
Opinion to issue: October 22, 2009











In The
Court of Appeals
For The
First District of Texas






NO. 01-08-00734-CR






umekki marshall, Appellant

V.

THE STATE OF TEXAS, Appellee






On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1136263






opinion
Appellant, Umekki Marshall, was charged by indictment with a single count
of theft under $1,500, elevated to a state jail felony by two earlier theft convictions,
and then enhanced to third-degree-felony punishment by two prior state jail felony
convictions.
  After a jury trial, appellant was convicted of state jail felony theft. 
During the punishment phase of the trial, the jury found the enhancement
paragraphs to be true and assessed appellant’s punishment at six and one-half years
imprisonment.  In her sole point of error, Marshall contends that the trial court
violated her constitutional right to due process of law by giving the venire panel a
flawed definition of “reasonable doubt” that “created the risk that one or more
members of the jury would impose a lower burden” than what is required.  We
affirm.
Background
          A loss-prevention officer at a Wal-Mart in Spring, Texas, observed Marshall
and her two juvenile companions removing hangers from a shopping cart full of
clothing.  After Marshall placed the garments in used shopping bags, the trio parted
ways.  Trained to follow the merchandise, the loss-prevention officer followed the
juveniles and the clothing to the front of the store while Marshall headed off in
another direction.  Marshall’s juvenile companions pushed the cart toward the exit,
making no effort to pay for the clothes in the shopping bags.  At that point, the
loss-prevention officer detained the juveniles and took them to an on-site security
office for questioning. After an investigation by the officer and a Harris County
Sheriff’s deputy, Marshall was arrested and charged with state felony theft of less
than $1,500.  She pleaded not guilty to the charge and proceeded to trial.
During voir dire, the trial court explained the State’s burden of proof to
prospective jurors as follows:
All right.  Let’s talk then about this burden of proof the State
has, this burden of proving the defendant’s guilt beyond a
reasonable doubt.  That burden is set out by the Legislature.  It’s
the same in every single criminal case, whether it’s a driving
while intoxicated or whether it’s capital murder.  State has to
prove somebody’s guilty beyond a reasonable doubt.
      Now, the Legislature’s told us that’s what the standard is that
the State has to meet.  The only real difficulty for everybody is
that the Legislature has not given me a definition that I can give
to you.  So, when you get the Court’s charge, there’s going to be
a lot of definitions in it.  There just won’t be one of beyond a
reasonable doubt.
      Basically I guess the Legislature figures everybody is
reasonable and they would know a reasonable doubt when they
see it.  So, what the Legislature has done is they told us what
beyond a reasonable doubt is not.  It doesn’t mean the State has
to prove the defendant’s guilt beyond all possible doubt or
without any doubt in your mind or 100 percent sure.  Because if
you think about it, the only way that you’d ever be convinced
without a doubt in your mind or 100 percent sure is if you saw
the offense being committed, you saw it with your own two eyes
or you saw it on videotape, right?  That’s the only way you could
be absolutely positive.
      And you know that if you saw the offense being committed,
you’d be out in this hallway waiting to come in here and testify,
right?  Not sitting in here on these hard benches.
 
(Emphasis added.)
Marshall’s trial counsel did not object to the trial court’s description of
“reasonable doubt” at the time it was given or any time thereafter.  Defense counsel
did make his own statements regarding reasonable doubt during voir dire which
tracked the portions of the court statements now being complained of on appeal. 
Counsel instructed prospective jurors that “[r]easonable doubt…is whatever, in
your mind, ultimately you believe it to be with some guidance and I can give you
just a little guidance but not a definition.”  Counsel later committed jury members
to consider the evidence and apply common sense, “based upon what [they]
believe in [their] mind is a reasonable doubt.”  Defense counsel did not request that
a definition of “proof beyond a reasonable doubt” be included in the jury charge. 
At the conclusion of the jury trial, Marshall was convicted and assessed
punishment of six and one-half years imprisonment.
Discussion
In her sole point of error, Marshall contends that the “trial court erroneously
explained the State’s burden of proof by telling prospective jurors that, in effect,
they would know it when they see it.”  According to Marshall “[t]hat
standard…created the risk that one or more members of the jury would impose a
lower burden than the Constitution requires.”
As a general rule, to preserve an error for appellate review, the complaining
party is required to make a “timely, request, objection, or motion.”  Tex. R. App. P.
33.1(a)(1).  This requirement applies to comments made by the trial court during
voir dire.  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); 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 on weight of evidence during voir dire).
Marshall acknowledges that she did not object to the court’s comments
during voir dire, but argues that no objection was necessary to preserve her
complaint, relying upon Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000)
(plurality op.).  The criminal court of appeals in Blue held that a trial judge’s
unobjected-to comments, which tainted the presumption of innocence, amounted to
fundamental error and, therefore, no objection was necessary to preserve the
complaint for appellate review.  Marshall argues that we should reach the same
conclusion here because this case involves a judicial comment made during voir
dire that “invite[d] the jury’s application of a constitutionally inadequate burden of
proof”, and “burden of proof is really just the opposite side of the same coin as the
presumption of innocence.”
We note that Blue is a plurality opinion and thus, does not constitute binding
precedent.  See Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex. Crim. App. 1999).
However, even if Blue were binding, the present case is distinguishable from Blue. 
In Blue, at the beginning of the jury-selection process, the trial judge apologized to
the prospective jurors for a long wait, stating:
[This case], which we are going on, is a situation where the
attorney has been speaking to his client about what does he want
to do. And when you are on the button like these cases, it’s a
question.  Frankly, an offer has been made by the State or do I go
to trial.  And he has been back and forth so I finally told him I
had enough of that, we are going to trial.  You have been sitting
out here and this is holding up my docket and I can’t get anything
done until we know if we are going to trial or not.
 
Frankly, obviously, I prefer the defendant to plead because it
gives us more time to get things done and I’m sure not going to
come out here and sit.  Sorry, the case went away and we were all
trying to work toward that and save you time and cost of time,
which you have been sitting here and I apologize about that. I
told the defendant that.  Like I said, I have enough of this and
going to trial.
 
Blue, 41 S.W.3d at 130. 
The plurality in Blue found that the trial judge’s comments regarding the
defendant’s failure to accept a plea bargain “tainted [defendant’s] presumption of
innocence in front of the venire” and therefore amounted to “fundamental error of
constitutional dimension and required no objection.”  See Blue, 41 S.W.3d at 132. 
The trial court’s comments in this case, however, are not of that nature.  Here, the
trial court simply explained the existing law with regard to reasonable doubt.  See
Rogers v. State, 795 S.W.2d 300, 306 (Tex. App.—Houston [1st Dist.] 1990, pet.
ref’d) (holding that trial court’s comment that “the bottom line is going to be what
beyond a reasonable doubt is to you” was not error because court was merely
telling jurors to use their common sense); Cade v. State, 795 S.W.2d 43, 45 (Tex.
App.—Houston [1st Dist.] 1990, pet. ref’d) (concluding that trial court’s comment
that reasonable doubt test might be satisfied “somewhere between fifty and one-hundred” on scale of one to 100 was not fundamental error because it did not
“cause[] the jury to misunderstand the reasonable doubt standard”).  Although the
trial court’s comments about the “reasonable doubt” standard are amorphous and
somewhat confusing, they neither tainted the presumption of innocence nor did
they vitiate the impartiality of the jury.  See Blue, 41 S.W.3d at 132; see also
Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (holding that trial
court’s comments did not constitute fundamental error because they did not rise “to
such a level as to bear on the presumption of innocence or vitiate the impartiality
of the jury”).  Accordingly, the court’s comments do not rise to the level of
fundamental error of constitutional dimension and, thus, timely and specific
objections were required to preserve Marshall’s complaint for appeal.  See Blue, 41
S.W.3d at 132; Jasper, 61 S.W.3d at 421; see also, e.g., Zachery v. State, No. 14-07-01050-CR, 2009 WL 136915, at *2 n.2 (Tex. App.—Houston [14th Dist.] Jan.
20, 2009, no pet.) (mem. op., not designated for publication) (trial court told
prospective jurors that “[y]ou will know when you’re convinced that someone has
violated the law and the State has proven each and every element beyond a
reasonable doubt. You will know it. . . .”; reviewing court held that, under
reasoning of Blue plurality, trial court’s comment during voir dire did not
constitute fundamental error that would obviate need to make contemporaneous
objection).  Because she failed to object, we hold that appellant has failed to
preserve this issue for our review.
  We overrule appellant’s sole point of error.
CONCLUSION
We affirm the judgment of the trial court.






                                                             Jim Sharp
                                                             Justice 
 
Panel consists of Justices Jennings, Higley, and Sharp.
Publish.  Tex. R. App. P. 47.2(b).
Justice Sharp, concurring.
