Court of Criminal Appeals of Texas,

En Banc.

Benjamin Leon BLUE, Appellant,

v.

The STATE of Texas.

No. 1254-99.

Dec. 13, 2000.

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.

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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.

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*131 [1] 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. [FN1] 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).

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[2] 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.

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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 (5th 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 (5th 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 *133 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.