Hervey, J., filed a concurring opinion in which Keasler, J., joined.

I disagree that the trial court commented on the weight of the evidence when it instructed the jury that “intent or knowledge may be inferred by acts done or words spoken.” This instruction does not “express any opinion as to the weight of the evidence” which is what the plain language of Article 36.14, Tex. Code Crim. Proc., actually prohibits. See also Brown v. State, S.W.3d slip op. at 6 (Tex.Cr.App. No. 0059-03, delivered this date) (comment on weight of evidence is “any remark [by the trial judge] calculated to convey to the jury [the trial judge’s] opinion of the case”); Watts v. State, 99 S.W.3d 604, 611 n.24 (Tex.Cr.App. 2003) (Article 36.14 forbids trial judge from “any discussion in the jury’s presence of evidence adduced at trial which might suggest to the jury the judge’s personal estimation of the strength or credibility of such evidence or which might tend to emphasize such evidence by repetition or recapitulation”). In addition, Article 36.14 does not contain an “improper-judicial-comment” sliding scale as explained by the Court’s opinion. See Brown, slip op. at 7 (“far end”), at 9 (“middle”), at 11 (“near end”). The Article 36.14 issue simply is whether the instruction “expresses [the trial judge’s] opinion as to the weight of the evidence.”

The resolution of this rather straightforward question is somewhat complicated by this Court’s decisions in Browning and Mercado. See Browning v. State, 720 S.W.2d 504 (Tex.Cr.App. 1986); Mercado v. State, 718 S.W.2d 291 (Tex.Cr.App. 1986). The Court of Appeals, however, did a fine job of distinguishing these cases and explaining why they do not control the disposition of this case. See Brown v. State, 92 S.W.3d 655, 663-65 (Tex.App.–Dallas 2002).

Even so Browning and Mercado are somewhat problematical with the plain language of Article 36.14. Browning was a burglary of a habitation case in which the jury was instructed that it may presume the defendant’s intent to commit theft from evidence that he broke into the building at nighttime. See Browning, 720 S.W.2d at 507-08. Browning decided that this was a comment on the weight of the evidence because the “jury was instructed, in other words, that they could ignore appellant’s defensive evidence altogether.” See id. Mercado was an attempted murder case in which the jury was instructed that it could presume the defendant’s intent to kill from the use of a deadly weapon. See Mercado, 718 S.W.2d at 292-93. Following Browning, Mercado decided that this was a comment on the weight of the evidence by “singling out one reasonable inference.” See id.

It is difficult, however, to characterize these instructions as the trial court expressing its opinion on the weight of the evidence or the “judge’s personal estimation of the strength or credibility of such evidence.” And, with its use of such phrases as “in other words,” Browning and Mercado apparently could only do so by recasting the instructions to say something that they really did not say.

This is not to say that the instructions in these cases were proper. But, if they were improper, it has to be for some other reason than that they were comments on the weight of the evidence. For example, it could be argued that they violated due process. See generally Francis v. Franklin, 471 U.S. 307 (1985). But, since these instructions (as the one at issue here) were not “cast in the language of command,” then it is doubtful that they violated due process. See Francis, 471 U.S. at 311-18; Brown, slip op. at 7-8.

Since I cannot conclude that the instruction in this case was a comment on the weight of the evidence, I would decide, consistent with the approach in our decision in Mendoza v. State, that it is within a trial court’s discretion to submit this instruction and that the trial court did not abuse its discretion to do so in this case. See Mendoza v. State, 88 S.W.3d 236, 240 (Tex.Cr.App. 2002). The Court’s “improper judicial comment” (far end, middle, near end) sliding scale¹ has the very real potential of creating wasteful future litigation particularly in analyzing jury instructions such as the one here that (if erroneous) are never harmful. In finding the error in this case harmless, the Court’s opinion “in other words” says as much.

With these comments, I concur only in the Court’s judgment.

Hervey, J.

Filed: December 3, 2003
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¹
Brown, slip op. at 12 (analyzing the instruction in this case with the “improper-judicial comment scale in mind”) (internal quotes omitted).