                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00020-CR
         ______________________________


   ANTHONY CARROLL MARSHALL, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 71st Judicial District Court
               Harrison County, Texas
             Trial Court No. 07-0336X




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                    MEMORANDUM OPINION

       A jury found Anthony Carroll Marshall guilty of murder and assessed his punishment at fifty

years' imprisonment and a fine of $10,000.00. Marshall does not challenge the sufficiency of the

evidence. He raises only one issue on appeal, in which he contends the trial court committed

reversible error by making certain comments to the venire panel before the voir-dire examination.

We overrule Marshall's singular point of error and affirm the trial court's judgment.

       Marshall complains of only the trial court's comment that an appellate court does not review

whether it agrees with the jury's verdict. It is necessary, however, that we relate the trial court's

comment in this regard in the context in which it was made, in order to show the trial court's intent

in making the comment, as well as to determine what effect the comment likely had on the venire.

Among other comments not pertinent to this appeal, the trial court made the following statement to

the panelists:

       [S]he is the certified court reporter for this court and it is her job to take down
       everything that is said, and then at the end of a trial if one side or the other appeal the
       case, it goes to an appellate court at Texarkana. The appellate court does not hear the
       trial over again. This is the trial court, the only place you have a trial. The appellate
       court reads the record that Ms. Skinner sends up and they read it to evaluate, to
       review whether any of my rulings were incorrect and so they don't review it to decide
       whether or not they agree with your verdict. And I don't enter a judgment based on
       whether I agree with your verdict. Your verdict is your verdict and basically it is not
       going to be reviewed by anybody. My rulings will be and that is what an appeal is
       about. During this part of the trial, I will have to make rulings at the end about
       whether particular jurors are able to be impartial or not and if any of those rulings are
       not agreed on, that is something that can be appealed at the end of the case.
                So, I am telling you that so that you will know number one, this is a very
       important part of the trial. Most lawyers and I think I agree having been here 20


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       years, and trying cases as the District Attorney for ten before that, jury selection is the
       most important part of the case other than the facts themselves. It is terribly
       important and it depends on all of you in order to get that done, even if you don't
       eventually have to come and sit on a jury starting tomorrow.

       Marshall likens the trial court's comments to part of the trial court's charge to the jury, and

he argues that the portion about reviewing a verdict on appeal is incorrect and constituted

fundamental error because it could have led the potential jurors to believe they could return an unfair

verdict and/or assess a disproportionate punishment (and, by so doing, their verdict would be

unassailable on appeal). We disagree with this argument for several reasons.

       The comments related above are not part of the court's charge to the jury. The trial court's

written jury charges are copied in the record and appear to be without error. See TEX . CODE CRIM .

PROC. ANN . art. 36.14 (Vernon 2007). Marshall makes no attack on the correctness of those written

charges. The comments of the trial court in question here were given as part of the preliminary

qualifying instructions to the venire. The giving of admonitory instructions to the venire before trial

is within the discretion of the trial court. York v. State, 566 S.W.2d 936, 938 (Tex. Crim. App.

[Panel Op.] 1978); Walker v. State, 440 S.W.2d 653, 658 (Tex. Crim. App. 1969). Comments on

the evidence or other remarks by a trial court constitute reversible error only if they are reasonably

calculated to benefit the State or prejudice the defendant's rights. TEX . CODE CRIM . PROC. ANN . art.

38.05 (Vernon 1979); Davis v. State, 651 S.W.2d 787, 789 (Tex. Crim. App. 1983). The remarks

challenged by Marshall are not of that character.




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        Marshall suggests the jurors in this case may have been led by the trial court's preliminary

remarks to believe they were free to render an unfair verdict or punishment, even though not justified

by the facts, because their findings could not be overturned on appeal. Marshall further asserts the

trial court's comments show the trial court had already decided to deny any motion for a directed

verdict, should such a request be made by the defense during the upcoming trial. However, for us

to make either assumption would be to engage in the rankest sort of speculation completely

unwarranted by the record. Indeed, we must presume the jurors obeyed the court's charge, which

expressly required them to base their verdicts solely on the evidence and the law presented to them.

See TEX . CODE CRIM . PROC. ANN . art. 36.14; Schepps v. State, 432 S.W.2d 926, 931 (Tex. Crim.

App. 1968). We find it more likely the jurors based their fifty-year sentence on the nature and

circumstances of the underlying crime, not because of an erroneous conception of appellate review.

        Further, considering the context in which the trial court's remarks were made, we find there

was no error. The trial court was simply explaining to the venire that, because the appellate court

bases its decision on whether the trial court made errors in its rulings, instead of simply deciding that

it disagrees with a jury's verdict, it is very important that the venire speak clearly and audibly in

answering the questions put to them so the court reporter can transcribe their answers and thereby

have a written record to send to the appellate court in case of an appeal. As concerns the trial court's

comment that an appellate court does not review whether it disagrees with a jury's verdict, that

statement is true. No appellate court is allowed to overturn a jury verdict because it disagrees with



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it, but only if the verdict is supported by no evidence or factually insufficient evidence. And we

should not speculate that the potential jurors would read into the court's remark more than what it

plainly said.

        Even if the trial court's remark could be considered error, it certainly was not fundamental

or structural error, and because Marshall made no objection whatsoever to the remark when it was

made, he has not preserved error. See Thomas v. State, 533 S.W.2d 796 (Tex. Crim. App. 1976);

Esquivel v. State, 506 S.W.2d 613, 616 (Tex. Crim. App. 1974); McCary v. State, 477 S.W.2d 624,

629 (Tex. Crim. App. 1972); Carew v. State, 471 S.W.2d 860, 862 (Tex. Crim. App. 1971); Hoang

v. State, 997 S.W.2d 678, 683 (Tex. App.—Texarkana 1999, no pet.).

        For the reasons stated, we affirm the trial court's judgment.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:        May 5, 2008
Date Decided:          May 13, 2008

Do Not Publish




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