                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00024-CR

NATALIE COLE ROCHA,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2007-1142-C1


                          MEMORANDUM OPINION


     Rocha appeals her conviction for first-degree-felony murder. See TEX. PENAL CODE

ANN. § 19.02(b)-(d) (Vernon 2003). We affirm.

     Venire-Panel Examination. In Rocha‖s first issue, she complains of the trial court‖s

examination of the venire panel. Rocha contends that the trial court‖s admonishments

violated the presumption of Rocha‖s innocence and commented on the weight of the

evidence.

     “[T]he presumption of innocence, although not articulated in the” United States

“Constitution, is a basic component of a fair trial under our system of criminal justice.”
Delo v. Lashley, 507 U.S. 272, 278 (1993) (quoting Estelle v. Williams, 425 U.S. 501, 503

(1976)) (alteration added); see Taylor v. Kentucky, 436 U.S. 478, 483-86 (1978); In re

Winship, 397 U.S. 358, 363 (1970); Coffin v. United States, 156 U.S. 432, 453, 458-61 (1895).

“[T]he criminal process presumes that the defendant is innocent until proved guilty.”

Deck v. Missouri, 544 U.S. 622, 630 (2005); accord Coffin at 453; Cummings v. Missouri, 71

U.S. 277, 330 (1867); Walters v. State, 247 S.W.3d 204, 210 (Tex. Crim. App. 2007);

Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994); Cloud v. State, 150 Tex.

Crim. 458, 461, 202 S.W.2d 846, 848 (1947) (op. on reh‖g); Black v. State, 1 Tex. Ct. App.

368, 386-92 (1876). “The presumption operates at the guilt phase of a trial to remind the

jury that the State has the burden of establishing every element of the offense beyond a

reasonable doubt.” Lashley, 507 U.S. at 278 (citing Kentucky v. Whorton, 441 U.S. 786, 789

(1979) (per curiam)). A presumption-of-innocence protects against “a ―genuine danger‖

that the jury will convict based on something other than the State‖s lawful evidence,

proved beyond a reasonable doubt.” Id. (quoting Whorton, 441 U.S. at 789) (internal

quotation marks omitted). “The presumption of innocence is a doctrine that allocates

the burden of proof in criminal trials; it also may serve as an admonishment to the jury

to judge an accused‖s guilt or innocence solely on the evidence adduced at trial and not

on the basis of suspicions that may arise from the fact of his arrest, indictment, or

custody, or from other matters not introduced as proof at trial.” Bell v. Wolfish, 441 U.S.

520, 533 (1979) (citing Taylor at 485). The term “is ―an inaccurate, shorthand description

of the right of the accused to “remain inactive and secure, until the prosecution has

taken up its burden and produced evidence and effected persuasion; . . .” an

Rocha v. State                                                                         Page 2
“assumption” that is indulged in the absence of contrary evidence.‖” Id. (quoting Taylor

at 484 n.12); Miles v. State, 204 S.W.3d 822, 825 (Tex. Crim. App. 2006), cert. denied, 127

S. Ct. 1496 (2007); Madrid v. State, 595 S.W.2d 106, 110 (Tex. Crim. App. [Panel Op.]

1979) (op. on orig. submission).

     Texas Code of Criminal Procedure Article 38.05 prohibits the trial court‖s

commenting on the weight of the evidence by providing that the trial court must not,

“at any stage of the proceeding previous to the return of the verdict, make any remark

calculated to convey to the jury his opinion of the case.” TEX. CODE CRIM. PROC. ANN.

art. 38.05 (Vernon 1979); see Brown v. State, 122 S.W.3d 794, 798-99 (Tex. Crim. App.

2003); Hay v. State, 472 S.W.2d 157, 161 (Tex. Crim. App. 1971); Harlan v. State, 416

S.W.2d 422, 423-24 (Tex. Crim. App. 1967).

     Texas Rule of Appellate Procedure 33.1 generally provides:

        As a prerequisite to presenting a complaint for appellate review, the record
     must show that:
              (1) the complaint was made to the trial court by a timely request,
          objection, or motion . . . and
                 (2) the trial court . . . ruled on the request, objection, or motion . . . .

TEX. R. APP. P. 33.1(a). “The only essential requirement to ensure preservation is a

specific, timely request that is refused by the trial court.” Cruz v. State, 225 S.W.3d 546,

548 (Tex. Crim. App. 2007); accord Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App.

2004). Rule 33.1 is a “‖judge-protecting‖ rule[] of error preservation.” Reyna v. State, 168

S.W.3d 173, 177 (Tex. Crim. App. 2005) (quoting Martinez v. State, 91 S.W.3d 331, 335

(Tex. Crim. App. 2002)). “[T]he party complaining on appeal . . . about a trial court‖s”



Rocha v. State                                                                                  Page 3
ruling “must, at the earliest opportunity, have done everything necessary to bring to the

judge‖s attention the . . . rule or statute in question and its precise and proper

application to the” matter “in question.” Id. (quoting Martinez, 91 S.W.3d at 335-36)

(alterations added).     “Except for complaints involving systemic (or absolute)

requirements, or rights that are waivable only[,] . . . all other complaints, whether

constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule

33.1(a).” Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004) (quoting Mendez v.

State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004)) (bracketed alteration added); see

Cameron v. State, 241 S.W.3d 15, 22 (Tex. Crim. App. 2007); Amador v. State, 221 S.W.3d

666, 671 n.9 (Tex. Crim. App. 2007); Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim.

App. 1993).

     Error pursuant to Code of Criminal Procedure Article 38.05, in particular, is

forfeited by failure to object. See Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App.

1983); Downey v. State, 505 S.W.2d 907, 909 (Tex. Crim. App. 1974); Steese v. State, 170

Tex. Crim. 269, 272-73, 340 S.W.2d 49, 52 (1960); Resendez v. State, 160 S.W.3d 181, 189-90

(Tex. App.—Corpus Christi 2005, no pet.).

     Rocha failed to object to the trial court‖s admonishments at trial. But Rocha argues

that the admonishments “being fundamental error, no objection was required.” (Br. at 9

(citing, e.g., Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op)).) In

Blue v. Texas, the four-judge plurality of the Texas Court of Criminal Appeals held that

“comments of the trial judge, which taint [the] appellant‖s presumption of innocence in

front of the venire, [a]re fundamental error of constitutional dimension and require[] no

Rocha v. State                                                                        Page 4
objection.” Blue, 41 S.W.3d at 132 (plurality op.); see Brumit v. State, 206 S.W.3d 639, 641,

644-45 (Tex. Crim. App. 2006); Sanchez v. State, 120 S.W.3d 359, 366 n.18 (Tex. Crim.

App. 2003). In a concurrence, one judge would have held that a comment on the weight

of the evidence in violation of Article 38.05 can constitute such fundamental error. Blue,

41 S.W.3d at 133, 134-35 (Mansfield, J., concurring); see Sanchez, 120 S.W.3d at 366 n.18.

     “Many . . . admonitory or cautionary instructions are customarily used by criminal

trial judges at the time of the voir dire examination of the jury panel and at various

intervals of a trial to guard against jury misconduct. The giving of such instructions is

largely within the discretion of the court . . . .” Walker v. State, 440 S.W.2d 653, 658 (Tex.

Crim. App. 1969) (internal citation omitted); see Hernandez v. State, 169 Tex. Crim. 418,

421, 334 S.W.2d 299, 301-302 (1960); see generally Green v. State, 934 S.W.2d 92, 106 (Tex.

Crim. App. 1996); Etheridge v. State, 903 S.W.2d 1, 9 (Tex. Crim. App. 1995); Nunfio v.

State, 808 S.W.2d 482, 484 (Tex. Crim. App. 1991).

     Rocha complains of the following admonishments:

     [The defendant] . . . is presumed innocent until the State meets its burden and
     proves the defendant guilty. That presumption of innocence is just that. It is a
     presumption. It does not mean that a defendant in any given criminal trial is
     actually innocent. It simply means that they must be presumed innocent until
     the State satisfies and meets its obligation of proving the defendant guilty.
     ....
     The defendant, if they choose to, never has to lift a finger or say a word, and
     you must still presume them innocent until the State has convinced you
     otherwise.

(Rocha Br. at 7 (quoting 3 R.R. at 12, 15) (emphasis and alterations added by Rocha).)

     Rocha argues, “By repeatedly using the work ―until‖ instead of ―unless,‖ the judge

made it plain to the jury panel that the judge fully expected the State to be able to prove

Rocha v. State                                                                          Page 5
its case.” (Br. at 7.) As Rocha argues, too, “The presumption embodies the fact that the

State has the burden of proof, and that the defendant may remain inactive until that

burden is met.” (Id. at 7-8 (citing Miles, 204 S.W.3d at 825) (emphasis added).)

     In evaluating the trial court‖s admonishments to the venire panel, we consider all of

those admonishments.       See, e.g., Blue, 41 S.W.3d at 130 (plurality op.).      Here, for

example, immediately before the admonishments of which Rocha complains, the trial

court admonished the panel as follows:

     A criminal case in the State of Texas—in fact, in most states—proceeds along
     two possible paths. The first part of the trial, the jury that is actually selected
     will hear facts about the allegations and about the offense charged. That‖s
     called the guilt/innocence phase of the trial. . . . If and when the defendant is
     found guilty, and only if the defendant is found guilty, does a criminal trial
     proceed to the second part of the trial called the punishment phase where the
     jury will determine what the appropriate punishment will be. At the first
     phase of the trial, the one I just described to you, the guilt/innocence phase,
     the State has what is called the burden of proof. They are the ones who have to
     bring forward the evidence in the case and try to convince the jury beyond a
     reasonable doubt of the defendant‖s guilt. The State always has that burden of
     proof at the guilt/innocence phase of the trial. It never shifts to the defendant.
     The defendant in this case or any other criminal case never has to prove
     anything. All they have to do is be there. They don‖t have to say a word.
     They don‖t have to put on any evidence. They don‖t have to do anything
     because it‖s the State‖s responsibility to convince the jury of the defendant‖s
     guilt. These are the same rights that you have if you‖re charged with an
     offense, the same rights that I have, the same rights that we have throughout
     this country based on the constitution of the United States and of our own state
     constitution and our state laws. . . .
          As I have already alluded, the State has the burden of proof . . . .

(3 R.R. at 10-12.)

     Rocha does not show that the trial court‖s admonishments tainted Rocha‖s

presumption of innocence or commented on the evidence by suggesting that the trial




Rocha v. State                                                                        Page 6
court believed that the State would successfully prove the case against Rocha, or that

the trial court abused its discretion in its admonishments. Rocha forfeits her complaint.

     We overrule Rocha‖s first issue.

     Jury Charge. In Rocha‖s second and third issues, she contends that the trial court

erred in its instructions to the jury.

     Texas Code of Criminal Procedure Article 36.19, governing review of charge error,

provides:

         Whenever it appears by the record in any criminal action upon appeal that
     any requirement of Articles 36.14 [or] 36.16 . . . has been disregarded, the
     judgment shall not be reversed unless the error appearing from the record was
     calculated to injure the rights of [the] defendant, or unless it appears from the
     record that the defendant has not had a fair and impartial trial.

TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 2006); see id. art. 36.14 (Vernon 2007), art.

36.16 (Vernon 2006); Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006) (citing

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh‖g). Among the

requirements of Article 36.14 is that the charge must “distinctly set[] forth the law

applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14.

     “Article 36.19 . . . sets” two “standards for reversal; error that was called to the

court‖s attention will lead to reversal if there was some harm to the appellant, but

unobjected-to error calls for reversal only if it was so egregious as to deprive the

appellant of a fair and impartial trial.” Flores v. State, 224 S.W.3d 212, 212-13 (Tex. Crim.

App. 2007); accord Williams v. State, No. AP-74,391, 2008 Tex. Crim. App. LEXIS 692, at

*53 (Tex. Crim. App. June 11, 2008); Oursbourn v. State, No. PD 1687-06, 2008 Tex. Crim.




Rocha v. State                                                                         Page 7
App. LEXIS 686, at *28, *42-43, *48-49 (Tex. Crim. App. June 4, 2008); Almanza, 686

S.W.2d at 171-72.

     Under the latter standard, error may be “regarded as ―fundamental‖—that is to say,

it may subject the conviction to reversal on appeal regardless of whether the appellant

raised an objection to it in the trial court—if the error caused the appellant ―egregious

harm.‖” Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006) (quoting Almanza,

686 S.W.2d at 171, 172). “Errors that result in egregious harm are those that affect ―the

very basis of the case,‖ ―deprive the defendant of a valuable right,‖ or ―vitally affect a

defensive theory.‖” Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005) (quoting

Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)); accord Madden v. State, 242

S.W.3d 504, 513 (Tex. Crim. App. 2007); Almanza at 172.

     In evaluating the harm from charge error, we consider:

     (1) the charge itself;
     (2) the state of the evidence including contested issues and the weight of the
         probative evidence;
     (3) arguments of counsel; and
     (4) any other relevant information revealed by the record of the trial as a
         whole.

Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006) (citing Hutch, 922 S.W.2d at

171); accord Almanza, 686 S.W.2d at 171.

     Guilt-or-Innocence. In Rocha‖s second issue, she complains of the charge in the guilt-

or-innocence phase of trial.




Rocha v. State                                                                       Page 8
     Code of Criminal Procedure Article 36.14 provides:

     [I]n each felony case . . . , the judge shall, before the argument begins, deliver to
     the jury . . . a written charge distinctly setting forth the law applicable to the
     case; not expressing any opinion as to the weight of the evidence, not summing
     up the testimony, discussing the facts or using any argument in his charge
     calculated to arouse the sympathy or excite the passions of the jury. Before
     said charge is read to the jury, the defendant or his counsel shall have a
     reasonable time to examine the same and he shall present his objections thereto
     in writing, distinctly specifying each ground of objection. . . .

TEX. CODE CRIM. PROC. ANN. art. 36.14; see id. art. 38.05.

     Code of Criminal Procedure Article 36.16 provides:

         After the judge shall have received the objections to his main charge,
     together with any special charges offered, he may make such changes in his
     main charge as he may deem proper, and the defendant or his counsel shall
     have the opportunity to present their objections thereto . . . , and thereupon the
     judge shall read his charge to the jury as finally written, together with any
     special charges given, and no further exception or objection shall be required of
     the defendant in order to preserve any objections or exceptions theretofore
     made. . . . The failure of the court to give the defendant or his counsel a
     reasonable time to examine the charge and specify the ground of objection
     shall be subject to review either in the trial court or in the appellate court.

TEX. CODE CRIM. PROC. ANN. art. 36.16.

     In concluding reading from its written charge, the trial court instructed the jury, “―If

you disagree about the evidence, the presiding juror may apply to the Court and have

the court reporter‖s notes read to the jury.‖” (6 R.R. at 133 (quoting I C.R. at 91).)

     The trial court, no longer reading from its written charge, then stated as follows, of

which statement Rocha complains:

     Ladies and gentlemen, I want to talk to you a moment about that last sentence
     there about communicating with the Court and disagreeing with the evidence.
     It is not infrequent that we will get a communication from the jury asking to
     have the transcript of testimony given to you, testimony transcribed by the
     court reporter. I will not be able to comply with that request if you send one


Rocha v. State                                                                           Page 9
     out unless it meets the very stringent and specific terms. The only time you
     can get the court[] reporter‖s notes is if you have a specific disagreement about
     a specific piece of testimony. Let‖s say in this case it concerns one of the bottles
     and you remember one witness saying this, something about it, and you
     remember another witness saying something else. If you tell me what the
     specific disagreement is about the specific point in the trial and point that out
     to me in your request, then and only then can we get that small portion of the
     court reporter‖s notes sent in to you.

(Rocha Br. at 13 (quoting 6 R.R. at 133-34) (bracketed alteration added).)

     In referring to evidence of “one of the bottles,” (see 6 R.R. at 134), the trial court

refers to evidence of three bottles found at the crime scene. A carbonated drink bottle

had the fingerprint of State‖s witness Rory Pullen. The lid of an ammonia bottle had a

mixture of the DNA of Rocha and the victim. The mouth of a bleach bottle had a

mixture of the DNA of Rocha, the victim, and an unknown person.

     Rocha argues:

     First, this portion of the charge was not in writing. Second, the judge
     commented on the weight of the evidence by indicating to the jury his opinion
     that the DNA evidence was important to its decision. Third, there was no
     opportunity for defense counsel to make objections; he did not have an
     opportunity to. Furthermore, in addition to violations of article 36.14, article
     36.16 was violated: “The failure of the court to give the defendant or his
     counsel a reasonable time to examine the charge and specify the ground of
     objection shall be subject to review either in the trial court or in the appellate
     court.”

(Br. at 13-14 (internal citation omitted) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.16));

TEX. CODE CRIM. PROC. ANN. art. 36.14.

     We assume without deciding that, as Rocha argues, the trial court‖s statements

constitute charge error. But we cannot assume, as Rocha argues, that Rocha preserved a

charge objection. We perceive no hindrance to Rocha‖s objecting at the time that the



Rocha v. State                                                                        Page 10
trial court made the statements of which Rocha complains. Accordingly, we evaluate

those statements for egregious harm rather than, as Rocha argues, for some harm.

     As to the entirety of the charge, Rocha argues that what she calls the trial court‖s

“‖oral‖ jury-charge instruction stood out precisely because it was oral.” (Br. at 15.) But

the trial court at the same time instructed the jury on, for example, jury notes and the

responses thereto. Rocha makes no other objection to the guilt-or-innocence charge.

The State argues that the instruction of which Rocha complains was a correct statement

of the law. See TEX. CODE CRIM. PROC. ANN. art. 36.28 (Vernon 2006); Howell v. State, 175

S.W.3d 786, 790-92 (Tex. Crim. App. 2005); Robison v. State, 888 S.W.2d 473, 480-81 (Tex.

Crim. App. 1994); Moore v. State, 874 S.W.2d 671, 673 (Tex. Crim. App. 1994). The trial

court also instructed the jury against considering anything the trial court said as a

comment on the weight of the evidence in the following terms:

         You are instructed that you are not to allow yourselves to be influenced in
     any degree whatsoever by what you may think or surmise the opinion of the
     Court to be. The Court has no authority by word or act to indicate an opinion
     regarding any matter of fact involved in this case, nor to indicate any desire
     respecting the outcome. The Court has not intended to express any opinion
     upon any matter of fact in this case, and if you have observed anything which
     you have interpreted as the Court‖s opinion upon any matter of fact in this
     case, you must wholly disregard it.

(I C.R. at 91; see 6 R.R. at 132-33.)

     As to the trial evidence, Rocha argues that Pullen and another State‖s witness “had

equal access to” the victim, and challenges those witnesses‖ credibility. (Br. at 15.)

Rocha argues that Rocha‖s DNA evidence on two of the bottles “was the only physical

evidence linking [Rocha] to the murder.” (Id.) The State‖s theory of the case was that


Rocha v. State                                                                     Page 11
Pullen‖s fingerprint corroborates that he was at the scene of the crime, and that Rocha‖s

DNA evidence on the cleaner bottles shows that she used them to attempt to clean up

the scene.

     As to the argument of counsel, Rocha points out that the State‖s argument, and

Rocha‖s to a lesser degree, relied on the DNA evidence. The State emphasized the

presence of Rocha‖s DNA evidence and Pullen‖s fingerprint evidence; Rocha

emphasized that the DNA evidence showed the presence of an unknown person.

     As to other evidence, Rocha argues that there is no other relevant evidence. The

State argues that in referring to the bottles, the trial court did not clearly refer to the

incriminating DNA evidence on two of the bottles.

     Rocha did not suffer egregious harm from the trial court‖s suggestion that the jury

might disagree about witness testimony so as to call into question the State‖s evidence.

     We overrule Rocha‖s second issue.

     Punishment. In Rocha‖s third issue, she complains of the charge in the punishment

phase of trial.

     Rocha complains of the following instruction:

     Do not let personal bias, prejudice, sympathy or resentment on your part, or
     any such personal emotion on your part, enter into your deliberations or affect
     your verdict in this case.

(Br. at 18 (quoting C.R. at 97-98); see 7 R.R. at 58.)

     Rocha argues that “it violates the Eighth and Fourteenth Amendments for the jury

to be instructed not to consider sympathy during punishment.” (Br. at 18); see U.S.

CONST. amend. VIII, amend. XIV, § 1. But the United States Supreme Court has held

Rocha v. State                                                                      Page 12
that the jurors need not “be allowed to base the sentencing decision upon the sympathy

they feel for the defendant after hearing his mitigating evidence.” Saffle v. Parks, 494

U.S. 484, 489 (1990); accord Wilson v. State, No. 10-07-00171-CR, 2008 Tex. App. LEXIS

5138, at *8-11 (Tex. App.—Waco July 9, 2008, no pet. h.).

     The trial court did not err in its anti-sympathy instruction. We overrule Rocha‖s

third issue.

     CONCLUSION. Having overruled Rocha‖s issues, we affirm.



                                             TOM GRAY
                                             Chief Justice

Before Chief Justice Gray,
    Justice Vance, and
    Justice Reyna
    (Justice Vance concurs in the judgment with a note) *
Affirmed
Opinion delivered and filed September 24, 2008
Do not publish
[CRPM]


        * “(The Bench Book for Texas Trial Judges sets forth the proper way to qualify a
panel of prospective jurors and introduce the voir dire process in criminal cases. Bench
Book for the Texas Judiciary, Part III, pp. 3-244 – 3-257, Texas Center for the Judiciary
(2004). The trial judge expanded those instructions in this case in a way I do not think
proper. See Carr v. State, 249 S.W.3d 502, 504-05 (Tex. App.—Waco 2007, pet. ref‖d)
(error for the trial judge to speculate why defendant might choose not to testify); Duffey
v. State, 249 S.W.3d 507, 510-11 (Tex. App.—Waco 2007, pet. ref‖d) (same). I would hold
that the instructions beyond the scope of the Bench Book were erroneous and sustain
issue one. I would, however, find the error harmless and affirm the judgment.)”




Rocha v. State                                                                     Page 13
