                                 NO. 07-10-0139-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                  JULY 30, 2012
                         ______________________________


                    JOSEPH MICHAEL ANDERSON, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 19TH DISTRICT COURT OF McLENNAN COUNTY;

          NO. 2009-1366-C1; HONORABLE RALPH T. STROTHER, JUDGE

                        _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                       MEMORANDUM OPINION ON REMAND


      The Court of Criminal Appeals vacated our earlier opinion in this case, Anderson

v. State, 341 S.W.3d 585 (Tex.App.--Amarillo 2011) and remanded it for reconsideration

in light of Fuller v. State, 363 S.W.3d 583 (Tex.Crim.App. 2012), wherein it concluded

that questions regarding the differences between the criminal and civil burdens of proof

are relevant to understanding a venire member's potential bias or prejudice as to that
area of the law and, consequently, the effective exercise of a challenge for cause.

Upon further analysis, we again affirm the judgment of the trial court.


                        FACTUAL AND PROCEDURAL BACKGROUND


       During the early morning hours of February 11, 2009, Officer Michael Miller

observed Appellant's vehicle exit a motel parking lot, cross into an oncoming lane, and

roll through a stop sign. Officer Miller initiated the lights of his patrol car and pulled

Appellant over for traffic violations. After approaching Appellant, Officer Miller noticed

the smell of an alcoholic beverage on Appellant's breath.        According to the officer,

despite the cold weather, Appellant was not wearing a shirt, had red, bloodshot eyes,

and his speech was slurred. Appellant was asked to exit his vehicle and instructed to

perform three field sobriety tests. According to Officer Miller, Appellant was not able to

perform any of the tests satisfactorily and was arrested. He was subsequently charged

with felony driving while intoxicated, enhanced by two prior felony DWIs.


       Prior to commencement of voir dire, the trial court announced:

       When you're voir diring the jury and we're talking about the standard of
       proof, proof beyond a reasonable doubt, I don't allow anybody to talk
       about clear and convincing evidence, preponderance of the evidence, and
       compare that to proof of beyond a reasonable doubt. I think that confuses
       the jury panel, I think it's misleading, so I don't want anybody saying that
       you've got to have this much -- a certain quantity of evidence to prove a
       civil case and a certain quantity of evidence to prove clear and convincing
       standard of proof and you've got to get to this level to prove a criminal
       case because that's confusing, and there's no definition of proof beyond a
       reasonable doubt, so I don't want anybody voir diring on that issue.


Defense counsel objected on the grounds that he would be unable to intelligently use

his challenges for cause and his representation during voir dire would be rendered



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ineffective. Although defense counsel was able to extensively question prospective

jurors about the State's burden of proof of beyond a reasonable doubt, his attempt to

raise the issue again during voir dire was denied and his objection was overruled.


        Following presentation of evidence, the jury convicted Appellant and assessed

his sentence at confinement for a term of thirty years. This Court originally determined

the trial court did not err by limiting voir dire to the burden of proof actually before the

jury.   Following Fuller, the Court of Criminal Appeals vacated our judgment and

remanded the case to this Court for further analysis. Finding the trial court erred in sua

sponte and preemptively forbidding defense counsel from comparing the two burdens of

proof, we must now determine the effect of that error.


                                 STANDARD OF HARM ANALYSIS


        The   denial   of   an    appropriate       question   during   voir   dire   constitutes

nonconstitutional error that is subject to a harm analysis. Fuller, 363 S.W.3d at 589;

Rich v. State, 160 S.W.3d 575, 577 (Tex.Crim.App. 2005). The proper test for such

error is that set out in Rule 44.2(b) of the Texas Rules of Appellate Procedure, and

under that test a reviewing court should disregard any "error, defect, irregularity, or

variance that does not affect substantial rights" of the appellant. A substantial right is

affected "when the error has a substantial and injurious effect or influence in

determining the jury=s verdict." Id. at 577 (quoting Russell v. State, 155 S.W.3d 176,

179 (Tex.Crim.App. 2005)).


        In determining whether error of this type affects the defendant's substantial rights

an appellate court should use an appropriately tailored set of factors to determine

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whether the defendant's substantial rights have been affected. See Sanchez v. State,

165 S.W.3d 707, 709 (Tex.Crim.App. 2005).            In that regard, we must consider

everything in the record, including other voir dire questions, the character of the error

and how it might be considered in connection with the appropriate application of the

State's burden of proof, any testimony or physical evidence admitted for the jury's

consideration, the nature of the evidence supporting the verdict, the State's theory of the

case as well as any defensive theories, the jury instructions, closing arguments, and

whether the two burdens of proof were otherwise emphasized or explained. Rich, 160

S.W.3d at 577-78.

                                        ANALYSIS

VOIR DIRE


         Although the trial court refused to allow defense counsel to discuss with the

venire members the differences between the criminal burden of proof of beyond a

reasonable doubt and the civil burdens of proof of clear and convincing evidence and

preponderance of the evidence, the court placed no limitations on counsel's ability to

explain the criminal burden of proof or determine whether individual venire members

could follow their oath and render a verdict according to their own understanding of

reasonable doubt. In fact, the trial court specifically advised defense counsel that he

was permitted to question venire members concerning their individual understanding of

reasonable doubt. While counsel may have been restricted, he was not prohibited from

making a thorough inquiry into each venire member's concept of beyond a reasonable

doubt.




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       In fact, during voir dire, the trial court extensively explained the concepts of

presumption of innocence and the State's burden of proving the elements of the

indictment to the satisfaction of the individual jurors, beyond a reasonable doubt.

During its instructions to the jury, prior to any questioning by either the prosecution or

the defense, the court said, in part:

       "Not only do they [the prosecution] have the burden of proof, they have to
       meet a certain standard of proof, and that standard for a criminal case is
       called proof beyond a reasonable doubt. It is the highest level - -
       standard in our system of law."


       Likewise, during their respective questioning, both the prosecution and the

defense repeatedly touched upon the concepts of the State's burden of proof and the

requirement that their proof reach the level of beyond a reasonable doubt. Accordingly,

although limited in methodology, Appellant was accorded the opportunity to elicit

pertinent information from every prospective juror.


CHARACTER OF THE ERROR AND HOW IT AFFECTED APPELLANT'S RIGHT             TO   CHALLENGE   A
PROSPECTIVE JUROR FOR CAUSE


       While the error may have handicapped defense counsel's ability to make a

challenge for cause, it didn't prevent it. Counsel was free to question individual venire

members concerning their concept of reasonable doubt.          Furthermore, he was not

prevented from challenging venire members based on their individual views concerning

what constitutes reasonable doubt and he was even able to successfully challenge

several venire members.        Furthermore, he was not restricted in the exercise of

Appellant's peremptory strikes.         Because Appellant was accorded the means of

preventing a legally disqualified or biased venire member from being seated on the jury,

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his right to, and the State's interest in, a fair and impartial jury was not thwarted. See

Sanchez, 165 S.W.3d at 711.


CHARACTER OF THE ERROR AND HOW IT AFFECTED              THE   PROPER APPLICATION    OF THE
REASONABLE DOUBT BURDEN OF PROOF


       Refusing to allow defense counsel to compare the criminal burden of proof to the

civil burdens of proof in no way shifted that burden to the defense or otherwise lessened

the State's obligation to prove its case beyond a reasonable doubt. As applied to the

facts of this case, the trial court's error in no way affected the proper application of the

reasonable doubt burden of proof.


NATURE OF THE EVIDENCE SUPPORTING THE JURY'S VERDICT


       Because no breath or blood test results were obtained which would lead to a

presumption of intoxication, the State's case relied upon the observations of the

witnesses, the credibility of their testimony, and each juror's evaluation of the arresting

officer's video.   The evidence showed Appellant was driving erratically, smelled of

alcohol, had blood-shot, glassy eyes, admitted to have been drinking (although claiming

to have just recently awoken), and was having difficulty following directions. He also

failed field sobriety tests, including the horizontal gaze nystagmus test. Furthermore,

although not a confession of guilt, Appellant does not challenge the legal sufficiency of

the evidence establishing his guilt.      See Motilla v. State, 78 S.W.3d 352, 356

(Tex.Crim.App. 2002) (recognizing that overwhelming evidence can be a factor to be

considered in conducting a Rule 44.2(b) harm analysis).




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JURY INSTRUCTIONS AND CLOSING ARGUMENTS

       The Charge of the Court recites, in pertinent part:

       "In all criminal cases, the burden of proof is on the State.

       The defendant is presumed to be innocent of the charge. All persons are
       presumed to be innocent, and no person may be convicted of an offense
       unless each element of the offense is proved beyond a reasonable doubt.
       The law does not require the defendant to prove his innocence or produce
       any evidence at all. Unless the jurors are satisfied beyond a reasonable
       doubt of the defendant's guilt after careful and impartial consideration of all
       the evidence in the case, the presumption of innocence alone is sufficient
       to acquit the defendant."


       The State's closing arguments emphasized the evidence, contending its burden

of proof had been met.       Appellant's closing arguments took the position that the

evidence did not rise to the level of proof beyond a reasonable doubt. Neither side

attempted to quantify the level of proof necessary to reach that threshold, nor did they

compare it in any way to other burdens of proof.


                                       CONCLUSION


       In summary, our review of the record shows that, although the trial court

improperly limited Appellant's voir dire, the jury was repeatedly and clearly instructed

that the State had the burden of proving Appellant's guilt beyond a reasonable doubt

and there is no evidence that any member of the jury was unable or unwilling to follow

those instructions. Appellant has not challenged the sufficiency of the evidence and

that evidence supports the conviction. The trial court's verbal instructions to the jury, its

written instructions contained in the Charge of the Court, the State's arguments, and




                                             7
even Appellant's arguments, all reinforced the fact that the State had the undeniable

burden of proving Appellant's guilt beyond a reasonable doubt.


       For the foregoing reasons, we hold the trial court's improper limiting of

Appellant's voir dire regarding the differences between the criminal and civil burdens of

proof did not, under the circumstances of this case, have a substantial and injurious

effect or influence on the jury=s verdict. Accordingly, we disregard the error, overrule

Appellant's sole issue, and affirm the judgment of the trial court.



                                                  Patrick A. Pirtle
                                                      Justice


Do not publish.




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