Harvey Lee Isadore v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-22-00268-CR
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HARVEY LEE ISADORE, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 20-34089
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MEMORANDUM OPINION

A jury found Harvey Lee Isadore guilty of continuous sexual abuse of two

children younger than fourteen, “James” and “Jill,” a first-degree felony. See Tex.

Penal Code Ann. § 21.02.1 At the conclusion of trial, the jury assessed Isadore’s

punishment at twenty-eight years of imprisonment. See id. § 12.32(a).

1We refer to the crime victims by pseudonym to protect their privacy. See Tex.

Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness
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On appeal Isadore argues two issues. First, he argues that the trial court

committed reversible error by striking at him over the shoulders of defense counsel

when it improperly chastised and shamed counsel in front of the jury. Second, he

argues that reversible error occurred when the State engaged in improper argument

on unproven extraneous bad acts. We affirm.

Background

We limit our background discussion to the issues on appeal. At trial, several

witnesses testified, including forensic interviewers, police officers, investigators, a

SANE examiner, sexual assault counselors, and the child victims. James and Jill

testified that Isadore sexually abused them when they were seven and eight by

putting his sexual organ into their body. Isadore took the stand and denied all

allegations of sexual abuse against James and Jill. At the conclusion of trial, a jury

convicted Isadore of continuous sexual abuse of the children, and after a separate

trial for punishment, sentenced him to twenty-eight years’ incarceration in the Texas

Department of Criminal Justice. He timely appealed.

and with respect for the victim’s dignity and privacy throughout the criminal justice
process”).
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Issue One

In his first issue, Isadore argues the trial court committed reversible error

when it chastised his defense counsel in the jury’s presence. Specifically, he

contends that “[b]y striking at appellant over the shoulders of defense counsel, the

trial court denied [him] a fair trial.” The State argues Isadore failed to preserve his

complaint for our review. We agree.

On appeal, Isadore complains about the following exchange between the trial

court and trial counsel during defense counsel’s direct examination of Isadore.

[DEFENSE COUNSEL]: Whenever you were over there, were other
people around when they came over to ask you to help? Was somebody
at the house?

[ISADORE]: Yes, all the time. His wife…there’s a side door right there
on the side. You come out of there and right there. Ain’t no way nobody
doing nothing in there without her knowing or going in there, him also.

[DEFENSE COUNSEL]: You couldn’t get in there anyway, cause it
was locked?

[THE STATE]: Objection, your Honor. If [Defense Counsel] is going
to keep testifying, can we put him under oath?

[DEFENSE COUNSEL]: You can put me under oath any time you
want, [the State].

THE COURT: All right. Both of you, both of you.

[DEFENSE COUNSEL]: I’m sorry, Judge.

THE COURT: This Court demands collegiality and professionalism.

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[DEFENSE COUNSEL]: I apologize.

THE COURT: Shame on one or both of you that show it, especially in
front of the voters and the citizens of this county who demand the
highest and expect the highest performance levels in this courtroom, as
I do.

[DEFENSE COUNSEL]: Yes, your Honor.

THE COURT: We’re talking about a legacy that we’re living from the
Constitution. I don’t need to repeat my experiences. I’ve had to stand
up to the violations of the Constitution and in the James Byrd case and
see right from wrong and standing up for what people have sacrificed
for 233 years. I don’t want to see that again; or I will act accordingly,
as I have the lawful authority to do. Your objection was a leading
question, I believe, is the legal objection.

[DEFENSE COUNSEL]: I’ll move on, Judge.

THE COURT: I don’t want objections that are long-winded arguments.
Make a legal objection as we wrote the rules of evidence. Leading
question, it is a leading question. The objection is sustained. Let’s all
act as I know y’all are capable of doing and the highest professional
example that you can show because you do it all the -- you do it
regularly. Go ahead, please?

[DEFENSE COUNSEL]: May it please the Court?

THE COURT: Yes.

Defense counsel did not object to the trial court’s remarks. “To preserve an

issue for appellate review, a party must lodge a timely objection and state the specific

legal basis for the objection.” Sartin v. State, 680 S.W.3d 663, 667 (Tex. App.—

Beaumont 2023, no pet.); Tex. R. App. P. 33.1. “Preservation of error is a systemic

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requirement on appeal.” Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

When an issue is not preserved for appeal, the court of appeals should not address

its merits. Id.

“Ordinarily, a complaint regarding an improper judicial comment must be

preserved at trial.” Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013).

Citing the plurality’s opinion in Blue v. State, 41 S.W.3d 129, 132–33 (Tex. Crim.

App. 2000), Isadore argues no objection was necessary because the trial court’s

comments constituted fundamental error which undermined his right to a fair trial.2

In Blue, the trial judge apologized to the panel members about a long delay before

starting the trial and explained that the delay had been caused by the defendant’s

indecision about whether to accept a plea agreement or go to trial. Id. The trial court

commented, “Frankly, obviously, I prefer the defendant to plead because it gives us

more time to get things done.” Id. The defendant did not object, but on appeal, argued

the trial judge’s comments were fundamental error. The Court of Criminal Appeals

agreed because the trial judge’s comments “tainted the presumption of innocence.”

Id. The Court reasoned, “A juror who hears the judge say that he would have

2“[T]he Blue decision has no precedential value” because “it is not possible to

ascertain a majority holding or the narrowest ground or rule that commands a
majority of the court.” Unkart, 400 S.W.3d at 101. Nevertheless, Blue may be cited
for any persuasive value it may have. Id.
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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.” Id.

Isadore also cites Pitre v. State, No. 09-95-140 CR, 1997 Tex. App. LEXIS

3883, at *8 (Tex. App.—Beaumont July 23, 1997, no writ) (not designated for

publication), where we observed, “The trial judge is responsible for the general

conduct of the trial, and he may properly intervene to promote its expedition. We

allow him discretion in expressing himself while he controls the trial, even though

he should refrain from verbally confronting or displaying displeasure towards

counsel.”

As in Unkart, “[w]hat happened in the present case is a far cry from what

happened in Blue.” Unkart, 400 S.W.3d at 102. The trial court’s remarks in this case

could not have had any effect on the presumption of innocence, nor did they express

an opinion about the case. Instead, the trial court addressed what it apparently

perceived as a lack of decorum on the part of both attorneys. As Isadore concedes in

his brief, the trial judge’s comments were directed at both the prosecutor and defense

counsel. The judge did not single out defense counsel. If anything, the judge’s

remarks appear to have been directed more toward the prosecution than the defense:

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“Your objection was a leading question, I believe, is the legal objection… I don’t

want objections that are long-winded arguments. Make a legal objection as we wrote

the rules of evidence. Leading question, it is a leading question.”

As we stated in Pitre, although the trial judge may have expressed impatience

with the trial attorneys, the record “does not reflect that the complained-of statement

conveyed the judge’s opinion of the case or that it prejudiced appellant.” Pitre, 1997

Tex. App. LEXIS 3883, at *8. The record does not support Isadore’s argument that

the trial court’s comments deprived him of a fair trial. Therefore, we hold the trial

court’s remarks in this case do not constitute fundamental error. Because no

contemporaneous objection was made in the trial court, Isadore’s complaints on

appeal were not preserved for our review. We overrule Isadore’s first issue.

Issue Two

In his second issue, Isadore argues “the State engaged in improper argument

by implying that appellant had abused other children in his family[,]” and “[n]o

objection could have cured the error because no instruction could have removed the

harm caused by the egregious argument.” Once again, the State argues Isadore failed

to preserve the complaint for our review. We agree.

Isadore directs our attention to the following statement made by the State

during closing argument.

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Mr. Isadore also said that he had four children by four women, two
daughters, two sons, and grandchildren. But he couldn’t tell you how
many grandchildren he had. He couldn’t tell you the names of his
grandchildren. But he could tell you this: His two daughters don’t come
around. They don’t see him. They don’t call him. He tried to blame that
on their mother but, as he said, they’re 30 and 36 years old. If they loved
their daddy and they wanted to talk to their dad and visit with their dad,
they could do it on their own. There’s a reason those girls do not come
around this man; and if they have children, which he doesn’t even seem
to know, there’s a reason they don’t bring those kids around. And I
asked him, I asked him about his son’s son, the woman who had a child
with him. He goes, oh, she doesn’t come around. I don’t see him. He
doesn’t know anything about him, another person in his own family
who will not come around him and will not bring their children around
him. But he does have access to children. He said so, his nieces and his
nephews. He also told you that he was shot above the heart, that he
spent four days in the hospital, but he couldn’t tell you when that was.
You know, if I got shot, I think I would remember when I got shot. If I
spent four days in a hospital for it and it affected my ability to ride a
bicycle, I would remember when I got shot. I’m not sure how getting
shot in the chest keeps you from sitting your behind on a bicycle, but
that’s what he said, if you believe him.

Defense counsel did not object to this argument. On appeal, Isadore argues he

was not required to object, because the argument was incurable. “Even incurably

improper jury argument is forfeitable.” Hernandez v. State, 538 S.W.3d 619, 623

(Tex. Crim. App. 2018). “[A] defendant’s ‘right’ not to be subjected to incurable

erroneous jury arguments is one of those rights that is forfeited by a failure to insist

upon it. Therefore, we hold a defendant’s failure to object to a jury argument or a

defendant’s failure to pursue to an adverse ruling his objection to a jury argument

forfeits his right to complain about the argument on appeal.” Cockrell v. State, 933

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S.W.2d 73, 89 (Tex. Crim. App. 1996) (citing Marin v. State, 851 S.W.2d 275, 279

(Tex. Crim. App. 1993) and Campbell v. State, 900 S.W.2d 763, 774-77 (Tex.

App.—Waco 1995, no pet.) (Thomas, C.J., concurring)).

Because the defense did not object to the challenged argument, we conclude

that Isadore failed to preserve his complaint for our review. See Tex. R. App. P.

33.1(a); Hernandez, 538 S.W.3d at 623. We overrule Isadore’s second issue.

Having determined Isadore failed to preserve either of his two issues for

appellate review, we affirm the trial court’s judgment.

AFFIRMED.

KENT CHAMBERS
Justice

Submitted on March 20, 2024
Opinion Delivered October 23, 2024
Do Not Publish

Before Golemon, C.J., Johnson and Chambers, JJ.

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