                                  NUMBER 13-11-00466-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

DELIA ANN RAY,                                                                             Appellant,

                                                    v.

THE STATE OF TEXAS,                                                                         Appellee.


                       On appeal from the 272nd District Court
                             of Brazos County, Texas.


                             MEMORANDUM OPINION1
              Before Justices Rodriguez, Benavides, and Perkes
                 Memorandum Opinion by Justice Rodriguez
        Appellant Delia Ann Ray challenges her conviction for assault on a public servant.

See TEX. PENAL CODE ANN. § 22.01(b)(1) (West 2011). After a jury found her guilty, Ray

        1
          This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
agreed to punishment of ten years in the Texas Department of Criminal Justice, probated

for three years, and a fine of $500.00, in lieu of a punishment hearing. The trial court

assessed punishment, as agreed. By two issues, Ray complains of (1) disproportionate

sentencing; and (2) the trial court's denial of her challenge for cause. We affirm.

                                 I. DISPROPORTIONATE SENTENCE2

        By her first issue, Ray contends that her felony conviction and subsequent

punishment for assault on a public servant are disproportionate with the crime. The

State contends the issue was not preserved for our review because Ray did not raise a

proper objection in the trial court. We agree.

        The Eighth Amendment of the United States Constitution provides that

"[e]xcessive bail shall not be required, nor excessive fines, nor cruel and unusual

punishment inflicted." See U.S. CONST. amend. VIII. This right can be waived by a

"failure to object." Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Noland

v. State, 264 S.W.3d 144, 151-52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd)

(concluding that by failing to object, the appellant did not preserve an argument that the

sentence was grossly disproportionate to offense).                    To preserve a complaint of

disproportionate sentencing, the criminal defendant must make a timely, specific

objection to the trial court or raise the issue in a motion for new trial. Noland, 264 S.W.3d

at 151-52; Trevino v. State, 174 S.W.3d 925, 927-28 (Tex. App.—Corpus Christi 2005,

pet. ref'd); see TEX. R. APP. P. 33.1; Ponce v. State, 89 S.W.3d 110, 114-15 (Tex.


        2
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                     2
App.—Corpus Christi 2002, no pet.) (holding that Ponce failed to preserve his claims

involving illegal sentences because he did not raise an objection in the trial court);

Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.—Corpus Christi 1989, pet. ref'd)

(holding that Quintana waived his cruel and unusual punishment argument by failing to

object).

       Here, Ray did not object when the trial court pronounced her sentence, and she

did not raise the issue in a motion for new trial. Therefore, Ray has not preserved this

issue for our review. See Noland, 284 S.W.3d 151-52; see also TEX. R. APP. P. 33.1.

Moreover, even had Ray preserved error, a punishment falling within the limits prescribed

by a valid statute, as in this case, is not usually excessive, cruel, or unusual.3 See

Trevino, 174 S.W.3d at 928. We overrule Ray's first issue.

                                    II. CHALLENGE FOR CAUSE

       By her second issue, Ray asserts that the trial court abused its discretion when it

denied her challenge for cause on Juror Number 8. Ray objected on the basis that Juror

Number 8 "stated that there are some cases where she would actually change the

[reasonable-doubt] standard of proof to a lower standard than what the law and

Constitution would require."          After explaining that it thought "[Juror Number 8]

equivocated; but when forced to decide between the two equivocations, she chose to

follow the law and she would apply the right standard," the trial court overruled Ray's

challenge. Ray contends that "[i]t is clear from a review of the record that the denial of
       3
           Ray was convicted of assault on a public servant, a third-degree felony which carries a
punishment range of two to ten years and a fine up to $10,000.00. See TEX. PENAL CODE ANN. §§ 12.34,
22.01(b)(1) (West 2011). After the jury found Ray guilty, she agreed with the State on her punishment of
ten years, probated to three, and a $500.00 fine. This punishment is within the range prescribed by the
legislature for a third-degree felony. See id. §§ 12.34, 22.01(b)(1).

                                                   3
the challenge for cause was improper." We disagree.

A. Standard of Review

       The standard of review when a trial court overrules a challenge for cause is abuse

of discretion. Smith v. State, 297 S.W.3d 260, 268 (Tex. Crim. App. 2009). If a juror

states that she believes she can set aside any influences and biases she may have and

the trial court overrules a challenge for cause, its decision will be reviewed in light of all of

the answers the prospective juror gave. Anderson v. State, 633 S.W.2d 851, 854 (Tex.

Crim. App. 1982). The reviewing court should afford great deference to the trial court's

decision because the trial judge is present to observe the demeanor of prospective jurors

and to listen to the tenor of the prospective juror's voice. Patrick v. State, 906 S.W.2d

481, 488 (Tex. Crim. App. 1995) (en banc). Particular deference is given when the

prospective juror's answers are vacillating, unclear, or contradictory. Smith, 297 S.W.3d

at 368; Patrick, 906 S.W.2d at 488.

B. Discussion

       Ray's counsel, the Prosecutor, and the trial court questioned Juror Number 8

regarding her opinion about the reasonable-doubt standard.                At the end of the

questioning, Juror Number 8 affirmed that she believed she could set aside any

influences and biases when she assured the trial court that she could "definitely" follow

the law "according to the definitions given." Because of this affirmation and because the

trial court overruled Ray's challenge for cause, we review the trial court's decision in light

of all answers given by Juror Number 8 to determine if the evidence is sufficient to support

the court's ruling on this challenge. See Anderson, 633 S.W.2d at 854.


                                               4
       In response to questions asked by Ray's counsel, Juror Number 8 answered that

she believed that the reasonable-doubt standard could be the wrong standard to apply in

some criminal cases, depending on the situation and occurrence; that the standard was

going to be too high in some cases. She stated that "[t]here are times when you read

about different cases and different things and you are going, "How did they get this? And

you've seen this other person get something different.              Sometimes it's more and

sometimes it's less." Juror Number 8 continued,

               There are times where if it's not a point that's blankly here it is, here is
       the facts, it's real cut-and-dry. I hope you can take that. But where it's
       [sic] cases where you are having [sic] to put in your own judgment, your own
       background, I think sometimes it can be wavered [sic] either way.

Juror Number 8 agreed that she did not know whether this standard should be applied in

this case because she had "no clue as to what is going on other than just what you have

said and just knowing some people started talking about drinking," but that it was

conceivable that she might feel as if this was a case where that standard was not

appropriate.

       Later, Juror Number 8 appeared to contradict her earlier answers when she clearly

commented, in response to the prosecutor's questions, that she understood that the State

had the burden to prove each element of the crime beyond a reasonable doubt, and if it

did prove those elements beyond a reasonable doubt, she would return a guilty verdict.

Juror Number 8 also gave an ambiguous answer when the State asked would she find the

defendant not guilty if they did not prove each element. To that question, Juror Number

8 stated, "[i]f possible, if I was unsure, I would hope I would have an opportunity to ask.

But if it wasn't presented."

                                                5
       Finally, to the trial court's questions, Juror Number 8 responded that she

understood that the State had the burden of proof in all criminal cases to prove it beyond

a reasonable doubt and how she defined reasonable doubt was up to her. When the trial

court questioned Ray regarding whether she had said that in some cases the standard of

beyond a reasonable doubt is too high and that she would apply a lower standard, Juror

Number 8 explained that she had said that because she had "never done this before so

I'm taking all this brand new . . . as a learning process. So I'm hoping to learn . . . from

her standpoint and their standpoint and putting them together and coming up with the

best idea conceivable.    I don't know what you would call it."       At the end of Juror

Number 8's voir dire, she gave the following answers:

       The Court:           . . . . But I'm telling you there's a difference between
                            you going by your definition of beyond a reasonable
                            doubt, which may be lower than somebody else's
                            definition of those terms.

       Juror Number 8:      Correct.

       The Court:           There is a difference between that and lowering the
                            burden of proof itself and saying that standard I'm not
                            going to go to in this case. You follow the distinction?

       Juror Number 8:      The definitions, yes, I can follow those for sure. Now,
                            it's kind of one of those circumstances where it's got to
                            be presented.

       The Court:           So can you assure me then without question that you
                            would follow the law and the standard that the State
                            must prove it beyond a reasonable doubt and that you
                            would not lower that standard?

       Juror Number 8:      Definitely according to the definitions given by.




                                             6
The trial court overruled Ray's challenge for cause and subsequently denied Ray's

request for an additional peremptory challenge for Juror Number 8.4

        In light of all of the answers given by Juror Number 8, we conclude, as did the trial

court, that Juror Number 8's answers, taken as a whole, were equivocal—unclear, vague,

or ambiguous. See Smith, 297 S.W.3d at 368; King, 29 S.W.3d at 568; Patrick, 906

S.W.2d at 488. We also conclude that Juror Number 8's answers were often vacillating

and even contradictory. See Smith, 297 S.W.3d at 368; King, 29 S.W.3d at 568; Patrick,

906 S.W.2d at 488. Therefore, we must give particular deference to the trial court's

decision because the trial judge was present to observe Juror Number 8's demeanor and

to listen to the tenor of her voice. See Patrick, 906 S.W.2d at 488. In so doing, we

conclude that the trial court did not abuse its discretion when it denied Ray's challenge for

cause on Juror Number 8. We overruled Ray's second issue.

                                          III. CONCLUSION

        We affirm the judgment of the trial court.



                                                                         NELDA V. RODRIGUEZ
                                                                         Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
12th day of July, 2012.



        4
          It is undisputed that Ray exhausted her peremptory challenges, requested an additional
challenge, was denied that additional peremptory challenge, and then objected to the seating of the juror,
thereby preserving any error for review on appeal. See Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim.
App. 2002) (citing Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996)).
                                                    7
