Appellant Benjamin Leon Blue was convicted of aggravated assault on a public servant. See Tex. Pen. Code § 22.01(a)(1) & (b)(1). The jury assessed punishment at confinement for 10 years and a fine of $3,000. On appeal, appellant complained, inter alia, about the trial judge's comments to members of the venire at the beginning of the jury selection process. In an unpublished opinion, a divided panel of the court of appeals affirmed. Blue v. State, No. 01-96-00771-CR (Tex. App.--Houston [1^st Dist.] June 25, 1998) (not designated for publication), 1998 WL 352724, 1998 Tex. App. LEXIS 4008. A rehearing en banc was granted on the court's own motion. The panel opinion was withdrawn, and a divided court again affirmed the conviction, issuing five opinions. Blue v. State, 983 S.W.2d 811 (Tex. App.--Houston [1st Dist.] 1998) (en banc). We granted appellant's petition for discretionary review solely to determine whether the court of appeals erred in determining that error regarding admonishment of the jury was not properly preserved because no objection was made at trial. We reverse and remand.

The record shows that at the beginning of the jury selection process, the trial judge apologized to a group of prospective jurors for their long wait. In doing so, he stated:

[This case], which we are going on, is a situation where the attorney has been speaking to his client about what does he want to do. And when you are on the button like these cases, it's a question. Frankly, an offer has been made by the State or do I go to trial. And he has been back and forth so I finally told him I had enough of that, we are going to trial. You have been sitting out here and this is holding up my docket and I can't get anything done until we know if we are going to trial or not.

Frankly, obviously, I prefer the defendant to plead because it gives us more time to get things done and I'm sure not going to come out here and sit. Sorry, the case went away and we were all trying to work toward that and save you time and cost of time, which you have been sitting here and I apologize about that. I told the defendant that. Like I said, I have enough of this and going to trial.

The trial judge then attempted to explain to the jury why a defendant, though innocent, might not testify:

Because there are many reasons why defendants do not testify and I have seen many that have nothing to do with their guilt or innocence. I have seen defendants that are so nervous they could not hear the question much less respond to one. There are defendants that have speech impediments. There are defendants that, frankly, look guilty and they are not guilty and their attorney tells them I don't think you'd make a good witness because you cannot enunciate, not really set forth what you are trying to say very well. And you will be up there and stammering and stuttering, it probably won't look good for you.

It's like I tell all the juries and I get Sister Teresa and I represent her for mass murder. And she is guilty as driven snow and the jury doesn't know that but the defendant's attorney knows it because she admitted it privately. What am I going to do; I am going to put Sister Teresa on the stand because nobody thinks she would tell a lie. She looks like she would be a very honest person and I can put her on the stand. I could have a defendant as innocent as can be and looks guilty and I wouldn't put her on the stand.

Appellant did not object to any of these statements.

On appeal, appellant asserted that when a trial judge makes a fundamentally erroneous statement, no objection is required for reversal. He also argued that an objection is futile because the judge himself made the comments. Finally, he contended that the error was incurable. The State argued that the failure to object waived any error.

The court of appeals held that the trial court's admonishment of the jury was not properly preserved because no objection was made to the trial judge's comments. Blue, 983 S.W.2d at 812. It applied the general rule that, in order to preserve for appellate review a complaint about a trial judge's comments during trial, counsel must object or otherwise bring the complaint to the trial judge's attention so that the judge has the opportunity to correct the error. Because appellant failed to object, the judgment in the trial court was affirmed. Id.

As the court of appeals noted, the general rule is that counsel must object to the trial judge's comments during trial in order to preserve error. Blue, 983 S.W.2d at 812; Tex. R. App P. 33.1. ⁽¹⁾ However, pursuant to Texas Rule of Evidence 103(d), we are authorized to "tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." As we have previously stated, "Some rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system. A principle characteristic of these rights is that they cannot be forfeited. That is to say, they are not extinguished by inaction alone. Instead, if a defendant wants to relinquish one or more of them, he must do so expressly." Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).

More than eighty years ago, we stated that

too much caution cannot be exercised in the effort to avoid impressing the jury with the idea that the court entertains any impressions of the case which he wishes them to know, and putting before them matters which should not enter into or affect their deliberations . . . should in all cases be avoided. To the jury the language and conduct of the trial court have a special and peculiar weight. The law contemplates that the trial judge shall maintain an attitude of impartiality throughout the trial. Jurors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved. The delicacy of the situation in which he is placed requires that he be alert in his communications with the jury, not only to avoid impressing them with any view that he has, but to avoid in his manner and speech things that they may so interpret.

LaGrone v. State, 209 S.W. 411, 415 (1919). ⁽²⁾ Similarly, more than one hundred years ago the United States Supreme Court commented that "[i]t is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling." Starr v. United States, 153 U.S. 614, 626, 14 S. Ct. 919, 923, 38 L. Ed. 841 (1894) (citing Hicks v. United States, 150 U. S. 442, 452, 14 S. Ct. 144, 147-48, 37 L. Ed. 1137 (1893)); see also Bollenbach v. United States, 326 U.S. 607, 612, 66 S. Ct. 402, 405, 90 L. Ed. 350 (1946) (citing Starr). ⁽³⁾

In this case, the judge's comments imparted information to the venire that tainted the presumption of innocence. A juror who knows at the outset that the defendant seriously considered entering into a plea agreement no longer begins with a presumption that the defendant is innocent. A juror who hears the judge say that he would have preferred that the defendant plead guilty might assume that the judge knows something about the guilt of the defendant that the juror does not. Surely, no trial judge would want an innocent man to plead guilty, no matter how much delay and expense he might be causing.

In United States v. Bray, 546 F.2d 851 (10^th Cir. 1976), the United States Court of Appeals for the Tenth Circuit held that it was plain error when the trial judge's comments and actions damaged the presumption of innocence in the presence of the jury:

We hold that the court committed plain error in setting Bray's bail in the presence of the jury. . . . By setting bail within the jury's presence and admonishing the marshals to "lock him up" if bail was not met, the court effectively vitiated the presumption of innocence. . . . A trial judge has both great responsibility and discretion in conducting the trial of a case. He should be the exemplar of dignity and impartiality. He must exercise restraint over his conduct and statements in order to maintain an atmosphere of impartiality. We are cognizant of the strain and emotional stress imposed upon a trial judge who is endeavoring to conduct the trial in a firm, dignified and restrained manner when he is confronted by a litigant who, like Bray, treats him with disrespect and who openly insults and humiliates him. Even so, it is prejudicial error for the judge to make remarks that clearly import his feelings of hostility toward the defendant. The remarks of the trial judge relative to Bray's bond, with the inferences which must be drawn, cannot be justified or rationalized as fair and impartial. These remarks constitute plain error.

Id. at 859. Similarly, the comments of the judge in this case cannot be viewed as fair and impartial. While the judge himself might have been able to maintain impartiality in presiding over the trial, despite his apparent hostility toward the defendant for causing delay, his comments "vitiated the presumption of innocence" before the venire, adversely affecting appellant's right to a fair trial.

The comments of the trial judge, which tainted appellant's presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection. Bray, supra; United States v. Lanham, 416 F.2d 1140 (5^th Cir. 1969) (actions of trial judge who improperly injected himself into role of prosecutor during trial destroyed neutrality and impartiality of trial atmosphere, defendant's credibility, and defendant's presumption of innocence, and constituted plain error); United States v. Haywood, 411 F.2d 555 (5^th Cir. 1969) (trial judge who, in presence of jury, twice interrupted charge and informed defendant of right to allocution, before case was submitted to jury for decision effectively destroyed defendant's presumption of innocence and committed plain error); see also United States v. Filani, 74 F.3d 378 (2d Cir. 1996) (trial court's extended and critical questioning of defendant gave jury impression of partiality and was plain error); United States v. Fernandez, 496 F.2d 1294 (5th Cir. 1974) (prosecutor's argument that sought to impose a "presumption of guilt," together with failure of charge to instruct on the presumption of innocence, was plain error).

We hold that appellant's failure to object to the trial judge's comments did not waive error. Appellant's ground for review is sustained. The judgment of the court of appeals is reversed, and the cause is remanded for proceedings consistent with this opinion.

Johnson, J.

Date Delivered: December 13, 2000

En Banc

Publish

1. The briefs of both appellant and the state to the court of appeals were filed with that court in late 1996 and early 1997 respectively, and refer to former Rule 52(a) of the Texas Rules of Appellate Procedure. By the time the court of appeals handed down its opinion, the current rule on preservation of error was Rule 33.1.

2. See also Anderson v. State, 202 S.W. 944, 946 (Tex. Crim. App. 1918) ("The law contemplates that the trial judge shall maintain an attitude of impartiality throughout the trial, and it has been often held that his views or impressions of the weight of the evidence or upon the issues in the case may be conveyed to the jury as effectively by other means as by charge of the court."); Simmons v. State, 117 S.W. 141, 143 (Tex. Crim. App. 1909) ("The trial judge is to the jury the Lord's anointed. His language and his conduct have to them a special and peculiar weight.").

The legislature has also prohibited, "at any stage of the proceeding previous to the return of the verdict, [the trial judge from] mak[ing] any remark calculated to convey to the jury his opinion of the case." Tex. Code Crim. Proc. art. 38.05.

3. More than forty years ago, the Fifth Circuit stated that trial judges "must not only refrain from actions which are prejudicial but as well those which do or might give such impression to a jury of laymen whose awesome respect for the institution of the [j]udge leads them to accord great and perhaps, decisive significance to his every word or intimation . . . ." Papalia v. United States, 243 F.2d 437, 442 (5^th Cir. 1957).