                   PD-0585-15
 THE COURT OF CRIMINAL APPEALS
           OF TEXAS

           Appeal from the Court of Appeals for the
        Fourth District of Texas, at Bexar County, Texas
                  Cause No. 04-14-00115-CR
                              AND

             227th District Court of Bexar County
                   Case No. 2012-CR-4029B


                  LLOYD RECTOR, Petitioner

                              vs.

             THE STATE OF TEXAS, Respondent



PETITION FOR DISCRETIONARY REVIEW



                                          THE LAW OFFICES OF
                                          HOWELL & SABRIN
                                          Caitlin B. Howell
   May 15, 2015
                                          State Bar No. 24069954
                                          Adam Jason Sabrin
                                          State Bar No. 24070542
                                          115 E. Travis
                                          Suite 1500
                                          San Antonio, Texas 78205
                                          Phone: (210) 875-5452
                                          Fax: (210) 587-2460

                                          Attorneys for Petitioner
                                              TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................................................................... i

INDEX OF AUTHORITIES ........................................................................................ ii - iii

STATEMENT REGARDING ORAL ARGUMENT ......................................................... 1

STATEMENT OF THE CASE ........................................................................................... 1

STATEMENT OF PROCEDURAL HISTORY ................................................................. 1

QUESTIONS PRESENTED FOR REVIEW ...................................................................... 2

ARGUMENT.................................................................................................................. 2-10

CONCLUSION ............................................................................................................ 10-11

PRAYER ........................................................................................................................... 11

CERTIFICATE OF SERVICE .......................................................................................... 12

APPENDIX Attached




                                                                  i
                               INDEX OF AUTHORITIES

CASES

Blue v. State, 41 S.W.3d 129 (Tex.Crim. App. 2000)……………...………………..…....6, 10

Bollenbach v. United States, 326 U.S. 607 (1946)……………………………..………….6

Cage v. Louisiana, 498 U.S. 39 (1990)…………………………………….……...………5-6, 7, 8

Colbert v. State, 56 S.W.3d 857 (Tex.App-Corpus Christi 2001) ……………...…………7

Estelle v. McGuire, 502 U.S 62 (1991) …………………………………………..…….....6

Fuentes v. State, 991 S.W.2d 267, 273 (Tex.Crim.App. 1999)……………………………7

Garcia v. State, 246 S.W.3d 121 (Tex.App.-San Antonio 2007). ………………...………7

Hardman v. Dault, 2 S.W.3d 378 (Tex.App.-San Antonio 1999, no pet.)………..……….9

Hicks v. United States, 150 U.S. 442 (1893)……………………………….……..………..6

Holland v. United states, 348 U.S. 121 (1954) …………………………….……...………4

Krishnan v. Ramirez, 42 S.W.3d 205 (Tex.App.-Corpus Christi 2001, pet. denied)…...….9

Latson v. State, 440 S.W.3d 119 (Tex.App.-Houston [14th Dist.] 2013, no pet)..…………7

Paulson v. State, 26 S.W.3d 570 (Tex.Crim.App. 2000) ……………………………..……4, 5, 8

Rodriguez v. State, 96 S.W.3d 398 (Tex.App.-Austin 2002) ………………………………5

Starr v. United States, 153 U.S. 626 (1894)………………………………………………...6

United States v. Langer, 962 F.2d 592 (7th Cir. 1992) ………………………….………….5

Victor v. Nebraska, 511 U.S. 1 (1994) …………………………………...……….………. 4

CONSTITUTIONAL PROVISIONS

U.S. CONST. AMEND. V…….…………………………………...……………..…………..7

U.S. CONST. AMEND. XIV…………….……………………………….…….……………..7




                                             ii
STATUTES AND CODES

TEX. PENAL CODE § 29.03………..………………………………………….…………….. passim

TEX. R. APP. P. 33.1…………………………………………………………….…………..8-9

TEX. R. APP. P. 66.3(b)………………..…………………………………………………….2, 11




                             iii
                  STATEMENT REGARDING ORAL ARGUMENT

       Petitioner respectfully requests oral argument, to assist the Court with the

interpretation and construction of the cases, statutes, regulations and other authorities

pertinent to the constitutional issues in the case.

                              STATEMENT OF THE CASE

       Petitioner Lloyd Rector (“Rector”) is a resident of San Antonio, Texas. On

February 16, 2014, Rector was walking in a neighborhood with known drug activity,

when he was stopped and questioned by police as to his presence in the area, due to

several break-ins there. The officer was satisfied with Rector’s explanation that he was

not breaking into homes and released him. At some time thereafter, the officer was called

to the scene of a robbery at a nearby house which may or may not have been selling

illegal narcotics. The witnesses refused to give a statement and did not wish police to

investigate further until several weeks later. Based only on the description of a dark-

skinned black man having been present at the robbery, the police located Rector and

questioned him. He admitted to having been at the house earlier, but denied involvement

in the robbery. The second robber, whom the victim clearly identified – having gone to

school with him – denied knowing Rector at all, though Rector admitted to knowing him.

                       STATEMENT OF PROCEDURAL HISTORY

       Lloyd Rector was accused of aggravated robbery by indictment on February 16, 2012.

Rector entered a plea of Not Guilty and proceeded to trial. He was found guilty of aggravated

robbery with a deadly weapon, a firearm, on December 6, 2013 and sentenced to 20 years in a




                                               1
 Texas Department of Corrections facility. (1 C.R. 108-110)1. He timely filed a Motion for New

 Trial which the 227th refused to hear, citing that it had to be heard by the visiting judge, and was

 therefore overruled by operation of law. (1 C.R. 114-117). His Notice of Appeal was timely

 filed. (1 C.R. 112-113). Rector filed an appeal, and the Court of Appeals issued and Opinion and

 Judgment on April 15, 2015 denying Rector relief.

                                     QUESTIONS FOR REVIEW

1.       Did the Fourth Court of Appeals err when it found that the trial court’s definition of

 “beyond reasonable doubt” given to the venire panel at the beginning of trial, in conjunction with

 the trial court’s statement that the jury charge they would receive would not be helpful, was not

 an abuse of discretion?

 2.      Did the Fourth Court of Appeals err when it held that the Defendant waived his objection

 and thus preservation of error to the trial court’s sustaining the state’s objection to his attempt

 correcting the court’s definition of beyond reasonable doubt during voir dire?

                                              ARGUMENT

         Review is necessary pursuant to TEX. R. APP. PROC. 66.3(b) because the Court of

 Appeals has decided an important question of state or federal law that has not been, but

 should be, settled by the Court of Criminal Appeals. The Court of Criminal Appeals

 should grant discretionary review of the erroneous decision by the Court of Appeals

 because Rector’s fundamental due process right to be found guilty only by the highest

 standard of evidence was violated.




 1
  Citations to the appellate record are designated as follows: CR refers to the Clerk’s Record;; RR refers
 to the Reporter’s Record.


                                                     2
   1. Facts

   Lloyd Rector was accused of aggravated robbery by indictment on February 16, 2012. He

was found guilty of aggravated robbery with a deadly weapon, a firearm, on December 6, 2013

and sentenced to 20 years in a Texas Department of Corrections facility. (1 C.R. 108-110).

   At trial, during the trial court’s voir dire of the venire panel he stated as follows:

       THE COURT: “Let’s talk about reasonable doubt. I’m going to offer up a definition in a
minute. I stole it from a prosecutor 30 years ago. And the reason I did that is because he had a
way to define it that I couldn’t say it in better than that. You’re going to get a definition in the
Court’s charge. The definition goes something along the lines of, It’s not beyond all doubt but
beyond a reasonable doubt. I’m not sure how helpful that is.

My definition that I borrowed is if you go back there in the jury room and you think the
Defendant is probably guilty, that’s not proof beyond a reasonable doubt. If you go back there in
the jury room and you’re convinced in your heart and in your mind, that is proof beyond a
reasonable doubt.

All right, that’s the burden.”
(2 R.R.at 41).

   Immediately following the trial court’s statement, Defense counsel objected and his objection

was overruled by the Court. Id.

   “MR. HOELSCHER: Judge I have to object. That’s not a proper statement of the law.

   THE COURT: Your objection will be overruled.” Id.

   When Defense counsel attempted to explain that “when someone says you got to be

convicted in your heart, in your mind…that’s not beyond a reasonable doubt,” the State objected

to Defense explaining why that was not the definition of the standard of proof, “Judge, I’m going

to object to getting into the definition and misstating the law beyond a reasonable doubt,”

confirming that they believed it to be an accurate statement of the law and that State and Defense

were not in agreement. (2 R.R. 117). The trial court instructed Defense to rephrase what he was

saying. Id.




                                                  3
   2. The Fourth Court of Appeals erred when it found that the Trial Court’s

       Definition of “beyond a reasonablr doubt” given during voir dire and in

       conjunction with reference to the jury charge they would later receive did not

       constitute reversible error.

   Rector was found guilty of Aggravated Robbery with a Deadly Weapon by the jury

who were given a definition of the “beyond a reasonable doubt” standard by the Trial

Court Judge during voir dire that impermissibly lowered the burden of proof required by

the State to prove. In doing so the Trial Court abused its discretion and violated Rector’s

Due Process rights under the Fourteenth Amendment of the United States Constitution.

   A. Definition of Beyond A Reasonable Doubt

   “The beyond a reasonable doubt standard is a requirement of due process, but the

Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do

so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5 (1994). The Constitution does not

require that any particular form of words be used in advising the jury of the government’s burden

of proof, see Id., but “rather, taken as a whole, the instructions must correctly convey the concept

of reasonable doubt to the jury.” Holland v. United states, 348 U.S. 121, 140 (1954).

   Both this Court and the United States Supreme Court have similarly stressed the importance

of protecting a defendant’s right to Due Process under the “beyond a reasonable doubt” standard

as well as the difficulty in defining the standard. See Paulson v. State, 28 S.W.3d 570, 575-576

(Tex.Crim.App. 2000). In Paulson, this Court explained that upon review of the United States

Supreme Court cases Jackson v. Virginia and Holland v. United States, there existed no explicit

support for the instruction or definition of reasonable doubt. See Id. At 575 (referencing Jackson

v. Virginia, 443 U.S 307 (1979) and Holland v. United States, 348 U.S. 121 (1954)). This Court


                                                 4
stated that, in fact, “it is ill-advised for us to require trial courts to provide the jury with a

redundant, confusing, and logically flawed definition when the Constitution does not require it.

Paulson, 28 S.W.3d at 573. Emphasizing the danger of defining reasonable doubt, in Rodriguez

v. State the court stated that “it has been said that “any use of an instruction defining reasonable

doubt presents a situation equivalent to playing with fire.” Rodriguez v. State, 96 S.W.3d 398,

405 (Tex.App.-Austin 2002)(quoting United States v. Langer, 962 F.2d 592, 600 (7th Cir. 1992)).

    The United States Supreme Court has also identified when the mere language used by a court

to define reasonable doubt violates a defendants Due Process rights under the Fifth and

Fourteenth Amendments. U.S. CONST. AMEND. V, XIV; see Cage v. Louisiana, 498 U.S. 39, 40

(1990). In Cage, the trial courts definition of reasonable doubt submitted to the jury read as

follows:

        “[A reasonable doubt] is one that is founded upon a real tangible substantial basis and not
        upon mere caprice and conjecture. It must be such doubt as would give rise to a grave
        uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence
        or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial
        doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not
        an absolute or mathematical certainty, but a moral certainty.”

        Id.

        The court in Cage concluded that this definition of reasonable doubt violated the

defendant’s Due Process rights as a reasonable juror could have interpreted the instruction to

allow a finding of guilt based on a degree of proof below that which is constitutionally required.

See Id. at 41. The court in Cage further explained that a reasonable juror could have confused a

standard of “moral certainty” with that of evidentiary certainty and found the defendant guilty

based on an unconstitutionally low standard of proof. Id. Subsequent to the court’s holding in

Cage, the court stated that “the proper inquiry is not whether the instruction could have been

applied in an unconstitutional manner but whether there is a reasonable likelihood that the jury



                                                     5
did so apply it.” Estelle v. McGuire, 502 U.S. 62, 72 and n.4 (1991).

       This Court has also recognized that just because a statement by the trial court judge does

not later appear in the jury charge reversible error is still appropriate. See Blue v. State, 41

S.W.3d 129, 131 (Tex.Crim. App. 2000). In Blue this Court stated that

   “too much caution cannot be exercised in the effort to avoid impressing the jury with the idea
   that the court entertains any impressions of the case which he wishes them to know, and
   putting before them matters which should not enter into or affect their deliberations ... should
   in all cases be avoided. To the jury the language and conduct of the trial court have a
   special and peculiar weight. The law contemplates that the trial judge shall maintain an
   attitude of impartiality throughout the trial. Jurors are prone to seize with alacrity upon any
   conduct or language of the trial judge which they may interpret as shedding light upon his
   view of the weight of the evidence, or the merits of the issues involved. The delicacy of the
   situation in which he is placed requires that he be alert in his communications with the jury,
   not only to avoid impressing them with any view that he has, but to avoid in his manner and
   speech things that they may so interpret. (citing Lagrone v. State, 84 Tex.Crim. 609, 209
   S.W. 411, 415 (1919).


       Similarly the United States Supreme Court commented that "[i]t is obvious that under any

system of jury trials the influence of the trial judge on the jury is necessarily and properly of

great weight, and that his lightest word or intimation is received with deference, and may prove

controlling." Starr v. United States, 153 U.S. 614, 626 (1894)(citing Hicks v. United States, 150

U.S. 442, 452 (1893)); see also Bollenbach v. United States, 326 U.S. 607, 612 (1946).

   B. The Exception to the Rule

   Though this Court in Paulson made it clear that defining reasonable doubt to a jury was

problematic at best and should be avoided by trial courts, the court did carve out a specific

exception for defining or explaining the term: when the State and the defendant agree on the

wording within the limits of the Due Process Clause. See Id. For example, in Vosberg v. State the

court concluded that no error was committed in defining reasonable doubt when the State

presented the proposed language to defense counsel and no objections were made. See Vosberg




                                                   6
v. State, 80 S.W.3d 320, 321 (Tex.App.-Fort Worth 2002). Similarly and more recently in Garcia

v. State, the Fourth Court also held that without an objection by the defense to an explanation of

reasonable doubt to a jury, such an explanation given by the trial court does not constitute

reversible error. See Garcia v. State, 246 S.W.3d 121, 142-143 (Tex.App.-San Antonio 2007).

Conversely, in Colbert v. State, a definition of reasonable doubt was submitted to the jury

without the agreement or permission of either the State or the defense. See Colbert v. State, 56

S.W.3d 857, 860 (Tex.App-Corpus Christi 2001). In that case, defining reasonable doubt was

ruled to be reversible error. See Id.

   In finding that the court’s comments regarding the definition of “beyond a reasonable doubt”

did not constitute reversible error, the lower court leaned heavily on its misconstruction of the

opinion in Latson v. State, 440 S.W.3d 119 (Tex.App.-Houston [14th Dist.] 2013, no pet). In

Latson, the court found simply the statement during voir dire did not constitute fundamental

error, therefore excusing trial counsel’s failure to object to the instruction. Id. at 121. The Latson

court itself relies on Fuentes v. State, which also found only that the defense waived its objection

to the judge’s comments by failing to object to the judge repeating his definition of the standard

of the burden of proof. Latson, 440 S.W.3d at ; Fuentes v. State, 991 S.W.2d 267, 273

(Tex.Crim.App. 1999). Feuntes and Latson fail to address whether a definition of beyond a

reasonable doubt is permissible when the Defense objects to the obstruction properly. Finally,

the Fourth Court claimed that Appellant has not shown that this affected a substantial right;

however, the alteration of the burden of proof and definition thereof implicates Due Process

rights guaranteed by the Fifth and Fourteenth Amendments of the U.S. Constitution, which

Appellant clearly stated in his brief to that court. See Cage, 498 U.S. at 40; U.S. CONST.

AMENDS. V, XIV




                                                  7
   Moreover, unlike in those cases, the trial court expressly stated that he did not believe the

definition given in the jury charge was helpful to the jury. 2 R.R.at 41. While this may not be an

explicit instruction to ignore the jury charge, it certainly tainted the jury’s minds that the charge

they would be given would be inadequate, and therefore they should use his definition instead.

See Latson at 121. Given these circumstances, the rule elicited in Paulson should stand: when the

defense and state do not agree, no definition of “beyond a reasonable doubt” should be given,

even during the trial court’s vior dire. 28 S.W.3d at 573. To do otherwise would permit the trial

court to side-step Paulson whenever it wanted simply by instructing the venire panel as to a

definition during voir dire but not placing that instruction in the court’s charge. In addition, the

trial court’s instruction differs from that in Latson in that the instruction in Latson involved

whether the state had proved to the juror in each of their hearts and minds that the defendant was

guilty. In this case, the trial court stated that if the jury was “convinced” in their hearts and

minds; the issue here being that a juror could be “convinced” of a defendant’s guilt in his heart

and in his mind, even though the state had not proved each element of the case. As such, the trial

court’s instruction is a moral judgment, not a legal standard, and constitutes reversible error,

especially considering defense counsel’s objection to the same. See Cage, 498 U.S. at 40.

   3. The Fourth Court of Appeals erred when it found that Appellant had not

       preserved error for the trial court restricting his discussion of the “beyond a

       reasonable doubt” standard.

   When Rector’s counsel attempted to explicitly state to the venire panel that the definition of

“beyond a reasonable doubt” given by the trial court was incorrect, the State objected and the

judge instructed him to rephrase. The Fourth Court of Appeals stated that because defense

counsel failed to object to the court’s ruling on the State’s objection, the error was not preserved.



                                                  8
    A. Explicit Language Not Required

    The Fourth Court complained that Rector’s counsel failed to preserve error by failing to

object to a ruling on an objection; however, they cited case authority requiring parties to

continuously object to a judge sustaining an opposing party’s objection. In fact, the only

authority they cite for their entire rationale is TEX. R. APP. P. 33.1, the general rule for preserving

error. The court failed to even specify which portion of that rule covers the situation where the

opposing party objects and the judge sustains the objection.

    Rule 33.1(a)(2) states that a trial court may rule “implicitly,” and an explicit, formal

exchange of exact language between the parties and the judge is not required. In Krishnan v.

Ramirez, the exchange in question was similar to the one in question here: one side objected to

the other’s closing statement, to which the trial court simply responded, “You may proceed.” 42

S.W.3d 205, 220 n.3 (Tex.App.-Corpus Christi 2001, pet. denied). As the court points out, when

it is apparent that an issue has been raised and that the trial court is aware of the objection and

response to the objection, the court’s statement to “proceed” was implicitly overruling the

objection. Id. The requirement of an explicit, formal exchange is not necessary where an

objection is lodged and the exchange and ruling is implied. See id.; see also Hardman v. Dault, 2

S.W.3d 378, 381 (Tex.App.-San Antonio 1999, no pet.).

    In this case Mr. Rector’s attorney was making an argument to the venire panel when the state

objected. 2 R.R. 117. The judge implicitly knew the arguments between the parties: the state

objected to defense counsel discussing the judge’s definition of reasonable doubt, and the

defense believed it had a right to correct the improper definition. Id. The judge’s statement to

rephrase is clearly and implied ruling sustaining the objection. Id. The Fourth Court’s assertion is

that a party must object to a judge ruling on an objection in order to preserve error. If the judge




                                                  9
were to change his ruling, would the first party then have to object to the new ruling? Or does the

original objection preserve the error on the second ruling as well? The implication leads to a

ridiculous theoretical result, which would seem to be the basis for Rule 33.1(a)(2) permitting

implied rulings and exchanges.

    B. The Cumulative Effect

    The judge sustaining the state’s objection had an additional effect: it emphasized that the

judge’s definition was correct and any attempts to state otherwise would be shot down. The

judge had disclaimed the jury charge as unhelpful; given the jury a new definition to which

Rector’s counsel objected; overruled counsel’s objection; and, finally, sustained objections to

that same counsel attempting to mitigate the damage. In this context, it seems clear that the judge

wanted the jury to hear and use his definition of “beyond a reasonable doubt,” no matter what

defense felt. The fact that this definition did not appear in the jury charge is inapposite in this

case; the trial court’s repeated insistence on this definition combined with the strong influence

the judge has on the jurors had the same effect as if it had. See Blue, 41 S.W.3d at 131; Starr,

153 U.S. at 626.

                                             Conclusion

       Rector sought to have his circumstantial case weighed by the correct standard: to only be

found guilty if each and every element is proven beyond a reasonable doubt, not if the jurors

believe in their hearts and in their minds that he is guilty. By discounting the jury instruction,

inserting a definition of his own over Rector’s objections, and denying Rector the opportunity to

correct this definition, the trial court denied Rector his Due Process rights guaranteed by the

United States Constitution. Because the Court of Appeals has decided an important

question of state or federal law that has not been, but should be, settled by the Court of



                                                  10
Criminal Appeals, review is proper under TEX. R. APP. PROC. 66.3(b).

                                           PRAYER

       WHEREFORE, Lloyd Rector prays that the Court grant Rector his Petition for

Discretionary Review and grant him such further relief to which he is entitled by law or equity.

                                                    Respectfully Submitted,



                                                    ___________________________
                                                    CAITLIN HOWELL
                                                    State Bar No. 24069954
                                                    THE LAW OFFICES OF HOWELL & SABRIN
                                                    115 E. Travis Street, Suite 1500
                                                    San Antonio, Texas 78205
                                                    (210) 857-5452
                                                    Fax: (210)587-2460
                                                    Co-counsel for Appellant

                                                    ___________________________
                                                    ADAM SABRIN
                                                    State Bar No. 24070542
                                                    THE LAW OFFICES OF HOWELL & SABRIN
                                                    115 E. Travis Street, Suite 1500
                                                    San Antonio, Texas 78205
                                                    (770) 366-3780
                                                    Fax: (210)587-2460
                                                    Co-counsel for Appellant




                                               11
                                CERTIFICATE OF SERVICE

       Under Texas Rules of Appellate Procedure 9.5, I hereby certify that this 15th day of May,

2015, a copy of the above Petition for Discretionary Review has been delivered via facsimile to

Bexar County District Attorney’s Office, Assigned Assistant District Attorney, Appellate

Division, at (210) 335-2436.



                                                    ____________________________________
                                                    Adam Sabrin
                                                    Co-counsel for Appellant


                               CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rules of Appellate Procedure rule 9.4, I certify that the above Petition

for Discretionary Review contains 3,276 words, which is in compliance with the length limit for

briefs under the rule 9.4.




                                                    ____________________________________
                                                    Adam Sabrin
                                                    Co-counsel for Appellant




                                               12
APPENDIX
                                 Fourth Court of Appeals
                                       San Antonio, Texas
                                   MEMORANDUM OPINION
                                           No. 04-14-00115-CR

                                            Lloyd RECTOR,
                                               Appellant

                                                   v.
                                                 The /s
                                          The STATE of Texas,
                                                Appellee

                        From the 227th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2012-CR-4029B
                             Honorable George H. Godwin, Judge Presiding 1

Opinion by:         Rebeca C. Martinez, Justice

Sitting:            Rebeca C. Martinez, Justice
                    Patricia O. Alvarez, Justice
                    Luz Elena D. Chapa, Justice

Delivered and Filed: April 15, 2015

AFFIRMED

           Lloyd Rector appeals his conviction for aggravated robbery with a deadly weapon, arguing

the trial court abused its discretion by defining “beyond a reasonable doubt” during voir dire and

by denying him access to evidence with potential exculpatory and impeachment value. We

overrule Rector’s issues on appeal and affirm the trial court’s judgment.




1
    Sitting by assignment.
                                                                                    04-14-00115-CR


                                         BACKGROUND

       At approximately 5:00 a.m. on February 16, 2014, Jennifer Delgado and her friend Alex

were asleep on her living room couch when they heard loud banging on the front door and two

men entered the home. The darker-skinned man pointed a gun at them and instructed them to lie

down on the floor and be quiet. Both men were wearing hoodies and had pulled them down to

obscure their faces; the darker-skinned man was also wearing a red bandana across his mouth.

When Jennifer screamed, the lighter-skinned man grabbed the gun from the first man and fired a

shot in her direction, instructing her to be quiet. The darker-skinned man demanded, “Give me

everything you’ve got” and started walking around the house collecting items in a plastic garbage

bag. Meanwhile, the lighter-skinned man took Jennifer into the kitchen at gunpoint and instructed

her to undress and perform a sexual act, which Jennifer refused to do. During this time the man’s

hoodie fell away from his face and Jennifer recognized him as Oscar Aguilera, with whom she had

attended middle school. At that point, the darker-skinned man told Aguilera they “didn’t come for

that,” and the men then left with the trash bag, threatening to come back and kill Jennifer if she

told anyone about the robbery. Two other friends who had been sleeping in a back bedroom

escaped out of a window when they heard the commotion, ran down the street to a neighbor’s

house, and called 911.

       At approximately 4:45 a.m. that same day, San Antonio Police Officer Deidra Dawson was

down the street from Jennifer’s house investigating a “suspicious person” call about a young man

in a black t-shirt running down the street ringing doorbells. Dawson saw Rector running down the

sidewalk carrying a plastic trash bag and looking “very stressed out.” Dawson stopped Rector and

asked for his identification, talking to him for about three to four minutes. Rector stated that he

was on his way home from a friend’s house and that the bag was full of clothes. Because Rector

had no outstanding warrants and she did not observe him committing a crime, Dawson released
                                               -2-
                                                                                         04-14-00115-CR


Rector without looking inside the bag; she stated she had no probable cause to search the bag.

About thirty seconds later, Dawson received a call for the robbery at Jennifer’s house about one

block away. Dawson went to the robbery scene and interviewed the witnesses. She broadcast a

description of the suspects, based on her earlier encounter with Rector, but no one was

apprehended that night. Dawson listed Rector as a suspect in her report.

        Several days later, Jennifer decided to make a statement and identified Aguilera as one of

the men who robbed her. Aguilera was arrested but denied involvement in the robbery and denied

knowing Rector. About two weeks later, Rector was arrested on outstanding traffic citations and

was questioned about the robbery. Rector admitted going to Jennifer’s house to buy drugs, but

stated he left before the robbery occurred. Rector also admitted knowing Aguilera and stated that

Aguilera had told him about the robbery.

        Rector was indicted for aggravated robbery involving the use or exhibition of a deadly

weapon, to wit: a firearm. See TEX. PENAL CODE ANN. § 29.03 (West 2011). A jury found Rector

guilty as charged in the indictment, and the trial court sentenced him to twenty years’

imprisonment. Rector now appeals.

                                              ANALYSIS

        Definition of “Beyond a Reasonable Doubt” – Voir Dire

        In his first and second issues, Rector asserts the trial court abused its discretion by

providing the jury panel with a definition of “beyond a reasonable doubt” during voir dire and by

sustaining the State’s objection to defense counsel’s attempt to “correct” the definition. The State

replies that the trial court’s definition did not constitute error and that Rector failed to preserve his

second complaint.

        In discussing the State’s burden to prove every element of the charged offense beyond a

reasonable doubt during his general remarks to the venire panel, the trial court stated,
                                                  -3-
                                                                                         04-14-00115-CR


                   Let’s talk about beyond a reasonable doubt. I’m going to offer up a
           definition in a minute. I stole it from another prosecutor 30 years ago. And the
           reason I did that is because he had a way to define it that I couldn’t say it in [sic]
           better than that. You’re going to get a definition in the Court’s Charge. The
           definition goes something along the lines of, ‘It’s not beyond all doubt but beyond
           a reasonable doubt.’ I’m not sure how helpful that is.

                   My definition that I borrowed is if you go back there in the jury room and
           you think the Defendant is probably guilty, that’s not proof beyond a reasonable
           doubt. If you go back there in the jury room and you’re convinced in your heart
           and in your mind, that is proof beyond a reasonable doubt.

                 All right. That’s the burden. It’s not beyond all doubt. It’s not beyond a
           shadow of a doubt.

(emphasis added).

           Defense counsel objected that the court’s comments were not a proper statement of the

law. The court overruled the objection and continued explaining the meaning of “beyond a

reasonable doubt” by comparing the different burdens of proof, from “preponderance of the

evidence” to “clear and convincing” to “beyond a reasonable doubt,” which the court stressed was

the highest burden. The court finished by repeating that beyond a reasonable doubt is “not proof

beyond all doubt. It is proof that convinces you beyond a reasonable doubt, which says it for

itself.”

           (1) The Trial Court’s Definition of “Beyond a Reasonable Doubt”

           In his first issue on appeal, Rector argues that the italicized portion of the definition was

error because it lowered the State’s burden of proof by suggesting the jury could convict if they

were merely “convinced in [their] heart and [their] mind” rather than convinced by legally

sufficient evidence. All of the cases relied on by Rector involve definitions of “reasonable doubt”

that were included in jury instructions contained in the court’s charge. The function of the court’s

charge is very different from that of the court’s general voir dire, as the jury charge instructs the

jury on the law applicable to the case which the jury is obligated to follow. See Dinkins v. State,


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894 S.W.2d 330, 338 (Tex. Crim. App. 1995). Rector cites no case involving allegedly improper

comments by the trial court or counsel during voir dire, nor any case holding that comments on

the meaning of reasonable doubt during voir dire constitute error. The State also fails to cite any

case addressing allegedly improper comments made by the court or counsel during voir dire, and

relies solely on jury charge cases.

        Rector’s complaint is that the trial court defined “reasonable doubt” as merely what is in

each juror’s “heart and mind,” thereby reducing the State’s burden of proof and constituting

harmful error. In evaluating a complaint about the trial court’s remarks during voir dire, we must

examine the remark within the entire context of the record. Infante v. State, 397 S.W.3d 731, 738

(Tex. App.—San Antonio 2013, no pet.). Here, as noted above, the trial court suggested a

definition of “beyond a reasonable doubt” as being convinced in one’s “heart and mind,” but did

so within the context of its discussion of the various levels of proof in civil and criminal cases.

The court repeatedly stressed that beyond a reasonable doubt is “the highest burden” in our judicial

system. Finally, the court explained that it is “not proof beyond all doubt,” but “[i]t is proof that

convinces you beyond a reasonable doubt, which says it for itself.”

        We disagree that the court’s comments about the meaning of “beyond a reasonable doubt,”

when read in context, were error. In Texas, jurors must decide what “proof beyond a reasonable

doubt” means to them. Murphy v. State, 112 S.W.3d 592, 597 (Tex. Crim. App. 2003). While it

is no longer required that trial courts define “reasonable doubt” for the jury, it is also not prohibited.

Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (overruling that portion of Geesa v.

State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991), which required trial courts to include a

particular instruction in the jury charge defining “beyond a reasonable doubt”). While expressing

its opinion that the better practice is to give no definition of “reasonable doubt” to the jury, the

Paulson court acknowledged that, “the Constitution neither prohibits trial courts from defining
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reasonable doubt nor requires them to do so as a matter of course.” Id. (quoting Victor v. Nebraska,

511 U.S. 1, 5 (1994)). Here, the trial court’s voir dire comments about the meaning of “reasonable

doubt” did not convey the court’s opinion about whether Rector was guilty, did not apply the

burden of proof to the facts of the case, and did not shift or lower the State’s burden of proof. See

Latson v. State, 440 S.W.3d 119, 121 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding

that court’s statement during voir dire that beyond a reasonable doubt is proof that “proves to you

individually kind of in your heart, in your mind that the Defendant is guilty” did not taint the

presumption of innocence); see also Wilkerson v. State, 347 S.W.3d 720, 725-26 (Tex. App.—

Houston [14th Dist.] 2011, pet. ref’d) (rejecting defendant’s argument that court’s explanation to

venire panel that proof beyond a reasonable doubt is “what’s in your mind to be a reasonable

doubt” diminished the State’s burden of proof). Most importantly, the trial court’s remarks during

voir dire did not direct the jurors to follow their “hearts and minds” and ignore the court’s written

instructions in the jury charge. See Latson, 440 S.W.3d at 121. The court’s charge did not contain

the challenged language about “hearts and minds.” The charge simply instructed the jury that the

State had the burden to prove every element of the offense beyond a reasonable doubt and that

“[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that

the prosecution’s proof excludes all ‘reasonable doubt’ concerning the defendant’s guilt.” We

therefore conclude the court’s voir dire comments about the meaning of “beyond a reasonable

doubt” were not error, and even if they were error, Rector has not shown that they affected a

substantial right. See TEX. R. APP. P. 44.2(b).

       (2) Restriction on Defense Counsel’s Discussion of “Beyond a Reasonable Doubt”

       Rector also argues that the trial court deprived him of the opportunity to “correct” the

court’s definition of “beyond a reasonable doubt” during his voir dire of the jury panel. However,

the record reflects that Rector’s counsel was permitted to discuss and contrast the various burdens
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of proof, to give examples of their application, and to stress that “beyond a reasonable doubt” is

the highest burden. Defense counsel further explained that a definition of “beyond a reasonable

doubt” is no longer given because “the Supreme Court has decided that it’s up to each person

individually. I can discuss it with you. I can give you some ideas, but I can’t actually come out

and give you like a litmus test . . . .” Finally, counsel specifically addressed the language used by

the trial court by telling the venire, “So, that’s why when somebody says you got to be convinced

in your heart, in your mind, you see, that’s not beyond a reasonable doubt . . . it’s got to go beyond

that. Just because you feel it powerful, just because it’s something that might inform a lot of your

life, doesn’t make it true.” At that point, the State objected that counsel was misstating the law on

reasonable doubt. The court instructed defense counsel to rephrase and he did so by stating, “You

got to look at the evidence and make sure it’s all there on each element.” Defense counsel then

moved on to another subject. Because defense counsel did not object to having to rephrase his

statements, the error, if any, was not preserved. TEX. R. APP. P. 33.1.

       Access to Exculpatory and Impeachment Evidence

       In his third and fourth issues, Rector complains that the trial court abused its discretion by

improperly denying him access to: (1) potentially exculpatory evidence consisting of the 911 call

and dispatch and the communication logs from the mobile data terminal (“MDT”) in Officer

Dawson’s vehicle at the time she detained Rector; and (2) potential impeachment evidence

consisting of the internal affairs records of the investigating police officers, and the police

interview with Aguilera in which he denies any involvement with Rector. The State replies that

Rector has failed to meet his burden to show a due process violation under Brady v. Maryland,

373 U.S. 83 (1963).

       In April 2013, Rector served a subpoena duces tecum on the San Antonio Police

Department (SAPD) seeking “[a]ny communications involving officers or investigators or
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audio/video recordings in this case; including but not limited to Mobile Data Terminal logs,

conversations between Officers and Dispatchers, 911 telephone calls.” The subpoena also sought

the disciplinary history, including internal affairs reports, for the officers involved in the case and

“witness statements” discoverable by the defense. 2 The City of San Antonio, on behalf of the

SAPD, filed a motion to quash and for an in camera inspection. The court held a pre-trial hearing

on the matter in October 2013. The trial judge stated on the record that he had reviewed the

confidential internal affairs packets produced by the SAPD for the officers involved in Rector’s

case. The court stated it found no exculpatory evidence or evidence relevant to impeachment in

the internal affairs records; it sealed the records and made them part of the record. When defense

counsel asked about the 911 call/dispatch and the MDT communication logs, the court stated they

were not included in the items produced by the SAPD and suggested that Rector urge a subsequent

motion seeking their production; counsel stated he would do so. No further motion or subpoena

pertaining to the 911 call/dispatch and MDT logs was filed by Rector.

        During pretrial proceedings before jury selection commenced on December 4, 2013,

Rector’s counsel stated,

        So, we’ve asked for MDT logs and also 911 dispatch recordings so that we can
        establish that timeline. We believe that’s Brady material because it is reasonably
        likely to be exculpatory . . . The MDT logs from the police vehicle during my
        client’s first stop when he was in custody and also any recordings or notations from
        dispatch at that same time because the officers would have called them and run his
        license . . . So, that would establish the precise timing of when he was stopped and
        if the prosecution can establish a precise time that the offense occurred, it might
        present him with an alibi.

In response to the court’s inquiry as to whether any such communication logs still existed, the

prosecutor replied that an incident detail report was in the State’s open file, but “[o]ther than that,



2
 Rector also filed a Brady motion and a general discovery motion; however, he did not obtain a ruling on those
motions. See Johnson v. State, 172 S.W.3d 6, 18 (Tex. App.—Austin 2005, pet. ref’d).

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no, Your Honor.” The prosecutor further stated that the 911 tapes “are destroyed within a certain

amount of time.” Defense counsel argued that the MDT and dispatch logs must still exist, but the

court ultimately denied Rector’s request for their production.

       During her trial testimony, Officer Dawson stated that she stopped Rector at 4:45 a.m.,

detained him for approximately three to four minutes, and then released him; the robbery call came

in thirty seconds later. When defense counsel stated that Dawson’s report indicates she released

Rector at 4:50 a.m., Dawson agreed and explained the officers use approximations for time.

Finally, when asked whether she “call[ed] in to dispatch or enter[ed] anything in [her] computer

when [she] first come [sic] into contact with the subject,” Dawson responded that she did. Dawson

stated that she would normally do the same when releasing a subject, but there was not time to do

that because the robbery call came in so quickly. Rector did not ask whether Dawson knew if

those logs still existed or renew his request for their production.

       To prevail on his claim of a due process violation under Brady, Rector has the burden to

prove that (i) the State failed to disclose evidence in its possession, (ii) the evidence is favorable

to the defense, and (iii) the evidence is material in that there is a reasonable probability that, had

the evidence been disclosed, the outcome of the trial would have been different. Pena v. State,

353 S.W.3d 797, 809 (Tex. Crim. App. 2011); see Brady, 373 U.S. at 87. “Favorable evidence

includes exculpatory evidence as well as impeachment evidence.” Pena, 353 S.W.3d at 811.

“Exculpatory evidence is that which may justify, excuse, or clear the defendant from alleged guilt,

and impeachment evidence is that which disputes, disparages, denies, or contradicts other

evidence. Id. at 811-12. Evidence is “material” to guilt or punishment if “in light of all the

evidence, it is reasonably probable that the outcome of the trial would have been different had the

prosecutor made a timely disclosure.” Id. at 812. However, “[t]he mere possibility that an item



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of undisclosed information might have helped the defense, or might have affected the outcome of

the trial, does not establish ‘materiality’ in the constitutional sense.” Id.

        Rector has failed to meet each of the three elements necessary to establish a Brady

violation. With respect to the 911 call/dispatch and the MDT logs, Rector has failed to prove they

existed at the time the subpoena was served. See id. at 810 (“Brady and its progeny do not require

prosecuting authorities to disclose exculpatory information to defendants that the State does not

have in its possession and that is not known to exist.”) (quoting Hafdahl v. State, 805 S.W.2d 396,

399 n.3 (Tex. Crim. App. 1990)). As noted, the prosecutor represented that the 911 tapes are

routinely destroyed. Rector failed to inquire of Dawson and the other testifying officer whether

the 911 dispatch and MDT logs still existed and how long such communication logs are maintained

by the SAPD.

        Rector has similarly failed to prove that any of the evidence sought was “favorable” to his

defense or “material” to his guilt/innocence or punishment. As Officer Dawson testified, she

initially responded to a suspicious person call at 4:45 a.m. based on a complaint that a young man

was running down the street ringing doorbells. Other trial evidence established this person was

one of Jennifer’s friends who escaped through a window during the robbery. As the State points

out, at the time Dawson made contact with Rector one block away from Jennifer’s house, she was

already responding to the suspicious person call prompted by the friends’ escape during the

robbery and efforts to call 911. Dawson testified the dispatch for the robbery came in thirty

seconds after she released Rector at approximately 4:50 a.m. Rector has failed to show that the

police dispatch and communication logs, even if they existed, would have provided him with an

alibi based on the timeline of events, or been otherwise favorable to his defense, or were material

in that there is a reasonable probability the trial’s outcome would have been different if the

evidence was produced. Finally, we find no abuse of discretion in the trial court’s ruling that the
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SAPD internal affairs records have no exculpatory or impeachment value with respect to Rector’s

case. See McBride v. State, 838 S.W.2d 248, 250 (Tex. Crim. App. 1992).

       Last, Rector complains that, “according to now-available materials, the State is in

possession of a recorded interview with Oscar Aguilera wherein he denies any knowledge of or

involvement with Lloyd Rector” and asserts its disclosure would have led to a different outcome.

Rector does not explain the nature of the “now-available materials” and there is nothing in the

record before us to support his assertion that the State has, or had at the time of trial, the recorded

interview with Aguilera. In addition, evenly broadly construing Rector’s subpoena as seeking any

recorded statement by Aguilera, he never made this matter known to the trial court. See TEX. R.

APP. P. 33.1. Further, one of the investigating officers testified to substantially the same evidence

by stating that when questioned, Aguilera denied knowing Rector. Rector has not shown any error

or harm with respect to a statement by Aguilera.

                                            CONCLUSION

       Based on the foregoing reasons, we overrule Rector’s issues on appeal and affirm the trial

court’s judgment.


                                                    Rebeca C. Martinez, Justice


Do Not Publish




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