Opinion
No. 05-14-01196-CR
01-05-2016
RAMON M. PEREZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas
Trial Court Cause No. F08-60337-I
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Myers
Opinion by Justice Myers
Appellant Ramon M. Perez was convicted by a jury of aggravated sexual assault of a child under the age of fourteen and sentenced to fifteen years in prison. In two issues, he argues the trial court fundamentally erred when it discussed the State's burden of proof during voir dire and when it permitted the complainant's mother to testify that she believed her daughter "a hundred percent." We affirm.
DISCUSSION
In his first issue, appellant contends the trial court fundamentally erred when it stated to the jury during voir dire that, although it could not define the term "reasonable doubt," "[i]t certainly is not proof beyond all doubt." Appellant argues this comment diminished his "due process right to the reasonable doubt standard" and tainted the presumption of innocence.
During voir dire, the trial court made the following statements:
The burden of proof is beyond a reasonable doubt. The burden of proof will rest on the State. It will never shift to [appellant] and Mr. Jamison. The State of Texas brought the charge, the State of Texas must prove the charge. The proof must be beyond a reasonable doubt.
Now, I cannot define beyond a reasonable doubt for you. That's been the standard in Texas for over 150 years and many juries have had their trial and have either found somebody guilty or not guilty based on their understanding of proof beyond a reasonable doubt.
It certainly is not proof beyond all doubt. In order to be convinced 100 percent or beyond all doubt, you would have to be a witness. If you were a witness or a participant in the offense, then you certainly can't be on the jury. So there is no expectation of 100 percent proof. It's proof beyond a reasonable doubt.
Basically, that may mean a little bit of difference—different things to each one of you. Basically, it means that if there's—to me, anyway, it means that if there's no other reasonable explanation other than the crime occurred and the defendant did it, then maybe that's—reasonable doubt has been met and surpassed.
If at the end of the case you still aren't sure, you know, like, maybe it was someone else—you don't speculate about it being someone else. That would have to be based on some kind of testimony or evidence. But if you're not convinced, then, of course, the only verdict would be not guilty because that presumption of innocence that we started with has not been overcome by the State.
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) (defendant waived complaint about trial court's explanation of reasonable doubt standard during voir dire by failing to renew objection when trial court repeated explanation); Marshall v. State, 312 S.W.3d 741, 743 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (to preserve error for review one must object to trial court's voir dire comments). Appellant acknowledges that he did not object to the above comments. However, he argues that the trial court's comments, in particular the statement that reasonable doubt "certainly is not proof beyond all doubt," constituted an impermissible definition of the term reasonable doubt, tainted the presumption of innocence, and amounted to fundamental error that could be raised for the first time on appeal. Fundamental error occurs when a "trial [court's] comments r[i]se to such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury." Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001); Thomas v. State, No. 01-14-00332-CR, 2015 WL 5076292, at *11 (Tex. App.—Houston [1st Dist.] Aug. 27, 2015, no pet.) (not designated for publication).
In arguing he was not required to object to obtain this Court's review of the challenged comments, appellant relies on various cases, most of which did not involve allegedly improper comments by a trial court during jury selection. See, e.g, Fuller v. State, 363 S.W.3d 583, 585 (Tex. Crim. App. 2012) (trial court refused defense request that it be permitted to ask members of venire whether they understood that the beyond a reasonable doubt standard of proof constituted a level of confidence under the law that was higher than both preponderance of the evidence and clear and convincing standards); Sells v. State, 121 S.W.3d 748, 755 (Tex. Crim. App. 2003) (trial court refused to allow defense to ask questions during voir dire regarding parole law); Billy v. State, 77 S.W.3d 427, 430-31 (Tex. App.—Dallas 2002, pet. ref'd) (trial court sustained State's objection when defense counsel attempted to explain reasonable doubt to jury by incorporating definition of "hesitancy" from disavowed Geesa decision). The case cited by appellant that did involve such comments, Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000), is a plurality opinion with no precedential value. Johnson v. State, Nos. 05-14-00791-CR, 05-14-00792-CR, & 05-14-00793-CR, 2015 WL 4600472, at *2 (Tex. App.—Dallas July 31, 2015, no pet.) (mem. op., not designated for publication) (citing Unkart v. State, 400 S.W.3d 94, 100-01 (Tex. Crim. App. 2013)). But even if we were to follow the plurality opinion in Blue, it is important to remember that the comments in this case are quite different from those in Blue. In Blue, the trial court apologized to the venire for a delay in beginning jury selection, and explained that the State had offered the defendant a plea agreement, but the defendant "ha[d] been back and forth" in deciding whether to accept the offer. Blue, 41 S.W.3d at 130. The trial court also stated, "Frankly, obviously, I prefer the defendant to plead" but because the defendant was taking too long to reach a decision, the trial court decided to begin the trial. Id. The defendant in Blue did not object to the statements in the trial court, but he argued on appeal that the statements tainted the presumption of innocence and, accordingly, constituted fundamental error that could be raised for the first time on appeal. Id. A plurality of the Court of Criminal Appeals agreed. See id. at 131. In Blue, therefore, the trial court's remarks "reasonably could be interpreted as a predetermination of [the defendant's] guilt, thus implicating the right to an impartial trial court." Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd) (citing Blue, 41 S.W.3d at 135-39 (Keasler, J., concurring)).
In this case, by contrast, the challenged comments did not taint the presumption of innocence or vitiate the impartiality of the jury. Other courts have concluded that comments similar to those made here did not rise to the level of fundamental error. See Jasper, 61 S.W.3d at 421 (stating that even if Texas Court of Criminal Appeals were bound to follow Blue plurality opinion, it would not apply to a case in which "[n]one of the trial judge's comments rose to such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury."); Wilkerson v. State, 347 S.W.3d 720, 726 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) (so holding when a trial court defined reasonable doubt as "the same kind of doubt in making any kind of decision in our lives" and commented that "[t]he only way you can prove something beyond a shadow of a doubt would be if all 12 jurors were eyewitnesses to the scene."); Mohammed v. State, 331 S.W.3d 187, 194 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (comments on reasonable doubt that "[i]t's not 100 percent" and that "the law does not require that you be convinced 100 percent" did not rise to the level of fundamental error); McLean v. State, 312 S.W.3d 912, 915-18 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (holding trial court's voir dire comments, which included "the permissibility of convicting a defendant based on a single witness," not fundamental error); Marshall, 312 S.W.3d at 742-45 (holding trial court's voir dire comments, "the Legislature has not given me a definition" of reasonable doubt and "the Legislature figures everybody is reasonable and they would know a reasonable doubt when they see it," not fundamental error (internal quotations omitted)); Meadows v. State, No. 01-09-00443-CR, 2010 WL 2874199, at *6 (Tex. App.—Houston [1st Dist.] July 22, 2010, pet. ref'd) (mem. op., not designated for publication) (holding that trial court did not commit fundamental error in stating, among other things, that reasonable doubt was "[y]ou know, kind of like obscenity, you know it when you see it, that kind of thing," and that "it is a very high standard but it's not 100 percent proof," because statements did not convey opinion as to defendant's guilt or innocence). Appellant has not cited a single case where comments by a trial court similar to those made here were held to constitute fundamental error, nor have we found such a case. We conclude the trial court's comments did not rise to the level of fundamental constitutional error, and that appellant, hence, waived further complaint about those statements by failing to object to them in the trial court. We overrule appellant's first issue.
In his second issue, appellant contends the trial court fundamentally erred by allowing the complainant's mother to testify that she believed her daughter "a hundred percent." During rebuttal, the State called Rosita Arriaga, appellant's sister and the complainant's mother. Arriaga provided the following testimony:
Q. [PROSECUTOR:] And you really didn't want to have to testify; right?
A. [ARRIAGA:] No.
Q. Why not? Tell the jury why.
A. It's just hard.
Q. Why is it so hard?
A. Because the thing is, I believe my daughter a hundred percent. I do.
Q. About what?
A. Of what happened, of what happened that day.
Q. Okay. But what makes it so hard for you to come and testify?
A. Because that's my brother.
Q. You've always loved him?
A. Yeah, I always have.
Q. Do you still love him?
A. I don't know.
Appellant did not object to this testimony, but he argues that admission of the statement "I believe my daughter a hundred percent" constituted fundamental error that could be considered by us even without objection because it affected appellant's right to a fair trial and to due process of law. Appellant asserts the State brought in a witness "whose sole purpose was to bolster the complainant's testimony," thereby inviting "this potential violation of the basic rules of evidence," and that the testimony was harmful because "[t]he case here basically involved the testimony of two people—the complainant and [a]ppellant."
"An appellate court may, in rare cases, 'tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the trial court.'" Boler v. State, 177 S.W.3d 366, 373 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (quoting TEX. R. EVID. 103)). The Texas Court of Criminal Appeals has stated that the requirement of a timely and specific objection does not apply "to two relatively small categories of errors: violations of 'rights which are waivable only' and denials of 'absolute systemic requirements.'" Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (quoting Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)). Waivable-only rights, or "rights of litigants which must be implemented by the system unless expressly waived," include the right to assistance of counsel and the right to trial by jury. Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004); Saldano, 70 S.W.3d at 888. Absolute, systemic requirements, or "a law that a trial court has a duty to follow even if the parties wish otherwise," include jurisdiction of the person, jurisdiction of the subject matter, and a penal statute's compliance with the separation of powers section of the state constitution. Mendez, 138 S.W.3d at 340; Saldano, 70 S.W.3d at 888. "Such errors may be raised for the first time on appeal." Saldano, 70 S.W.3d at 888. On the other hand, "forfeitable" rights are the "rights of litigants which are to be implemented upon request." Mendez, 138 S.W.3d at 340-41. These include most of "the myriad evidentiary and procedural rules" that comprise our system. See id. at 340 (quoting Marin, 851 S.W.2d at 278).
The complained-of testimony here does not fall into either of the categories that would suspend the application of rule 33.1, which requires a timely and specific objection, motion, or complaint. See Mendez, 138 S.W.3d at 340-41. Indeed, Texas courts have regularly held that complaints regarding the improper admission of evidence, such as an appellant's custodial statement, must be objected to at trial to be preserved for consideration on appeal. See, e.g., Saldano, 70 S.W.3d at 890 ("Because the appellant did not object to the admission of the testimony of which he now complains, the question he seeks to present has not been preserved for review on appeal."); Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000) ("To preserve error regarding the admission of evidence, a defendant must lodge a timely and specific objection . . . to give to the trial court . . . the opportunity to correct the error."); Mbugua v. State, 312 S.W.3d 657, 666-67 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (appellant did not preserve his complaint regarding admissibility of his custodial statement because complaint on appeal did not comport with grounds argued in motion to suppress). If a defendant fails to object at trial to the admission of evidence, he fails to preserve his complaint about that evidence for appellate review, even if the erroneous admission implicates a constitutional right. See, e.g., Saldano, 70 S.W.3d at 889; Zill v. State, 355 S.W.3d 778, 789 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Thus, we conclude appellant failed to preserve his second issue for appellate review. See TEX. R. APP. P. 33.1(a). We overrule appellant's second issue.
We affirm the trial court's judgments.
/ Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
141196F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F08-60337-I.
Opinion delivered by Justice Myers. Justices Bridges and Francis participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
See Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991), overruled by Paulson v. State, 28 S.W.3d 570, 571-72 (Tex. Crim. App. 2000).