                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-11-00383-CR

WILLIE CONTRERAS,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 19th District Court
                           McLennan County, Texas
                          Trial Court No. 2011-1337-C1


                                   OPINION


      Appellant, Willie Contreras, appeals from his conviction for murder, a first-

degree felony. See TEX. PENAL CODE ANN. § 19.02(b)-(c) (West 2011). In one issue,

Contreras contends that the trial court erred by prohibiting defense counsel “from

making a comparison between the different burdens of proof established in Texas

jurisprudence.” Because we find the complained-of error to be harmless, we affirm.
                                    I.     BACKGROUND

        In this case, Contreras was charged by indictment with the murder of seventeen-

year-old Nathan Romo. See id. The trial in this matter commenced on September 27,

2011. During voir dire, appellant’s counsel requested that he be allowed to compare the

civil preponderance-of-the-evidence standard with the criminal beyond-a-reasonable-

doubt standard to ensure that jurors understood the distinctions between the standards.

The trial court denied appellant’s request to make such a comparison.

        At the conclusion of the evidence, the jury convicted Contreras of the charged

offense and sentenced him to life imprisonment in the Institutional Division of the

Texas Department of Criminal Justice. This appeal ensued.

                      II.     VOIR DIRE AND THE STANDARDS OF PROOF

        In his sole issue on appeal, Contreras complains that the trial court erred in

prohibiting him from contrasting the different standards of proof during voir dire.

A.      Appellant’s Request

        During voir dire, the following colloquy transpired:

        [Defense counsel]: Yes, Your Honor. My second request, Your Honor, I
                           know the Court has a policy of not permitting voir
                           dire on the different burdens of proof, civil,
                           preponderance, and criminal, beyond a reasonable
                           doubt and drawing distinctions.

        THE COURT:          The standards of proof.

        [Defense counsel]: The standards of proof. I would point out to the
                           Court that there are 10 jurors in the strike zone this
                           morning who have prior civil jury service, and I
                           would want to question them to be sure that they
                           understand that the burden of proof that they applied

Contreras v. State                                                                    Page 2
                                 in that civil trial is not the same as beyond a
                                 reasonable doubt. I believe the Court’s instructions
                                 generally are, beyond a reasonable doubt is not
                                 beyond all doubt, that sort of thing, and it’s kind of
                                 up to individual jurors to decide for themselves.

                ....

        [Defense counsel]: But I would request that I be permitted to talk to these
                           particular jurors, and I’ll identify them as 1, 3, 9, 12,
                           13, 20, 26, 27, 29, and 31, who are within the strike
                           zone, and then Jurors 35, 39, 44, and 48, who are out
                           of the strike zone, who have all indicated prior civil
                           jury service, and we would like to question them to be
                           sure they understand the distinction. If the Court
                           chooses not to permit that, we would argue that that
                           would deny our right to exercise our peremptory
                           challenges intelligently.[1]

        THE COURT:               What is it you wish to ask them? What inclination do
                                 you wish to give?

        [Defense counsel]: I would ask them—remind them that the standard in
                           the trials that they served in was a preponderance of
                           the evidence and ask them if they understand that the
                           burden in this case is a greater burden.

        THE COURT:               And what do you mean by “a greater burden”?

        [Defense counsel]: Judge, my understanding of the standard of proof is
                           that beyond a reasonable doubt requires more than
                           just a 51 percent proof.

                ....

        THE COURT:               Because that’s not true. That’s simply not the case.
                                 There is no statute or case or rule that has ever said
                                 that this 51 percent—it requires 51 percent of the
                                 facts. . . .



        1The record reflects that, of the jurors listed by appellant’s counsel, only jurors 1, 9, 12, and 20
served on the jury in this case.

Contreras v. State                                                                                   Page 3
                ....

        THE COURT:          It does not require. Reasonable doubt as it is applied
                            in a criminal case does not require a greater amount
                            of evidence or a greater amount of proof, because you
                            may can [sic] argue [that it] requires a greater degree
                            of certainty in the mind of the juror, but if a juror is
                            able to listen to the evidence and apply whatever
                            standard or whatever definition they wish to give to
                            proof beyond a reasonable doubt, that’s adequate,
                            and there is no way to quantify, is there?

                ....

        THE COURT:          That’s the reason I don’t allow a comparison of those
                            standards, because it’s meaningless and, in fact, it’s
                            misleading, because one jury can hear a certain set of
                            facts and not be convinced by a preponderance of the
                            evidence that that standard was being used, and
                            another set of jurors or a juror might hear exactly
                            those same facts and be convinced beyond a
                            reasonable doubt on those same facts, because it’s not
                            determined by how many witnesses are called or how
                            much evidence is introduced. It’s simply an abstract
                            concept in the mind of the juror, and that’s the reason
                            I don’t allow that comparison, and I’m not going to in
                            this case.

        [Defense counsel]: I understand that, Judge. I still respectfully disagree,
                           but I understand your ruling.

        THE COURT:          Okay. Thank you. Anything else?

        [Defense counsel]: Nothing further, Your Honor.

B.      Applicable Law

        The trial court has broad discretion over the process of selecting a jury. Sells v.

State, 121 S.W.3d 748, 755 (Tex. Crim. App. 2003). We leave to the trial court’s discretion

the propriety of a particular question and will not disturb the trial court’s decision


Contreras v. State                                                                     Page 4
absent an abuse of discretion. Id. A trial court abuses its discretion when it prohibits a

proper question about a proper area of inquiry. Id. at 755-56. “A question is proper if it

seeks to discover a juror’s views on an issue applicable to the case.”                      Id. at 755.

“However, an otherwise proper question is impermissible if the question attempts to

commit the juror to a particular verdict based on particular facts.” Id. “In addition, a

trial judge may prohibit as improper a voir dire question that is so vague or broad in

nature as to constitute a global fishing expedition.” Id.

C.      Discussion

        Contreras was tried in September 2011, and in March 2012, the Texas Court of

Criminal Appeals decided Fuller v. State, 363 S.W.3d 583 (Tex. Crim. App. 2012). In

Fuller, the Court stated that the jury’s ability to apply the correct standard of proof

remains an issue in every criminal case. Id. at 587. The Court then held that inquiry

into whether a prospective juror understands that proof beyond a reasonable doubt

must at least constitute a more onerous standard of proof than preponderance of the

evidence and clear and convincing evidence is permissible.2 Id. (“[I]nquiry into a


       2 In Fuller, defense counsel made the following request, which is somewhat similar to the request

made in this case:

                Judge, I would request that I be allowed to ask each and every member of the
        venire panel if they understand that proof beyond a reasonable doubt is the highest
        burden that we have under the law, that it’s higher than clear and convincing evidence. I
        would like to explain to them that clear and convincing evidence is the type of burden
        that might be used when someone is committed to an involuntary health institution or
        when someone is trying to terminate someone’s parental rights.

                I would like to explain to them that it’s higher than—I probably would have
        started at the other end—but higher than the preponderance of the evidence, which is
        just over 50 percent and that’s the kind of burden that might be used in a civil lawsuit
        when someone is suing over money.


Contreras v. State                                                                                  Page 5
prospective juror’s understanding of what proof beyond a reasonable doubt means

constitutes a proper question regardless of whether the law specifically defines that

term.”) (emphasis in original). The Court further stated that it is appropriate to explain

the contrast among the various standards of proof. Id. at 588. Therefore, in light of

Fuller, we conclude that the trial court erred in refusing to allow defense counsel to

question prospective jurors about their understanding of the various standards of proof.

See id.; see also Dinkins v. State, 894 S.W.2d 330, 343-45 (Tex. Crim. App. 1995)

(concluding that the trial court abused its discretion in failing to permit appellant to ask

a prospective juror whether he could adhere to the definition of reasonable doubt that

was provided under the law at the time, but that the error was harmless).

        However, the denial of appropriate questioning during voir dire constitutes non-

constitutional error that is subject to harm analysis. See Fuller, 363 S.W.3d at 589; Rich v.

State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005); see also Easley v. State, No. 10-12-00018-

CR, 2012 Tex. App. LEXIS 7859, at *3 (Tex. App.—Waco Sept. 13, 2012, no pet. h.) (mem.

op., not designated for publication). A reviewing court should disregard any “error,

defect, irregularity, or variance that does not affect substantial rights” of the appellant.

TEX. R. APP. P. 44.2(b). A substantial right is affected “when the error has a substantial

and injurious effect or influence in determining the jury’s verdict.” Rich, 160 S.W.3d at

577. In conducting the harm analysis, we consider everything in the record, including

any testimony or physical evidence admitted for the jury’s consideration, the nature of

                I would like to ask them if they understand that proof beyond a reasonable
        doubt is the highest burden we have anywhere in our legal system.

Fuller v. State, 363 S.W.3d 583, 584 (Tex. Crim. App. 2012).

Contreras v. State                                                                           Page 6
the evidence supporting the verdict, the character of the alleged error and how it might

be considered in connection with other evidence in the case, the jury instructions, the

State’s theory and any defensive theories, closing arguments, voir dire, and whether the

State emphasized the error. Id.

        During voir dire, the trial court instructed the jury panel that, at all times, the

State has the burden of proof; that the State has to produce evidence; and that Contreras

did not have to produce evidence because he is presumed innocent. The trial court also

thoroughly discussed the beyond-a-reasonable-doubt standard of proof. And despite

not being allowed to compare the civil and criminal standards of proof, Contreras was

accorded the opportunity to elicit pertinent information regarding the standard of proof

to determine whether individual venire members could follow their oath and render a

verdict according to their own understanding of reasonable doubt.               Moreover,

Contreras was not prevented from challenging venire members based on their

individual views concerning what constitutes reasonable doubt, nor was he restricted in

the exercise of his peremptory strikes.

        Several witnesses testified at trial that Contreras was present at Guthrie Park on

the night of the incident; that he fired shots at the pickup truck in which Romo was

driving and several others were passengers; and that, as a result of those shots, Romo

was killed. Contreras admitted at trial that he fired shots that night, but he denied

intending to kill Romo. Nevertheless, the jury is entitled to judge the credibility of

witnesses and can choose to believe all, some, or none of the testimony presented by the

parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Contreras does

Contreras v. State                                                                   Page 7
not challenge the sufficiency of the evidence to support his conviction.          See, e.g.,

Anderson, 2012 Tex. App. LEXIS 6232, at *8.

        In addition, the charge instructed the jury that the State has the burden of proof

and must prove each element of the charged offense beyond a reasonable doubt. And

during closing arguments, defense counsel emphasized that the State had “failed to

prove beyond a reasonable doubt either that [appellant] intended to cause the death of

someone in that truck or that he knowingly caused the death of someone in that truck.”

And finally, we note that the error in denying questions comparing the standards of

proof did not shift the burden to the defense or lessen the State’s obligation to prove its

case beyond a reasonable doubt. See, e.g., Easley, 2012 Tex. App. LEXIS 7859, at **4-5

(citing Anderson v. State, No. 07-10-139-CR, 2012 Tex. App. LEXIS 6232, at **5-10 (Tex.

App.—Amarillo July 30, 2012, no pet.) (mem. op. on remand, not designated for

publication)).

        Based on the foregoing, we conclude that the trial court improperly limited

Contreras’s voir dire; however, the jury was properly and clearly instructed that the

State had the burden of proving guilt beyond a reasonable doubt. See, e.g., Anderson,

2012 Tex. App. LEXIS 6232, at *9. Accordingly, we find that the trial court’s improper

limiting of voir dire did not have a substantial and injurious effect or influence on the

jury’s verdict. See TEX. R. APP. P. 44.2(b); see also Easley, 2012 Tex. App. LEXIS 7859, at

*6; Anderson, 2012 Tex. App. LEXIS 6232, at *10. We overrule Contreras’s sole issue on

appeal.



Contreras v. State                                                                   Page 8
                                   III.   CONCLUSION

        Having overruled Contreras’s sole issue on appeal, we affirm the judgment of

the trial court.




                                               AL SCOGGINS
                                               Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 25, 2012
Publish
[CR25]




Contreras v. State                                                            Page 9
