No. 01-07-01083-CR
Opinion issued November 10, 2010. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from County Criminal Court at Law No. 7, Harris County, Texas, Trial Court Cause No. 1449127.
Panel consists of Chief Justice RADACK and Justices MASSENGALE and NUCHIA.
The Honorable Sam Nuchia, Senior Justice, Court of Appeals for the First District of Texas, participating by assignment.
SAM NUCHIA, Justice.
A jury convicted appellant, Sandra San Miguel, of driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04 (Vernon 2003). Appellant pleaded true to enhancements, and the trial court assessed punishment at 35 days in Harris County jail. Appellant raises two issues on appeal. First, appellant argues the prosecutor made comments during voir dire and closing argument that improperly lowered the State's burden of proof. Second, appellant asks this Court to abate for further fact findings on whether appellant understood the English instructions and warnings involved in her field-sobriety tests. We affirm.
Background
At approximately 1:45 a.m., Reynaldo Garcia was driving home when a car driven by appellant swerved in front of him. He followed appellant's car and saw her swerve back and forth and straddle lanes. Appellant drove approximately 45 miles per hour, then slowed to five miles per hour, and then sped up to 60 miles per hour. Garcia called 911, and Pasadena law enforcement officers stopped appellant. Officer Gary White noted appellant's eyes appeared red and watery and she smelled like alcohol. Appellant admitted to drinking two or three beers at a wedding. Officer White conducted horizontal gaze nystagmus, walk-and-turn, and leg-stand field-sobriety tests on appellant. He initially gave instructions in English, but switched to Spanish after appellant responded in Spanish. Appellant stated she understood and responded to the instructions given. Officer White took appellant into custody and provided written explanations of her rights regarding breathalyzer testing in both English and Spanish. He also played a video which reviewed those rights in Spanish. Appellant refused to give a breath sample and was charged with driving while intoxicated. Appellant filed a pretrial motion to suppress the tests, video, and statements surrounding the field-sobriety tests. In the motion, appellant argued she did not intelligently and voluntarily consent to the tests because she did not sufficiently understand English. The trial court overruled the motion and admitted the evidence stating appellant understood the instructions because she made appropriate responses and performed the tests. At trial, the prosecutor made the following statements during voir dire regarding the reasonable doubt standard: So what is [sic] beyond a reasonable doubt mean? There isn't an exact definition. Beyond a reasonable doubt is going to mean whatever it means to you; but it's not an impossible burden. It's met here in the courthouse every single day; and it doesn't mean beyond all doubt; it doesn't mean beyond a shadow of a doubt. It's kind of — one way to think of beyond a reasonable doubt is the kind of care and consideration you would give an important life decision, buying a house, something like that. Does that make sense to everybody?
Appellant did not object to these comments. During closing arguments, the prosecutor again referred to the State's burden of proof without objection by appellant. Now it's important that you remember that beyond a reasonable doubt does not mean beyond all doubt. It's important that you remember that beyond a reasonable doubt does not mean beyond a shadow of a doubt. This is the same burden that's met in this courthouse every day. The same burden that you have to prove for a speeding ticket. It's the same that you have to prove for capital murder. It's the same that you have to prove for a driving while intoxicated case. If you want to know if this burden is met by the State of Texas, all you have to do is look over there to that jail because there are people in that jail who are there because the State of Texas met their burden beyond a reasonable doubt.
Appellant raises two issues on appeal. First, the prosecutor's comments during voir dire and closing argument lowered the State's burden of proof and tainted her presumption of innocence. Second, this Court should abate to the trial court for further fact findings on whether appellant understood the English instructions and warnings surrounding her field-sobriety tests. Diminished Burden of Proof
In her first issue, appellant argues the prosecutor improperly described reasonable doubt, diminished the State's burden of proof, and tainted her presumption of innocence. A. Preservation of Error
Ordinarily, to preserve an error for appellate review, the complaining party must make a "timely, request, objection, or motion." TEX. R. APP. P. 33.1(a)(1); see Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999) (holding that appellant waived complaint about trial court's explanation of reasonable-doubt standard during voir dire by failing to renew objection when trial court repeated explanation); see Espinosa v. State, 194 S.W.3d 703, 708 (Tex. App.-Houston [14th Dist.] 2006, no pet.) ("When appellant complains about an improper remark by the prosecutor during voir dire, appellant must object when the remark is made."); see Moore v. State, 907 S.W.2d 918, 923 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd) (holding that appellant waived complaint about trial court's comment during voir dire about weight of evidence); Meadows v. State, Nos. 01-09-00443-CR, 01-09-00444-CR, 2010 WL 2874199, at *3-4 (Tex. App.-Houston [1st Dist.] July 21, 2010, pet. filed) (mem. op., not designated for publication) (holding appellant waived complaint regarding comments by trial court and prosecutor during voir dire by not objecting). Appellant did not object to the prosecutor's comments during voir dire or closing argument. She has waived her complaint on appeal unless the alleged error was a fundamental error affecting substantial rights, in which case no objection is necessary to preserve error. See TEX. R. APP. P. 33.1(a)(1); see also TEX. R. EVID. 103(d). B. Analysis
Appellant argues the prosecutor's comments constitute fundamental error because they tainted her presumption of innocence. She relies on Blue v. State, 41 S.W.3d 129, 130 (Tex. Crim. App. 2000) (plurality op.), in which a trial judge apologized during voir dire for the delay while the defendant considered a plea bargain and expressed a preference that the defendant plead guilty. Id. The Texas Court of Criminal Appeals held this was fundamental error because the judge's comments tainted the defendant's presumption of innocence and error was preserved without an objection. Id. at 132-33. The facts in Blue are distinguishable. The trial judge in Blue directly addressed the guilt of the defendant. Id. at 130. The prosecutor here made an analogy to an important life decision, pointed to the people in jail to show the State can meet its burden, and stated, "Beyond a reasonable doubt is going to mean whatever it means to you." This Court has considered similar comments made by judges and prosecutors during voir dire and found no taint to the presumption of innocence and no fundamental error. See Marshall v. State, 312 S.W.3d 741, 743, 745 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd) (holding judge's comment that "Basically I guess the Legislature figures everybody is reasonable and they would know a reasonable doubt when they see it" was not fundamental error); Meadows, 2010 WL 2874199, at *3, 5, 6 (holding prosecutor stating, "It's not beyond a shadow of a doubt . . . we often times equate it to common sense. Use your common sense," was not fundamental error). Here, defense counsel failed to object to the prosecutor's statements concerning reasonable doubt. The error complained of does not reach the severity of the trial judge's comments in Blue so as to be fundamental, so an objection was required to preserve the issue on appeal. See Blue, 41 S.W.3d at 132; Moore, 907 S.W.2d at 921-22. We overrule appellant's first issue. Abatement for Voluntariness Findings
Appellant's second issue asserts, "The appeal should be abated for a determination of whether the appellant sufficiently understood English." Appellant argues Texas Code of Criminal Procedure article 38.22, section 6 required the trial judge to make an independent finding as to the voluntariness of her statements, because she did not sufficiently understand English. However, appellant points to no statements in the record which she claims were not voluntary. In fact, she points to no statements at all. Accordingly no fact findings were required. We overrule appellant's second issue. Conclusion
We affirm the judgment of the trial court.