. 33.1(a); Griggs v. State, 213 S.W.3d

923, 927 (Tex. Crim. App. 2007). It is well established that nearly every right may

be waived when a party fails to object. See Saldano v. State, 70 S.W.3d 873, 887

(Tex. Crim. App. 2002). "To preserve error regarding improper voir dire questions,

a party must make a timely, specific objection at the earliest possible opportunity.”

Ross v. State, 154 S.W.3d 804, 807 (Tex. App.—Houston [14th Dist.] 2004, pet.

ref'd). An objection is timely when it is made at the earliest possible opportunity.

Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006). However, Texas

Rule of Evidence 103(d) provides that, "In a criminal case, nothing in these rules

precludes taking notice of fundamental errors affecting substantial rights although

they were not brought to the attention of the court.” TEX.R.EVID. 103(d). Therefore,

as a threshold matter, we address whether appellant preserved error through an

objection in the trial court and, if not, whether the error was fundamental error

affecting a substantial right and thus required no objection.

Here the trial court made the comments to which appellant objected

approximately half-way through the his voir dire, but appellant's trial counsel did not

object to these comments until the completion of the judge's voir dire. Between these

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comments and appellant's objection to them, the trial court discussed the pending voir

dire by the State and the defense, the offense of prostitution, the defense of

entrapment, the personal sensitivities of the jurors, the defenses to prostitution, and

the permissibility of convicting a defendant based on a single witness, and he

inquired whether the jurors knew anyone involved in the case and whether they would

be predisposed to believe or disbelieve testimony by a police officer. Only after the

trial court had discussed all of these issues did the defense object.

We conclude that, under these circumstances, appellant's objection was not

timely. See TEX. R. APP. P. 33.1(a); Ross, 154 S.W.3d at 807 ("To preserve error

regarding improper voir dire questions, a partymust make a timely, specific objection

at the earliest possible opportunity.”) Therefore, error was not preserved unless the

error was fundamental so that no objection to the trial court's comments was

necessary. See TEX. R. EVID. 103(d).

2. Fundamental Error

The applicable test for deciding whether a Texas court may address unassigned

error is set forth in Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App. 1993),

overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App.

1997). See Brumit v. State, 206 S.W.3d 639, 644 (Tex. Crim. App. 2006); Sanchez

v. State, 120 S.W.3d 359, 365–66 (Tex. Crim. App. 2003). Marin identified three

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types of rules: "(1) absolute requirements and prohibitions; (2) rights of litigants

which must be implemented by the system unless expressly waived; and (3) rights of

litigants which are to be implemented upon request.” Brumit, 206 S.W.3d at 644;

Marin, 851 S.W.2d at 279–80. Of these three categories, only "violations of 'rights

which are waivable only' and denials of 'absolute systemic requirements'” enable the

appellate court to hear a complaint without a proper trial objection. Aldrich v. State,

104 S.W.3d 890, 895 (Tex. Crim. App. 2003); Saldano, 70 S.W.3d at 888; see also

Williams v. State, 273 S.W.3d 200, 220 (Tex. Crim. App. 2008) (stating that failing

to object at trial generally waives complaint for appeal) (citing Marin, 851 S.W.2d

at 279). Rights that must be implemented unless expressly waived include the "rights

to the assistance of counsel, the right to a trial by jury, and a right of appointed

counsel to have ten days of trial preparation. . . .” Aldrich, 104 S.W.3d at 895.

"Absolute systemic requirements [that may not be waived] include jurisdiction of the

person [and] the subject matter, and a penal statute's being in compliance with the

Separations of Powers Section of the state constitution.” Id. Violation of these nonwaivable absolute systemic rights constitutes fundamental error. See Saldano, 70

S.W.3d at 887–88; Marin, 851 S.W.2d at 278 (stating, "Some rights are widely

considered so fundamental to the proper functioning of our adjudicatory process as

to enjoy special protection in the system. TEX. R. CRIM. EVID. 103(d). A principle

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characteristic of these rights is that they cannot be forfeited.”).

It is an unresolved issue whether and when a trial court's comments constitute

fundamental constitutional due process error that may be reviewed in the absence of

a proper objection. In Blue v. State, a plurality of the Texas Court of Criminal

Appeals held that a judge's comments to the venire indicating that the judge would

have preferred for the defendant to plead guilty were fundamental constitutional error

that tainted the presumption of innocence and, therefore, required no objection to be

preserved for appeal. 41 S.W.3d 129, 132 (Tex. Crim. App. 2000). Subsequently,

in Jasper v. State, the Court of Criminal Appeals held that, even if it were bound to

follow the plurality opinion in Blue, the judge's comments correcting defense

counsel's misrepresentation of previously admitted testimony, showing irritation at

the defense attorney, and clearing up a point of confusion failed to rise to "such a

level asto bear on the presumption of innocence or vitiate the impartiality of the jury”

and therefore, were not fundamental error. 61 S.W.3d 413, 421 (Tex. Crim. App.

2001); see also Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.—Houston [14th

Dist.] 2003, pet. ref'd) (stating that trial court may interject to correct misstatement

or misrepresentation of previously admitted testimony).

Similarly, in Brumit, while recognizing that a plurality of the court had held in

Blue that the judge's comments constituted fundamental error requiring no objection,

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the Court of Criminal Appeals concluded that it did not need to reach that issue

because the judge's comment that an earlier case made him think that anybody who

ever harmed a child should be put to death did not reflect bias, partiality, or the failure

of the trial court to consider the full range of punishment, and thus did not violate due

process, when the comments were made afterthe judge had heard extensive evidence

of the defendant's repeated sexual abuse of two children, the defendant had six prior

convictions for child sexual assault, and explicit evidence showed that the judge had

considered the full range of punishment in sentencing the defendant to life in prison.

206 S.W.3d at 644–45 (distinguishing Blue, 41 S.W.3d at 132). The court held,

"Due process requires a neutral and detached hearing body.” Id. at 645. However,

"[a]bsent a clear showing of bias, a trial court's actions will be presumed to have been

correct.” Id.; see also Gordon v. State, 191 S.W.3d 721, 726–27 (Tex.

App.—Houston [14th Dist.] 2006, no pet.) (holding that when judge had not

commented on defendant's guilt or innocence, his comments during voir dire that

criminal justice system treated everyone exactly alike and that defendant controlled

everything about systemwere comments on how criminal justice system operates and

did not constitute fundamental error); Davis v. State, 651 S.W.2d 787, 790 (Tex.

Crim. App. 1983) (holding that judge's comment to veniremen that if jury did not

follow law under court's instructions case would have to be tried again, although not

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proper instruction, did not imply that defendant would be convicted, was not

reasonably calculated to benefit or prejudice defendant, and thus was not reversible

error).

We conclude here, asthe Court of Criminal Appeals did in Brumit and Jasper,

that it is unnecessary for us to decide whether a trial court's comments that taint the

presumption of innocence or destroy fundamental fairness constitute fundamental

constitutional error that may be reviewed without a proper objection because the trial

judge's comments in this case did not rise to "such a level as to bear on the

presumption of innocence or vitiate the impartiality of the jury.” See Jasper, 61

S.W.3d at 421.

The trial court made his comments that he had had "about 7,000 alleged

prostitutions” in his court in 22 years, that, from his viewpoint, "prostitution is not

a victimless offense,” and that prostitution "has the potential for possibly deadly

STD's in your life” while qualifying jurors during voir dire. The judge's comments

occurred in the context of his explaining that many people do not believe that

prostitution should be a criminal offense, but that, regardless of their personal

feelings, jurors have to follow the law. In his voir dire of the venire panel, the judge

emphasized the importance of the presumption of the defendant's innocence "until

and unless proven guilty by the prosecution,” and he explained to the venire panel the

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requirement to find appellant guilty beyond a reasonable doubt and the meaning

associated with that term. After making the comments, the trial court granted all but

4 of appellant's 15 requests in her motion in limine. Appellant's jury charge

contained an appropriate statement on the presumption ofinnocence, the requirement

to find a person guilty beyond a reasonable doubt, an instruction that the criminal

information is not evidence of guilt, and instructions not to discuss the case with

people outside the jury panel.

This case is thus similar to Jasper, in which the Court of Criminal Appeals

refused to conclude that the judge's interjections to correct the misrepresentation of

previously admitted testimony, expression of irritation at the defense attorney, and

comments aimed at clearing up a point of confusion rose "to such a level as to bear

on the presumption of innocence or vitiate the impartiality of the jury.” 61 S.W.3d

at 421. It is also similar to Brumit, in which the Court of Criminal Appeals held that

the judge's comments that an earlier case made him think that anybody who ever

harmed a child should be put to death did not reflect bias, partiality, or the failure of

the trial court to consider the full range of punishment under the circumstances of the

case. 206 S.W.3d at 644–45. By contrast, it is wholly unlike Blue, in which a

plurality of the Court of Criminal Appeals held that the judge's comment to the jury

that he would have preferred that the defendant plead guilty, made after the trial judge

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indicated that the defendant was considering entering into plea agreement, "vitiated

the presumption of innocence” before the venire, adversely affecting the defendant's

right to a fair trial, and thus constituted fundamental constitutional error, requiring

a new trial. 41 S.W.3d at 132.

The trial court's comments here are also unlike appellate court cases finding

violations of article 38.05 of the Texas Code of Criminal Procedure, which prohibits

a judge from making "any remark calculated to convey to the jury his opinion of the

case.” TEX. CODE CRIM. PROC. ANN. art. 38.05 (Vernon 2009); see Clark v. State,

878 S.W.2d 224, 225–27 (Tex. App.—Dallas 1994, no pet.) (holding that judge's

statement during voir dire that allegations of enhancement "mean, that [the defendant]

has been previously convicted on two occasions of felony offenses” was reasonably

calculated to benefit State by "alert[ing] the venire to the court's opinion on a fact

issue raised by the evidence that the allegations contained in the enhancement

paragraphs actually meant that appellant had been convicted of those felonies,”

thereby lessening State's burden of proof regarding enhancement paragraphs,

prejudicing defendant's presumption of innocence, and violating article 38.05); Devis

v. State, 18 S.W.3d 777, 782 (Tex. App.—San Antonio 2000, no pet.) (holding that

judge's comment concerning giving appellant probation for murder violated article

38.05); Jones v. State, 788 S.W.2d, 834, 836 (Tex. App.—Dallas 1990, no pet.)

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(holding that judge's comments to jury in explaining decision to suspend jury

deliberations for evening because, even if deliberations were to continue, jury

members would have to return on following day for second punishment phase were

reversible error under article 38.05 because they impermissibly conveyed judge's

opinion to jury that he believed guilty verdict would or should be forthcoming).

We overrule appellant's first, second, third, and fourth issues

We affirm the judgment of the trial court.