Maybe I am reading this wrong, but doesn't this summary indicate that the Houston COA is endorsing jury nullification???

15. Watts v State
14th Court of Appeals - Houston
April 29, 2004 - 14-99-00811-CR
Click here for full-text court opinion (requires free Acrobat Reader software to view).
Click here to see case on LexisNexis
Opinion By: Hudson, J.

Rate the significance of this case
See ratings and comments

Comment on evidence by trial judge cannot be considered harmless.
D was charged by information with two counts of water pollution and convicted. On original submission, the Court of Appeals affirmed in Watts, 56 SW3d 694. The Texas Court of Criminal Appeals reversed holding that the trial judge erred by (1) taking judicial notice of the law in the jury�s presence and (2) commenting on the weight of the evidence [Watts, 99 SW3d 604, 611�13. The court then remanded to the Court of Appeals to conduct a harm analysis. Held: Reversed. A central issue in the trial of that case was whether a drainage ditch constituted �water in the state,� and, thus, was protected from pollution by the Texas Water Code. The essence of the error here was that, by improperly taking judicial notice that a drainage ditch is �water in the state,� the trial court thereby commented on the weight of the evidence. A trial court improperly comments on the weight of the evidence if it makes a statement that implies approval of the State�s argument, that indicates any disbelief in the defense�s position, or that diminishes the credibility of the defense�s approach to its case. Here, one of the contested issues before the jury was whether a drainage ditch, in which water flowed only intermittently, was �water in the state.� Although the trial court did not require the jury to find the drainage ditch was protected by the Texas Water Code, it did authorize the jury to accept this matter as a conclusive fact. Because D may have been deprived of his right to have a jury determine this issue, the error was reviewed under the standard for �constitutional error� [44.2(a) R App Pro]. In closing argument to the jury, D�s counsel attempted to persuade jurors that a drainage ditch was not �water in the state� because the words �drainage ditch� do not appear in the statutory definition of that term. Counsel�s argument had no legal merit, but statutes are not always drafted so as to �exclude every misinterpretation capable of occurring to intelligence fired with a desire to pervert.� While the Court of Appeals stated that it was persuaded that a drainage ditch is, as a matter of law, �water in the state,� the Court also recognized that without the benefit of the trial court�s instruction, it is conceivable D�s counsel might have induced the jury to believe otherwise. Accordingly, the Court could not say beyond a reasonable doubt that the trial court�s instruction did not contribute to D�s conviction and the error could not be considered harmless.

It seems fairly clear that defense counsel is not going to be able to make the same argument upon retrial- at least I don't think counsel are entitled to make an argument contrary to law. E.g. Melendez, 4 S.W.3d at 442. So, I agree that the fact the trial court's instruction in the charge commented on the weight should not be considered harmful merely because it tended to overcome or render ineffective defense counsel's improper argument. The problem is rather that the instruction impacted the state's burden of proof. I am not sure there is true support for the idea that "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 or her view of the weight of the evidence, or the merits of the issues involved". The more frank conclusion would be that we can never know how much (or even if) such an instruction actually influences a jury. But, I think a true comment almost always will be considered harmful. I would not agree that this type of comment "deprive[d] the defendant of a jury trial on the disputed element or fact issue". It merely conceivably changed how the jury might have viewed the evidence- because it was being nudged by the court.

I certainly hope the court is not meaning to imply that defense counsel are entitled to argue for a position contrary to law by mentioning the fact such an argument was made in this case. But, the discussion does seem out of place and it is hard to know what else "accordingly" means in the next sentence of the opinion.

The fact such argument was made should in no way increase the harm suffered by the defendant. Nor is it entirely clear the defendant's "right to a jury verdict based on the jury's determination of the meaning of the undefined statutory terms, in accordance with common parlance and understanding" was violated in this case. But, clearly that would be the better ground for the ruling. The majority needed to listen to Justice Frost.