                                      COURT OF APPEALS
                                   EIGHTH DISTRICT OF TEXAS
                                        EL PASO, TEXAS
 JOHN BROWN,                                        §
                                                                     No. 08-10-00057-CR
                     Appellant,                     §
                                                                        Appeal from the
 v.                                                 §
                                                                      205th District Court
 THE STATE OF TEXAS,                                §
                                                                   of El Paso County, Texas
                     Appellee.                      §
                                                                     (TC# 20080D06301)
                                                    §

                                             OPINION

          A jury convicted John Brown, Appellant, of aggravated assault with a deadly weapon and

assault involving family violence. Pursuant to an agreement with the State on punishment, Appellant

was sentenced to ten years’ imprisonment for the former offense and granted time served on the

latter. On appeal, Appellant faults the trial judge for interrupting his voir dire examination and

contends that the jury charge called for a non-unanimous verdict. For the following reasons, we

affirm.

                                           BACKGROUND

          As Appellant does not challenge the sufficiency of the evidence, only a brief recitation of the

facts is necessary. While stopped at a red light on November 27, 2008, Becky Brown, Appellant’s

wife, left the vehicle, and when she ran in front of it, Appellant accelerated the vehicle towards her.

When Becky jumped out of the way and ran, Appellant got out, grabbed her by her hair, and punched

her. Appellant then dragged Becky by the hair to the side of the road, punched her more times, and

then slammed her head on the ground. When those stopped at the intersection tried to intervene,

Appellant stopped his attack, returned to his vehicle, and drove away.
                                             VOIR DIRE

        In his first issue, Appellant contends that the trial court violated his right to a fair trial by

“constantly interrupting” his attorney’s voir dire examination and making improper comments to the

jury. Although Appellant did not object to the complained-of interjections when they occurred, at

the conclusion of voir dire, Appellant moved for a mistrial, claiming that the trial court “completely

sabotaged” his voir dire and “poisoned the jury panel for my questions.” However, Appellant did

not obtain a ruling on his motion, and the record does not reflect any response from the State or the

trial court. Thus, the State asserts that Appellant’s issue is not preserved for our review.

                                        Preservation of Error

        The general rule is that a party must make a “timely request, objection, or motion,” and

obtain a ruling thereon to preserve any alleged error for our review. TEX . R. APP . P. 33.1(a)(1). That

rule has certainly been applied to comments made by the trial court during voir dire. See, e.g.,

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). However, in Blue v. State, 41 S.W.3d 129

(Tex. Crim. App. 2000), a plurality of the Court of Criminal Appeals, relying on Rule 103’s

requirement that courts must take notice of fundamental errors affecting substantial rights, held that

a trial judge’s unobjected-to comments during voir dire so tainted the defendant’s presumption of

innocence such that fundamental error occurred and no objection was required to preserve the error

for appellate review. Id. at 132 (the impermissible comments before the jury panel were that the trial

judge did not want to preside over the case and would prefer it if the defendant pled guilty); see also

TEX . R. EVID . 103. Acknowledging that no timely objection was made here, Appellant concedes that

under the general preservation rules, any error is not preserved, but he urges that we should find, as
in Blue, that no objection was required as the judicial comments made, in his view, constituted

“fundamental error.” Although Blue is a plurality opinion and does not constitute binding precedent,

see Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex. Crim. App. 1999); Marshall v. State, 312

S.W.3d 741, 744 (Tex. App. – Houston [1st Dist.] 2009, pet. ref’d), we have nonetheless reviewed

the comments and conclude that no “fundamental error” occurred.

                                        Fundamental Error

       Due process requires a neutral and detached trial judge. Brumit v. State, 206 S.W.3d 639,

645 (Tex. Crim. App. 2006). Nevertheless, a trial judge has broad discretion in maintaining and

expediting the trial. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). Indeed, a judge

may interject in the proceedings to correct a misstatement or misrepresentation in the testimony, or

a misstatement of the law, to explain a point of law or aspect of the legal or justice system, or to

clarify a point of confusion. Id.; Gordon v. State, 191 S.W.3d 721, 726 (Tex. App. – Houston [14th

Dist.] 2006, no pet.). We presume that a trial court’s interjections were fair and impartial absent a

clear showing of bias. Brumit, 206 S.W.3d at 645. Therefore, we will only find fundamental error

when the complained-of conduct rises “to such a level as to bear on the presumption of innocence

or vitiate the impartiality of the jury.” Jasper, 61 S.W.3d at 421. Mere expression of irritation or

frustration with defense counsel does not equate to a judge’s view or opinion on the defendant’s

case, guilt, or innocence. Id.

                                 The First Complained-of Comments

       During voir dire, counsel stated:

               What I need to know from you, each one of you, is because of the nature and
       the seriousness of this crime, [Appellant] is entitled to a juror who can be fair and
       impartial in this type of case.

               Some of you have had experiences with crimes either of this type or other
        types. And I will need to know from each of you honestly whether because of the
        seriousness of this type of crime, whether you because of your experiences in life
        either with the criminal justice system or with a family member who has been
        involved in a similar type crime, can be fair and impartial to [Appellant] because of
        the type of crime it is. Okay?

               Is there anybody that because of the seriousness of this type of crime that it
        would be impossible for you to be fair and impartial to [Appellant] today?

After four potential juror raised their hands, the trial court interjected:

        Now, ladies and gentlemen, let me stress again before we all – okay – crime is bad.
        We don’t get to decide what is a crime. The jury will decide whether this offense
        was committed and whether the state has proven it. Okay.

                Now, I mentioned that we would like to have 15 video cameras on this. We
        would like to have all the social background in regard to a person if he is found
        guilty.

                But the whole burden is on the state. And it is not an easy job. Being a juror
        is not an easy job. I mean we have people that are missing salaries, people – it is not
        an easy job whatsoever.

               Now, just answering this question at this time – Mr. Storch [Appellant’s
        counsel] – was a very proper question, you ask yourself, Hey, I can’t [d]o it, just no
        way possible I can do it. Okay.

Five more veniremembers raised their hands. Counsel did not object to the trial court’s comment

but moved on, noted that the case involved family violence, and questioned the panel whether

“[b]ecause of your experiences or experiences of close friends or family and the nature of that

offense within a family, assaultive behavior within a family, that because of the nature of that

offense, that you could not be fair . . . .” Before the panel could answer, the trial court stated:

        Ladies and Gentlemen, once again, let me stress again, jury service is not easy. This
        case has been mistried in the past because people could not consider the law. Now,
        Mr. Storch is entitled to ask you these questions. He is entitled to get answers. But
        I want you to think very carefully before you answer a question on the thing because,
        as we say, murder is wrong. Family violence is wrong.

                But I am saying if you are going to enforce either which way, the facts on this
        case – whether you had to decide this case based on the evidence that you hear in the
       courtroom, not based on something that happened to your sister, brother or somebody
       else or happened to you.

              Or not what the newspapers say. Based on the evidence that you hear in this
       courtroom. Proceed on.

       Appellant characterizes these comments as improper, noting that they advised the jury that

the case previously resulted in a mistrial, told the jurors that murder and family violence are

“wrong,” instructed them not to let their decision be influenced by their personal biases and

sympathies, and indicated disagreement with counsel’s questions. However, although the trial court

improperly mentioned the previous mistrial, the single, detached remark did not suggest anything

about the trial court’s opinion on Appellant’s guilt or innocence, nor did it suggest that Appellant

was responsible for the mistrial. Cf. Burrow v. State, 668 S.W.2d 441, 443 (Tex. App. – El Paso

1984, no pet.) (finding remark about previous mistrial harmless). Similarly, the statement that

murder and family violence are wrong are simple facts already known to the jury and correct

statements of the law. See Rogers v. State, 662 S.W.2d 13, 18 (Tex. App. – Tyler 1983, pet. ref’d)

(comment that “robbery is a felony” was common knowledge and a correct statement of the law).

That remark certainly did not suggest that the trial judge believed that Appellant was guilty of those

crimes in this case. Moreover, it is clear that the trial judge’s remaining statements were simply

clarifications, that is, that jurors must base their decisions on the evidence, not on what happened

to family members or other persons they knew. See Jasper, 61 S.W.3d at 421 (trial judge may

interject to clear up confusion or to correct a misstatement or misrepresentation). Finally, none of

the comments, in our view, indicated any disagreement with counsel’s questions but rather sought

to make counsel’s questions more easily understood by the jury panel such to expedite the process

and ensure fair jurors. Id. In fact, the trial court noted that counsel’s questions were proper.

Therefore, we do not find that the first complained-of comments rose to such a level as to bear on
Appellant’s presumption of innocence or that they vitiated the impartiality of the jury. Id.

                                      The Remaining Comments

        Continuing on, after the trial court finished its explanation, counsel, without objection,

repeated his question:

        Let me repeat the question. Okay? So that I can – please let me – because – have
        you or a member of your family, friend, close associate been a victim of assaultive
        behavior from another member of their family in a dating relationship or in a family
        relationship? And if so, would this make it difficult for you to sit in this type of a
        case and give [Appellant] a fair hearing of the evidence?

After three veniremembers raised their hands, the trial court informed counsel that he said “difficult,”

that “difficult” was different from “not being able to,” and that he should rephrase his question.

Without any objection, counsel asked who would be unable to give Appellant a fair hearing because

of their past experiences. Seven more potential jurors raised their hands.

        Counsel next examined the panel on Appellant’s right to remain silent, reasonable doubt,

racial attitudes, and various punishment issues. Finally, counsel discussed the purposes of an

objection and questioned whether the potential jurors could disregard what was said if instructed to

do so by the trial court. After three veniremembers raised their hands, the trial court interjected:

        Well, let me rephrase the question because we have – (inaudible) – and they are not
        quite understanding the question.

               The rule is that a case will be tried in accordance with the evidence. Once in
        a while there is something said that is not according to the evidence.

               I tell the jury to disregard that and I will instruct them, can you disregard that
        and everybody raise their right hand and swear they can. But otherwise, we are going
        to be wasting our time in this case.

              I mean a person has to be strong in doing right, being a good juror and that
        means everything that Mr. Storch has mentioned heretofore.

               The right to testify, not testify. The fact that the burden is all on the state.
        The fact that he has to hold the state to the charges beyond a reasonable doubt.
               All of these things are part of the jury system and part, just like if there is a
       piece of evidence that comes in and I have to include it, normally I will catch it
       before that and call the attorneys forward here to the Bench to talk to them.

              But if a piece of evidence comes in before it is supposed to come in or can
       come in, I am going to instruct you not to consider that and make you-all swear that
       you will not consider it.

               Can you do that? In an appropriate case?

Counsel did not object to the trial court’s comment. When one of the veniremembers expressed

difficulty in disregarding something she heard, the trial court provided additional examples of how

inadmissible evidence might come to the attention of the jury. Counsel then asked if anybody could

not follow the law and disregard what the trial court instructed them to disregard. Only one potential

juror raised his hand.

       Appellant asserts that these “interrupting” comments indicated to the jury that the judge

disrespected counsel and believed that he was not asking proper questions. However, to properly

qualify jurors, counsel must explain the law to the panel and then ask whether they can follow that

law regardless of personal views. See Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App.

2004). And as the propriety of a particular voir dire question is within the discretion of the court,

the trial court may require counsel to rephrase vague or broad questions so that the parties may glean

more relevant information from a potential juror’s answer. See Barajas v. State, 93 S.W.3d 36,

38-39 (Tex. Crim. App. 2002).

       Here, whether the jurors would find it “difficult” to “sit in this type of a case” alone was

irrelevant; rather, the more appropriate question was whether, because of the nature of the case, the

jurors would be unable to sit in this type of case and give Appellant a fair trial. We therefore do not

find the court’s request for counsel to rephrase his question improper. Moreover, the trial court’s

comments on objectionable evidence were merely injected to ensure that the venirepanel understood
its obligation to disregard matters not properly admitted in evidence. In other words, it was a

permissible clarification. Jasper, 61 S.W.3d at 421; Gordon, 191 S.W.3d at 726-27.

        In short, in determining whether fundamental error occurred, we must find that the trial

court’s comments impermissibly treaded on Appellant’s presumption of innocence such that it

vitiated the impartiality of the jury. Jasper, 61 S.W.3d at 421; Gordon, 191 S.W.3d at 726-27. The

comments here, however, fail to meet that threshold and are certainly a far cry from those made in

Blue. See Blue, 41 S.W.3d at 132 (the trial court commented to the panel that it did not want to

preside over the case and would prefer it if the defendant simply pled guilty). Having reviewed the

complained-of comments in context, we cannot conclude that any of them can be reasonably

interpreted as conveying the court’s opinion on Appellant’s guilt or innocence, nor that they vitiated

the jury’s impartiality. Finding no fundamental error, we overrule Issue One.

                                        JURY UNANIMITY

        Appellant’s second issue alleges that his conviction is based on a nonunanimous verdict in

violation of the federal and state constitutions, and state statutes. Specifically, he contends that the

jury charge was erroneous, asserting that although it allowed the jurors to convict him of family

violence assault, it did not provide that they had to agree on the way he committed the charged

offense.

                                          Applicable Facts

        The indictment charging Appellant with family violence assault alleged five alternate means

of committing the offense. Specifically, the first paragraph alleged that Appellant pulled Becky’s

hair with his hand, the second paragraph alleged that Appellant dragged her across the ground using

his hand, the third paragraph alleged that Appellant struck her about the face with his hand, the

fourth paragraph alleged that Appellant slammed her head against the ground using his hand, and
the final paragraph alleged that he struck her about the face with his elbow. The application

paragraph of the jury charge then instructed the jury that they could find Appellant guilty of family

violence assault if they found, beyond a reasonable doubt, that Appellant did then and there

intentionally, knowingly, or recklessly cause bodily injury to Becky by pulling her hair with his hand,

by dragging her across the ground using his hand, by striking her about the face with his hand, or by

slamming her head against the ground using his hand.1 In other words, the court’s charge stated that

if the jury found from the evidence beyond a reasonable doubt that Appellant caused bodily injury

to Becky, as set out in any of the paragraphs, then the jury must find Appellant guilty of family

violence assault. Although Appellant objected at the charge conference that failing to require the

jury to agree on the way he committed the offense would violate his right to a unanimous jury verdict

under the federal and state constitutions, the trial court overruled the objection.

                                              Preservation of Error

         Initially, the State contends that Appellant’s state constitutional argument is not preserved

for our review. According to the State, Appellant’s objection at the charge conference – that the

disjunctive charge violated his right to a fair trial under Article I, Sections 10 and 15 of the Texas

Constitution – does not comport with his assertion on appeal – that the disjunctive charge violated

his right to a fair trial under Article I, Section 19, and Article V, Section 13 of the Texas

Constitution. However, although the general preservation rules require that a party’s complaint on

appeal be the same as that made at trial, see Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App.

1995), complaints of error in the court’s charge may be raised for the first time on appeal. See Trejo

v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009).



        1
           The trial court did not include the indictment’s final paragraph of conduct in the charge, and Appellant
does not complain of this omission on appeal.
                                         Standard of Review

       In evaluating an allegation of jury-charge error, our first task is to ascertain whether there was

error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error is found,

we then review whether that error caused Appellant harm. Id. If Appellant did not object to the

error, we review the record for egregious harm. Id. at 743-44. However, if he did object, we merely

look for some harm. Id. at 743.

                             Unanimity under the Federal Constitution

       Initially, we address Appellant’s claim that his right to an unanimous verdict under the

federal constitution was violated. Citing Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115

L.Ed.2d 555 (1991) (plurality op.), Appellant contends that the United States Constitution guarantees

him the right to a unanimous verdict. However, Schad stands for no such proposition when the case

concerns noncapital felonies. See id. at 635 n.5 (stating that a “state criminal defendant, at least in

noncapital cases, has no federal right to a unanimous jury verdict”); Hannah v. State, No. 14-09-

00283-CR, 2010 WL 1790807, at *2 n.2 (Tex. App. – Houston [14th Dist.] May 6, 2010, pet. ref’d)

(mem. op., not designated for publication) (finding appellant’s federal due-process complaint of juror

unanimity without merit, noting that a criminal defendant, in noncapital cases, has no federal right

to a unanimous verdict). Moreover, we note that although the Sixth Amendment to the United States

Constitution requires juror unanimity, that provision only applies to federal criminal trials. See

Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 92 L.Ed. 1055 (1948). Although we

recognize that the Sixth Amendment is applicable to the states by virtue of the Fourteenth

Amendment, see Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968),

there is no authority that states the United States Constitution requires a unanimous verdict in state

cases. See Apodaca v. Oregon, 406 U.S. 404, 411-12, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (the
Sixth Amendment does not require a conviction by a unanimous verdict in state court); Phillips v.

State, 130 S.W.3d 343, 352 n.6 (Tex. App. – Houston [14th Dist.] 2004), aff’d, 193 S.W.3d 904

(Tex. Crim. App. 2006) (citing Apodaca, “The United States Constitution clearly does not grant a

right to a unanimous verdict.”). Accordingly, we find Appellant’s federal contention without merit

and will proceed to address Appellant’s claimed right to unanimity under Texas law only.

                        Unanimity under the Texas Constitution and Statutes

         Our state constitution requires that a jury verdict in a felony case be unanimous, and under

our state statutes, unanimity is required in all criminal cases. TEX . CONST . Art. V, § 13; TEX . CODE

CRIM . PROC. ANN . art. 36.29 (West Supp. 2010); Stuhler v. State, 218 S.W.3d 706, 716 (Tex. Crim.

App. 2007). Unanimity, according to the Court of Criminal Appeals, means that every juror must

agree that the defendant committed the same, single, specific criminal act. Ngo, 175 S.W.3d at 745.

It does not mean, however, that jurors must unanimously agree that the defendant committed that

crime in one specific way or even with one specific act. Id. at 746; Landrian v. State, 268 S.W.3d

532, 535 (Tex. Crim. App. 2008) (citing Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App.

2006)). Indeed, while jury unanimity is required as to the essential elements of the statutory criminal

offense, their decision need not be unanimous regarding the means or methods of commission, if

alternate means and methods are alleged. See Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App.

2007).

         Here, Appellant was charged with assault to a family member. By statute, the essential

elements of that offense are that (1) Appellant (2) intentionally, knowingly, or recklessly (3) caused

bodily harm to Becky, his spouse. See TEX . PENAL CODE ANN . § 22.01(a)(1) (West 2011). How

Appellant caused the bodily harm was not a statutory element but rather a means or method. See

Davila v. State, No. 08-07-00041-CR, — S.W.3d —, 2009 WL 222143, at *2 (Tex. App. – El Paso
Jan. 29, 2009, no pet.) (not yet reported) (finding no violation of unanimity requirement when

disjunctive charge allowed jury to convict defendant of assault causing bodily injury to a family

member by either grabbing victim’s hair or grabbing victim about the neck). In other words, the jury

simply needed to agree that he committed the assault, not how he committed it. And as the jury

charge here correctly required unanimity on the core essential statutory elements, the jury was not

required to unanimously agree on how the assault occurred, that is, on a specific way such as pulling

Becky’s hair, dragging her across the ground, striking her about the face, or slamming her head

against the ground. Id.

         Finding no violation of Appellant’s right to jury unanimity under Texas law, we hold that the

charge contained no error. Accordingly, we need not assess harm and overrule Appellant’s second

issue.

                                          CONCLUSION

         Having overruled Appellant’s issues, we affirm the trial court’s judgment.



                                               GUADALUPE RIVERA, Justice
July 13, 2011

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
