Full Opinion

Court of Appeals Tenth Appellate District of Texas 10-24-00362-CR Justin Nasir Shah, Appellant v. The State of Texas, Appellee On appeal from the 54th District Court of McLennan County, Texas Judge Susan N. Kelly, presiding Trial Court Cause No. 2023-1139-C2 CHIEF JUSTICE JOHNSON delivered the opinion of the Court. MEMORANDUM OPINION A jury found Appellant, Justin Nasir Shah, guilty of the felony offense of burglary of a habitation with the intent to commit another felony. See TEX. PENAL CODE ANN. § 30.02. The trial court assessed his punishment at life in the penitentiary and sentenced him accordingly. See id. § 12.32. This appeal ensued. In his sole issue, Shah argues that the trial court erred by improperly admonishing him in a way that coerced or unduly influenced his decision not to testify. A. Background On August 3, 2023, Shah was indicted for the offense of burglary of a habitation with the intent to commit the felony offense of sexual assault. During trial, the victim, Kristen Jones, and her husband, Robert, testified that they went to a bar to have a drink on May 4, 2023. While at the bar, Robert struck up a conversation with Shah and exchanged phone numbers. After a few hours, the Joneses left the bar and returned home. Robert texted Shah about meeting up and continuing to drink, and Shah came over to the Jones house. Robert and Shah went to Robert’s office across town to continue drinking, but Kristen stayed at home. Not long after arriving at Robert’s office, Shah decided to leave. Robert testified that he did not know where Shah was planning to go when he left and did not give Shah permission to go back to the Jones house. Kristen testified that she had fallen asleep after Robert and Shah left, but she “felt pain to [her] forehead” and woke up. She realized she was being punched and could not move because Shah had his knees over her arms. Shah had his pants down and was putting his penis in her mouth telling her to “suck it.” Kristen said she eventually was able to get out from under Shah and got off the bed, but she got pushed back onto the bed. Shah v. State Page 2 Shah then fired a gun twice by Kristen’s head before pointing the gun at Kristen’s son, so Kristen started kicking Shah in the abdomen. Kristen later realized that Shah had shot himself. Shah fled from the house, and Kristen called police. Police located Shah at a motel a couple of days after the offense and arrested him. Shah was wearing a GPS monitor at the time of the offense, which showed that he was at the Jones house on the morning of the offense. Additionally, DNA testing confirmed that blood found in the house belonged to Shah. B. Preservation of Error The State argues that Shah failed to preserve his complaints because he did not object to the trial court’s admonishment at trial. See TEX. R. APP. P. 33.1(a)(1). We will assume, without deciding, that Shah’s complaints are preserved. C. Authority A criminal defendant’s right to testify is protected by several provisions of the U.S. and Texas constitutions. See Rock v. Arkansas, 483 U.S. 44, 51–53 & n.8, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Smith v. State, 286 S.W.3d 333, 338 n.9 (Tex. Crim. App. 2009). However, a defendant may knowingly and voluntarily waive that right. Smith, 286 S.W.3d at 338 n.9. Shah v. State Page 3 A trial court is not prohibited from admonishing a witness on the risks of testifying. Cf. Knotts v. State, 61 S.W.3d 112, 116 (Tex. App.—Houston [14th Dist.] 2001, pet. ref ’d). When deciding whether the right to testify was infringed or not voluntarily waived because of alleged improper comments by the trial court, many courts have invoked the coercion standard. See Jones v. State, 691 S.W.3d 231, 239 (Tex. App.—Austin 2024, pet. ref ’d) (collecting cases). The coercion standard stems from Webb v. Texas, in which the Supreme Court of the United States held that a trial court’s comments to a criminal defendant’s sole witness deprived the defendant of due process by “effectively dr[iving] that witness off the stand.” 409 U.S. 95, 97-98, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972). Although the case is about defense witnesses, Webb has often been applied to complaints about the defendant’s right to testify. See Jones v. State, 691 S.W.3d at 241 (collecting cases). The comments in Webb went beyond “warning the witness of his right to refuse to testify and of the necessity to tell the truth”; they, in “threatening” and “unnecessarily strong terms,” communicated that the court expected that the witness would lie and “assured [the witness] that if he lied, he would be prosecuted and probably convicted for perjury,” leading to a new sentence of punishment and hurting his chances for parole. See Webb, 409 U.S. at 97–98. Shah v. State Page 4 Cases applying Webb-derived reasoning have identified only a few circumstances that tend to show that a trial court has coerced the defendant out of testifying. See Jones, 691 S.W.3d at 241 (comments advising defendant of possible consequences of taking the stand or laying out potential cross- examination topics if defendant chose to testify were not coercive); see also United States v. Stile, 845 F.3d 425, 431 (1st Cir. 2017) (“[I]n Webb the admonitions were the product of an opinion preemptively formed before the defendant even began his defense.”); Arthur v. United States, 986 A.2d 398, 408-09 (D.C. 2009) (discussing case in which trial-court comments tended to cross Webb’s line because they, “taken in their entirety, implied doubt about the version of the facts” that the witness at issue would offer); People v. Vaughn, 354 Ill.App.3d 917, 290 Ill.Dec. 434, 821 N.E.2d 746, 753–54 (2004) (“A trial judge’s admonitions are improper if they indicate the judge is no longer acting in the role of neutral decision-maker,” “[f]or instance, when a trial judge predicts the outcome of a case based on witness’s decision to testify.”); Woolfolk v. Commonwealth, 339 S.W.3d 411, 415–18 (Ky. 2011) (trial court’s warning that if the defendant testified differently from what he had told his attorney about the underlying events, he would then be subject to a perjury charge was impermissible because the trial court was wrong that the defendant’s statements to his attorney could give rise to a perjury charge). Shah v. State Page 5 D. Analysis After learning that Shah intended to testify, the State notified the trial court of its intention to cross-examine Shah on prior convictions and other bad acts. The parties presented arguments about the admissibility of the evidence, but the trial court did not make a ruling at that time, stating: I don’t know what he’s gonna say. If he is gonna say that he wasn’t there, perhaps. If he’s gonna say it was consensual, the things that [the State] just raised, he’s gonna get to cross-examine him on those things. But, yeah, I don’t -- I don’t know what he’s gonna testify to. The trial court then allowed a brief recess for Shah and his attorney to confer. Directly after the recess, the trial court admonished the defendant as follows: THE COURT: Yes. Mr. Shah, your lawyer is saying that you want to testify. Mr. Shah? By doing so, by coming up here, you’re giving up your right to remain silent. You don’t get to pick and choose what is said. You will be subject to cross-examination. And there is a very strong likelihood that other misconduct or alleged misconduct by you will be admissible and will come in, and it could incriminate you or hurt you by testifying. I want to make sure that you understand that the Fifth Amendment to the United State’s [sic] Constitution guarantees you the right not to testify, if you choose not to. And no one -- they cannot consider it and they cannot allude to it in any way. But if you take that stand, you’re gonna – you’re gonna have to testify. Once you say you didn’t do it or why you didn’t do it or what you thought happened, you can bet you’re going to be rigorously cross-examined, and I’m probably going to allow it. So you understand all that, right? And you want to testify? Shah v. State Page 6 [SHAH]: No, Your Honor. THE COURT: You’ve changed your mind? [SHAH]: Yes. The trial court’s admonishment did not go beyond outlining possible consequences of taking the stand or potential cross-examination topics. See Jones, 691 S.W.3d at 241. Accordingly, we cannot say that the trial court’s admonishments coerced Shah, meaning he voluntarily waived his right to testify. Therefore, we overrule Shah’s sole issue. E. Conclusion Having overruled Shah’s sole issue, we affirm the judgment of the trial court. MATT JOHNSON Chief Justice OPINION DELIVERED and FILED: October 22, 2026 Before Chief Justice Johnson, Justice Harris, and Justice Westerfeld Affirmed Do Not Publish CRPM Shah v. State Page 7