
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-05-263 CV

____________________


IN RE:  THE COMMITMENT OF DONALD LEE BARBEE




On Appeal from the 221st District Court
Montgomery County, Texas

Trial Cause No. 04-08-06342-CV




OPINION 
	A jury determined that Donald Barbee was a sexually violent predator under Texas
law.  See Tex. Health & Safety Code Ann. §§ 841.001-.147 (Vernon 2003 & Supp.
2005).  The jury found that Barbee suffers from a behavioral abnormality making him likely
to engage in a predatory act of sexual violence and that he has serious difficulty controlling
his sexually violent behavior.  Barbee presents five issues in his appeal from the judgment
and order of civil commitment.  We find no error and affirm the judgment. 


Legal and Factual Sufficiency

	In issues one through three, Barbee challenges the legal and factual sufficiency of the
evidence supporting the jury's verdict.  The Sexually Violent Predator Act requires the State
to prove beyond a reasonable doubt that a person is a sexually violent predator.  See Tex.
Health & Safety Code Ann. § 841.062 (Vernon 2003).  Because the State has the burden
of proof that is employed in criminal cases, we use the appellate standard of review applied
in criminal cases for legal sufficiency of the evidence.  See In re Commitment of Mullens, 92
S.W.3d 881, 885 (Tex. App. - Beaumont 2003, pet. denied) (citing Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).  For legal sufficiency, we review all
of the evidence in a light most favorable to the verdict.  Id.  Here, we must review the
evidence at trial to decide if a rational jury could have found, beyond a reasonable doubt, that
Barbee has serious difficulty in controlling his behavior.  
 We will also apply the factual sufficiency standard applied in criminal cases.  In a
factual sufficiency review in a criminal case, we consider all of the evidence in a neutral light
and determine whether evidence supporting "the verdict is too weak to support the finding
of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that
the beyond-a-reasonable-doubt standard could not have been met."  Threadgill v. State, 146
S.W.3d 654, 664 (Tex. Crim. App. 2004); see also Zuniga v. State, 144 S.W.3d 477, 484-85
(Tex. Crim. App. 2004). 
 To meet its evidentiary burden, the State offered the testimony of Sheri Gaines, M.D.,
Charles Woodrick, Ph.D., and Donald Barbee.  Dr. Gaines is a board-certified psychiatrist. 
She testified that she met with Barbee in November 2004, and interviewed him to evaluate
whether in her opinion he is a sexually violent predator.  Dr. Gaines also reviewed various
criminal records, parole board records, Barbee's deposition testimony taken in the civil
commitment proceeding, and records from the sex offender treatment program in which
Barbee participated while in prison.  Dr. Gaines diagnosed Mr. Barbee as suffering from
pedophilia, substance dependence, and an antisocial personality disorder.  Dr. Gaines
testified that Barbee "does have a behavioral abnormality, and he is likely to reoffend."  Dr.
Gaines testified that Barbee will have difficulty controlling his sexual urges, and that his
behavioral abnormality makes him likely to engage in a predatory act of sexual violence. 
Barbee's attorney did not object to her testimony at trial. 
	The State then called a psychologist, Dr. Charles Woodrick.  Dr. Woodrick
interviewed Mr. Barbee on April 19, 2004 for approximately one hour, reviewed various
records, administered various psychological tests, and determined that Barbee suffered from
an antisocial personality disorder and pedophilia.  Dr. Woodrick testified these disorders are
behavioral abnormalities that made Barbee likely to reoffend.  Dr. Woodrick testified that
as a clinician, separate from the psychological tests, he believes that Barbee is likely to
reoffend.  According to Dr. Woodrick, two of the psychological tests he administered also
showed that Barbee had a moderate risk of recidivism.  Barbee lodged no objections at trial
to Dr. Woodrick's testimony. 
	With respect to the State's evidence of prior convictions, the State introduced, without
objection, the records of the Texas Department of Criminal Justice.  The State also
introduced portions of Barbee's deposition testimony, in which he admitted he pled guilty
to four counts of aggravated sexual assault of a child.  Barbee further admitted to more than
four instances of criminal conduct involving sexual assault of children.  The Sexually Violent
Predator Act requires that there be evidence of more than one prior conviction of a sexually
violent offense.  Tex. Health & Safety Code Ann. § 841.003(b) (Vernon 2003).
	The jury also heard Barbee's deposition testimony in which he testified that he did not
need to avoid living with children.  Although in his deposition Barbee expressed remorse for
his crimes, the State also introduced Barbee's admission in response to the State's requests
for admission that he did not think that his sexual assaults affected his victims' lives.	Barbee called three witnesses in his defense.  Barbee's first witness was his mother,
who testified that it surprised her to hear that the State charged her son with aggravated
sexual assault of several children.  She testified that Barbee expressed remorse for his crimes.
Barbee's mother testified that two of Barbee's siblings would be willing to help Barbee find
a job and a place to live.  She testified that she did not believe that Barbee is likely to commit
offenses abusing children in the future.    
 Barbee then called Dr. Tim Branaman, a psychologist, who holds a board certification
in forensic psychology.  Dr. Branaman testified that although he somewhat agreed on
Barbee's diagnosis of pedophilia, he disagreed that Barbee had an antisocial personality
disorder and substance dependence.  Dr. Branaman testified that a pedophilia diagnosis does
not necessarily mean that the person will reoffend.  In forming his opinions, Dr. Branaman
interviewed Barbee, administered a psychological test, and reviewed records and Barbee's
other psychological tests.  Dr. Branaman testified that the psychological test he administered
did not show that Barbee had a psychopathetic personality, and that although Barbee had
shown past signs of an antisocial personality, Barbee did not meet the diagnostic criteria for
antisocial personality disorder.  Dr. Branaman also interviewed Barbee.  Dr. Branaman
testified that based on the psychological test he administered, Barbee had a low to moderate
risk of reoffending with respect to future sexual offenses.  Dr. Branaman testified that more
likely than not, Barbee would fall into the eighty-four percent of men who scored similarly
on these tests who do not reoffend.  Dr. Branaman testified that two factors mitigated against
the possibility of Barbee's committing future sexual offenses.  First, Barbee had sustained
a former marriage for more than two years, and, second, he had shown remorse.
	On cross-examination by the State's attorney, Dr. Branaman admitted that he testified
for defendants in civil commitment cases ninety percent of the time, and that of all the people 
he had evaluated in similar civil commitment cases, only one met the criteria for
commitment.  He further agreed that Barbee was less forthcoming in his interview than the
average male.
	The jury could have believed that Dr. Branaman attempted to avoid answering a
question regarding whether pedophilia is a behavioral abnormality, and that he attempted to
avoid agreeing that past behavior is a good indicator of future behavior.  Dr. Branaman
seemed to discount a letter to the parole board from one of Barbee's victims that she had
been Barbee's "sex slave" for several years.  Dr. Branaman stated, "That specific act, in and
of itself, was not a specific concern in terms of forming an opinion."  The jury might also
have concluded that Dr. Branaman was evasive regarding whether Barbee would reoffend,
but Dr. Branaman's deposition testimony showed that he admitted, "I would have to agree
that there is more than a mere possibility" that Barbee will reoffend. 	
	The jury also might have believed that Dr. Branaman had only a vague recollection
of the content of Barbee's records.  For example, Dr. Branaman was equivocal at trial
concerning whether Barbee's  records showed that Barbee had vaginal intercourse with some
of his victims, but on being shown the records he admittedly reviewed,  he agreed they did
show that Barbee had vaginal intercourse with minors.  Dr. Branaman's recollection about
whether Barbee admitted that he had engaged in behavior to groom one of his victims was
vague at trial.  But when Dr. Branaman's deposition was used to refresh his recollection, he
conceded that Barbee had admitted grooming a victim for six months.   
	As his last witness, Barbee called Dr. Antoinette McGarrahan, a psychologist.  Dr.
McGarrahan reviewed Barbee's records and met with him in October 2004.  Dr. McGarrahan
testified that Barbee was cooperative when she interviewed him.  Dr. McGarrahan testified
that her testing showed that Barbee was a low risk for psychopathic behaviors, and was a low
risk for sexual recidivism.  At the time of trial, Dr. McGarrahan noted that Barbee had
completed two phases of a sex offender treatment program in prison, and his progress was
excellent.  Dr. McGarrahan also testified that she did not believe Barbee had an antisocial
personality disorder, and that Barbee does not suffer from a behavioral abnormality that
makes him likely to reoffend.   
	On cross-examination, Dr. McGarrahan testified she diagnosed Barbee with
pedophilia, polysubstance dependence, and adult antisocial behavior.  In cases involving civil
commitments, Dr. McGarrahan said that she testifies for the defendant eighty-five percent
of the time.  Dr. McGarrahan testified that pedophilia can be a behavioral abnormality
sometimes, but was not in Barbee's case because the definition also requires that the person
be likely to engage in predatory acts of sexual violence.  Barbee, according to Dr.
McGarrahan, does not meet that criteria.  However, she agreed that it is possible that Barbee
might reoffend.  Dr. McGarrahan agreed that evidence in the records showed that Barbee
groomed his victims.  As of the trial date, Dr. McGarrahan indicated that Barbee had not
completed his treatment program and that as of the time she interviewed him, he still did not
fully appreciate the impact of his actions on his victims.  Dr. McGarrahan also questioned
whether the records she reviewed indicated that Barbee's conduct with his victims included
intercourse, but admitted when shown the records that they did mention penetration, and that
a count in one of the indictments to which Barbee pled guilty was for sexual assault by
penetration.   
	Dr. McGarrahan agreed that if Barbee's adolescent conduct was consistent with a
conduct disorder, she would raise Barbee's risk of reoffending to a moderate risk.  Dr.
McGarrahan agreed that one's view of Barbee's adolescent history called for a subjective
judgment about whether his past behavior showed a persistent, repetitive pattern of antisocial
behavior.  
	A jury is entitled to draw reasonable inferences from basic facts to determine ultimate
fact issues.  Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000).  In reviewing the
sufficiency of the evidence, we consider matters including the nature of the psychiatric
disorder and the severity of the abnormality.  Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct.
867, 871, 151 L.Ed.2d 856 (2002); Mullens, 92 S.W.3d at 885.  The evidence is undisputed
that Barbee committed multiple offenses against multiple victims, and that his misconduct
occurred frequently over a period of years.  While all of the experts agreed that Barbee
suffered from pedophilia, none of them testified that Barbee was cured or that pedophilia is
curable.   
	Although two of the expert witnesses testified that the risk of Barbee's reoffending
is low, other experts assessed the risk that he might reoffend as moderate.  The jury could
also consider Barbee's testimony that, with respect to each offense, he knew he was doing
something wrong yet chose to proceed.  In evaluating whether Barbee might reoffend, the
jury could have considered that the testimony showed that Barbee still does not fully
appreciate his conduct's impact on his victims.  A jury may resolve conflicts and
contradictions in the evidence by believing all, part, or none of a witness's testimony. 
Mullens, 92 S.W.3d at 887.  
	Barbee argues that we should disregard the testimony of Dr. Gaines and Dr. Woodrick
that Barbee suffered from a behavioral abnormality.  Barbee also argues he did not need to
object to conclusory or speculative testimony because it amounts to no evidence, or factually
insufficient evidence, to support the jury's verdict.  
	As support for his argument, Barbee cites Coastal Transport Co., Inc. v. Crown
Central Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004).  Under the facts and
circumstances presented here, we do not believe that Coastal's preservation of error
standards apply.  In Coastal, the Texas Supreme Court reviewed the reliability of a trucking-safety expert who testified that a defendant's conduct involved a high degree of risk; that the
defendant had an actual awareness of the risk; and that the defendant nevertheless proceeded
with conscious indifference to the safety of others.  Id. at 231.  The Court held that no
objection is necessary to preserve error when the evidence in the record demonstrates that
the expert's opinion is not probative on its face.  Id. at 233.
	Even though the Coastal Court did not require an objection to preserve error in view
of the expert's testimony and the record, the Court specifically stated that when the challenge
to the reliability of the expert requires the court to examine the expert's underlying
methodology, technique, or foundational data, a timely objection  is required "so that the trial
court has the opportunity to conduct this analysis."  Id.  Thus, when the complaint concerns
the foundational data used or relied upon by the expert, a party must present a timely
objection to the trial court to preserve any complaint for appeal.  Tex. R. Evid.103; Tex. R.
App. P. 33.1; see Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 806-07 (Tex.
2002); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). 
	The record here shows that Dr. Gaines and Dr. Woodrick were licensed in their
respective fields, both interviewed Barbee, and both reviewed Barbee's records.  These
records included material from Barbee's sex offender treatment program.  Dr. Woodrick
administered the Hare Psychopathy Checklist-Revised version, the MSOST-R, and the Static
'99, which are three actuarial tests he used to assist in his determination of Barbee's risk of
reoffending.  Dr. Woodrick explained how Barbee's scores on these tests were consistent
with his opinion that Barbee presents a moderate risk of reoffending.  Dr. Woodrick also
stated that his opinion in Barbee's case is consistent with his professional training. 
 Barbee complains that Dr. Gaines and Dr. Woodrick did not explain why Barbee was
predisposed to commit acts of sexual violence, that Dr. Woodrick did not explain the basis
of his clinical judgment, and that a court should not rely on the bare opinion of an expert. 
Additionally, Barbee argues that in looking at the testimony as a whole, the testimony of his
experts, Dr. Branaman and Dr. McGarrahan proved that Barbee was unlikely to reoffend. 
Therefore, Barbee concludes that the State did not carry its burden of proving that Barbee
suffers from a behavior abnormality that makes him likely to engage in a predatory act of
sexual violence.    
	Evaluating the admissibility of Dr. Gaines' and Dr. Woodrick's testimony would
require that we investigate the foundational data that they used to express an opinion that
Barbee is likely to reoffend.  Generally, the most appropriate manner to allow the trial court
to consider this type of objection is a pre-trial objection to the expert's reliability.  Ellis, 971
S.W.2d at 412 (Gonzalez, J., concurring).  When the basis of the complaint is about the
foundational data used or relied upon by the expert, a party must present a timely objection
to the trial court to preserve his complaint for appeal.  Tex. R. Evid.103; Tex. R. App. P.
33.1; see Kraft, 77 S.W.3d at 806-07; Ellis, 971 S.W.2d at 409.  We hold that objections
were necessary to preserve the complaints made to Drs. Gaines' and Woodrick's testimony. 

	Since the jury heard Dr. Gaines' and Dr. Woodrick's testimony without any objection
to it, they were free to believe or disbelieve it, and they chose to believe it.  Having carefully
reviewed the record, we find the evidence legally sufficient under the relevant standards of
review to support the jury's findings.  We also find the evidence factually sufficient under
the relevant factual sufficiency standards of review to support the jury's verdict.  Appellant's
issues one, two, and three are overruled.  
Voir Dire

	In his fourth and fifth issues, Barbee complains of error that he alleges occurred
during the questioning of prospective jurors.  In issue four, Barbee argues the trial court
abused its discretion by preventing him from learning whether jurors were biased and
whether they could listen to evidence detailing Barbee's past convictions.  The State
contends that the trial court properly refused to allow these questions because they sought 
improper commitments from the prospective jurors.  In issue five, Barbee complains the trial
judge made improper comments during voir dire in the presence of the prospective jurors. 
Barbee complains the court improperly controlled  his attorney's questions to juror six, juror
ten, and juror twenty, and in addition improperly controlled a general question to the array. 
	During the State's voir dire, juror six commented that if Barbee had multiple
convictions, that would "explain everything."  Juror six then stated that he could wait and
listen to all the evidence before making up his mind.  Afterwards, Barbee's attorney posed
several questions to juror six relating to juror six's response to the State's questions, as
follows:
	[Barbee's counsel]: I believe you stated that you could not listen to that kind
of evidence and be a fair and impartial juror.  Could you?

	[Juror six]: No, that's not what I stated.
 
	[Barbee's counsel]: Okay.

	[Juror six]: I stated that if he had multiple convictions, that I might not be able
to.

	[Barbee's counsel]: Okay.  If it's more than two convictions?

	[Juror six]: Yes.  Yeah, something like that.

	[Barbee's counsel]: Huh?

	[Juror six]: Something like that.

	[Barbee's counsel]: That would be enough for you not to be able to be a fair
and impartial juror?

	[State's attorney]: I'm going to object to that question, Your Honor.  He's
asking for a comment on the weight of the evidence.

	[The Court, addressing Barbee's counsel]: Sustained.  . . . [Y]ou know better
than that.  Let's move on. 

	[Barbee's counsel]: All right.

	[The Court, addressing Barbee's counsel]: You've been doing this for 30 some
odd years.  You ought to have a real good idea of what's --

	[Barbee's counsel]: I do, Your Honor.

	[The Court]: All right.  Let's move on.  I'm not going to tolerate it.  

	[Barbee's counsel]: I'll make the general question again: Who could not be a
fair and impartial juror if the evidence showed that the crimes for which Mr.
Barbee was convicted involved children of tender age?

	[The Court, addressing Barbee's counsel]: . . . [Y]ou are now asking them, if
they hear evidence that he has been convicted, is that going to influence them.

	[Barbee's counsel]: No, Your Honor.

	[The Court]: Yes, sir, you certainly are.

	[Barbee's counsel]: If they can be --

	[The Court, addressing Barbee's counsel]: I'm telling you, you are not going
to examine this panel in such a fashion as that.  Now move on and stop trying
to get them to commit to your way of thinking so you can quash this entire
panel.  And I make -- better make it clear to you.

	[Barbee's counsel]: Yes, Your Honor.  And I accept your ruling.  I accept your
ruling.

	During voir dire, juror ten indicated that she could not sit and listen to the evidence
if the evidence shows that "he was convicted of molesting children."  Barbee's attorney later
exercised one of his peremptory strikes on juror number six, and the court struck juror ten
per the agreement of the parties.
	Barbee also complains about the trial court's control over his questioning of juror
number twenty, and about a follow-up question his attorney asked the jury panel.  Barbee
posed the following general questions:
	[Barbee's counsel]: What about, how many of you have the belief that, "Once
a sexual offender, always a sexual offender"?  "If he did it in the past, he'll do
it in the future"?
	. . . . 
 
	[Juror twenty]:  If he's already been convicted multiple times, not just once,
but if he's been convicted more than once already, then it's done; he's going
to do it again.

	[Barbee's counsel]: So, you wouldn't need to listen to all the evidence; is that
correct?

	[Juror twenty]:  If he's already --if he's --if there's been a --in a case, if there's
been a sexual offender that's been convicted more than once, then, as far as
I'm concerned, he needs to be put away for good.

	[The Court]: Again, . . . you are asking this panel to commit to you which kind
of evidence will have the greatest influence on them and which will not.  So,
again, I'm telling you I'm not going to permit you to do that.  Throw out some
kind of statement about what kind of evidence and then you ask them what
their conclusion would be if they heard something like that.  And that is
improper.  You cannot do that.  You will not do that.

	[Barbee's counsel]: All right.  Anybody else?  Somebody else raised their --
their number.

	[State's attorney]: Your honor, I'm going to have to object.  He just asked if
anybody else felt the same way.

	[The Court]: Sustained.

	[Barbee's counsel]: I have no further questions.

The State subsequently agreed with Barbee's motion to strike juror twenty for cause.  

	Barbee also complains about comments the judge made during voir dire.  During
Barbee's attorney's voir dire, the court interrupted his questioning and stated, "I see what
you're trying to do, [Counsel]; and I know what you're trying to do.  You're trying to bust
this entire panel."  The attorney denied the court's assertion, and stated, "[T]hey themselves,
have been very honest so far."  The court responded, "Yeah.  And I want you to be honest." 
Later, the trial court interrupted Mr. Barbee's attorney and stated "I'm telling you, you are
not going to examine this panel in such a fashion as that.  Now move on and stop trying to
get them to commit to your way of thinking so you can quash this entire panel."  Barbee
argues that the court's comments were prejudicial because they questioned the honesty of his
attorney, and suggested bad faith.  
	In issue four, Barbee complains that the trial court improperly limited his questioning
of certain jurors.  Under Texas law, bias or prejudice of a prospective juror for or against a
party disqualifies the prospective juror from serving on the jury.  See Tex. Gov't Code Ann.
§ 62.105(4) (Vernon 2005). Thus, one purpose of voir dire is to find biased jurors, and
eliminate them from the jury panel.  	
	In reviewing complaints regarding voir dire, we consider the entire examination of the
jury panel, and not just the answers of individual jurors.  Cortez v. HCCI - San Antonio, Inc.,
159 S.W.3d 87, 93-94 (Tex. 2005). "[V]oir dire examination is largely within the sound
discretion of the trial judge and . . . broad latitude is allowed for examination."  Id. at 92.  
	When the voir dire includes a preview of the evidence, a trial court does not abuse its
discretion when "refusing to allow questions that seek to determine the weight to be given
(or not to be given) a particular fact or set of relevant facts."  Hyundai Motor Co. v. Vasquez,
49 Tex. Sup. Ct. J. 420, 2006 WL 572207, at *5 (Tex. March 10, 2006) (not yet released for
publication, subject to revision or withdrawal).  Whether an individual question posed to a
panel of potential jurors focuses on bias or prejudice, or is a preview of evidence, is
sometimes difficult to discern from the trial's transcript.  Id.  Generally, the "trial judge is in
a better position to evaluate the reasonableness of both aspects -- the question and the
answer."  Id.  "When the trial court determines that a proffered question's substance is
confusing or seeks to elicit a pre-commitment from the jury, counsel should propose a
different question or specific area of inquiry to preserve error on the desired line of inquiry;
absent such an effort, the trial court is not required to formulate the question."  Id. at *8.   
	Here, the voir dire previewed the fact that Barbee had sexually assaulted children. 
The substance of the questions at issue either relate directly to a preview of a juror's attitude
about Barbee, or elicit a juror's response to a general question after exposing the juror to the
fact that Barbee had prior criminal convictions for sexual crimes.  We hold that the questions
about which Barbee complains preview the fact that Barbee had prior convictions for crimes
involving children.
	We next consider whether the questions posed by Barbee's attorney sought to detect
the weight that a juror might give to Barbee's prior convictions for sexual offenses against
children.  During voir dire, several jurors expressed reservation regarding whether they could
be  fair and impartial if the evidence showed that Barbee had been convicted of multiple prior
convictions for sexual assault of children.  
	A skillful advocate would find this information useful in striking the jury, and
naturally Barbee's attorney sought to ask questions designed to detect how different jurors
might weigh the fact that Barbee had prior criminal convictions.  The record shows that the
jurors understood the substance of the questions to relate to whether they could be fair to
Barbee, given his previewed record of past convictions.  We find that the questions at issue
were directed at determining the weight that jurors might place on Barbee's prior
convictions.  Under these circumstances, the trial court has the discretion to prohibit
improper questions although it cannot foreclose all inquiry about a relevant topic.  Vasquez,
2006 WL 572207, at *8. 
	Finally, we address whether Barbee properly preserved any alleged error in the trial
court's rulings regarding his questions. On being restricted in questioning, the questioner
must propose a different question or articulate a specific area of inquiry.  Id.  We find that
with respect to the voir dire questions that the trial judge foreclosed, Barbee failed to
preserve any error.  Barbee's counsel never requested that the trial judge permit him to pose
any alternate questions to the jury panel.  Absent the questioner's proposing a different
question, or being foreclosed completely by the trial court from posing a different question
on the same topic, nothing is preserved for appellate review.  
	Because Barbee's counsel did not propose alternative questions, or articulate a desired
line of inquiry, we cannot know whether the trial judge would have allowed proper questions
that probed whether potential jurors had  preconceived biases or prejudices that disqualified
them from jury service here.  The purpose of the rule is to allow the trial judge the
opportunity to permit a properly phrased question or line of questions during voir dire.  On
this record, we hold the trial court's rulings limiting the voir dire were within its discretion,
and that no error in its exercise of that discretion was preserved.  We overrule issue number
four.
Conduct/Comments of Trial Judge

	In his fifth issue, Barbee contends the trial court  demonstrated bias in interrupting his
voir dire, accusing him of trying to bust the panel, and scolding him in the presence of the
potential jurors.  We review improper comments of a trial judge as a question of law.  Dow
Chemical Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001).  A trial court has great discretion
in the manner it conducts a trial, and possesses "the authority to express itself in exercising
this broad discretion."  Id., 240-41.  The complaining party first must show the comments
were improper, and then show that the improper comments prejudiced the complaining party. 
Metzger v. Sebek, 892 S.W.2d 20, 39 (Tex. App. - Houston [1st Dist.] 1994, writ denied). 
To preserve any error on appeal, a party must object when the comment occurs and request
an instruction unless proper instruction cannot render the comment harmless.  Francis, 46
S.W.3d at 241. 
	Generally, Texas law imputes good faith to a trial judge's judicial actions in
controlling a trial.  Schroeder v. Brandon, 141 Tex. 319, 172 S.W.2d 488, 491 (1943).  We
have carefully examined the record and find four occasions during voir dire when the trial
court interrupted Barbee's counsel.  On two of these occasions, the trial court interrupted
even though the State had not objected to Barbee's questions, and on two occasions the
interruptions relate to the State's objections to Barbee's questions.  When the trial court
interrupted without a prior objection by the State, the record shows that the trial court sought
clarifications to questions that it considered potentially confusing.    
	On the occasions when the interruptions were related to objections posed by the State,
the trial court sustained the State's objections in both instances.  The judge's comments
included the suggestion that a question was improper, because it served to preview the jurors'
attitudes about how they might weigh evidence of Barbee's prior criminal convictions. 
When the trial court sustained the other objection by State's counsel, it did so without
comment. 
	A trial court "may properly intervene . . . to expedite the trial, and to prevent what it
considers to be a waste of time."  Francis, 46 S.W.3d at 241.  It is also clear to us that during
voir dire, attorneys for the parties may be required to respond to the court's questions about
whether a question is narrowly framed to avoid confusion or questions regarding whether a
question is intended to preview a verdict.  Although it might be wise for a trial court to avoid
engaging in a discussion of how to phrase questions in front of the jury panel, nothing in the
Supreme Court's opinions in Vasquez or Cortez suggests that all discussion between the trial
court and the trial attorneys regarding proper questions must take place outside the panel's
presence.  As a matter of law, we hold that the trial court's interruptions of Barbee's counsel
during voir dire to respond to objections and to clarify the questions posed here do not
demonstrate that the trial court was biased against Barbee or his attorney.
	Barbee's complaints regarding the trial court's comment that Barbee's counsel was
"trying to bust this entire panel," and the trial judge's statement to Barbee's counsel when
it said, "Yeah.  And I want you to be honest" present a more difficult issue.  However, we
note that in Francis, the Texas Supreme Court stated that "'judicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties,
or their cases, ordinarily do not support a bias or partiality challenge.'"  Francis, 46 S.W.3d
at 240 (quoting Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474
(1994)).  
	These comments must also be taken in the context of the entire voir dire examination. 
The complete voir dire record demonstrates that the trial judge properly attempted to clarify
several questions posed by Barbee's attorney. The trial court sought to limit the questioning
of potential jurors in a manner that would otherwise give the parties' attorneys a preview of
jurors' attitudes toward facts later placed in evidence at trial.  The manner in which Barbee's
attorney chose to voir dire the jury required the court's intervention on more than one
occasion.  	
	Barbee cites Metzger v. Sebek, 892 S.W.2d 20 (Tex. App. - Houston [1st Dist.] 1994,
writ denied) for the proposition that the trial court's criticism of his attorney probably
prejudiced the panel.  However, in Metzger, the Court of Appeals overruled complaints
regarding the trial court's comments during the trial.  Id. at 40.  In Metzger, the trial court
addressed one of the attorneys in responding to an objection and said, "don't mislead me
anymore."  Id. at 37.  Also, following another objection, the trial judge told the same attorney
"'think again' if he thought he was going to mislead the lawyers, the judge, and the jurors,
and told [the attorney] that he had tried to 'misrepresent evidence.'"  Id.  The Houston Court
of Appeals determined that these statements by the judge, when viewed with the record as
a whole, constituted no evidence of bias on the part of the trial judge.  Id. at 39. 
	The comments here are more innocuous than those in Metzger.  They do not accuse
Barbee's counsel of dishonesty, and we assume that a judge's comments during voir dire are
made in good faith.  Although we believe it would be wise for trial courts to avoid
speculating before the jury panel on the possible motivations behind attorneys' questions, or
to make comments critical of counsel, the comments complained of here fail to demonstrate
bias on the part of the trial judge.
	Additionally, Barbee did not perfect his complaints regarding the trial court's
statements by promptly objecting to the statements of the court, and requesting an instruction
attempting to cure any curable error.  Francis, 46 S.W.3d at 241.  In summary, finding no
reversible error, we overrule  issue five.  Accordingly, we overrule all of Barbee's issues and
arguments.
	We affirm the judgment and order of the trial court. 
	AFFIRMED. 

								____________________________
									HOLLIS HORTON
										Justice


Submitted on January 17, 2006
Opinion Delivered April 20, 2006
Before Gaultney, Kreger and Horton, JJ.
