                                        In The

                                 Court of Appeals
                      Ninth District of Texas at Beaumont
                                ___________________
                                 NO. 09-11-00618-CR
                                ___________________

     VICTORIA RAYE DOZIER A/K/A VICRORIA RAYE BARNETT,
                         Appellant

                                          V.

                         THE STATE OF TEXAS, Appellee

__________________________________________________________________

              On Appeal from the Criminal District Court
                       Jefferson County, Texas
                       Trial Cause No. 10-09291
__________________________________________________________________

                            MEMORANDUM OPINION

      The State indicted Victoria Raye Dozier1 for murdering Joseph Raymond

Barton. Dozier pled not guilty and claimed that she had acted in self-defense. The

jury found Dozier guilty of murder and sentenced her to fifteen years’

imprisonment.



      1
          Dozier is also known as Vicroria Raye Barnett.
                                           1
      Dozier raises six issues in her appeal. In her first four issues, Dozier

complains about various comments the trial court made in the jury’s presence. In

issue five, Dozier complains that the trial court, outside the jury’s presence, told

Dozier to compose herself and not to “be weeping in front of the jury.” Issue six

concerns the trial court’s exclusion of evidence regarding the significance of one of

Joseph’s tattoos.

      Dozier failed to lodge objections to the various comments she now seeks to

complain about on appeal. Generally, trial counsel is required to preserve error

during the trial to obtain a review of the complaint on appeal, even if the claimed

error is “‘incurable’ or ‘constitutional.’” See Haro v. State, 371 S.W.3d 262, 265

(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Cockrell v. State, 933

S.W.2d 73, 89 (Tex. Crim. App. 1996)); see also Tex. R. App. P. 33.1(a) (requiring

the record to show that the complaint at issue was made known to the trial court

through a timely request, objection or motion to preserve error). However, there

are some types of complaints, categorized as fundamental error, which may be

raised as error on appeal even in the absence of having brought the complaint to

the trial court’s attention during trial. 2 Nevertheless, the Court of Criminal Appeals

      2
       See Tex. R. Evid. 103(d) (authorizing appellate courts to take notice of
fundamental errors affecting substantial rights which have not been preserved for
appeal); Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113
                                          2
has not definitively resolved whether the types of miscellaneous comments at issue

in Dozier’s case rise to a level of fundamental error. See Haro, 371 S.W.3d at 265.

Given the ambiguity regarding whether objections were required to preserve error

with respect to the comments at issue, we will assume, without deciding, that

Dozier’s complaints are reviewable and determine whether the alleged errors

caused egregious harm.

      In her first four issues, Dozier complains about several comments the trial

court made while the jury was present. One of her complaints concerns comments

the trial court made to clarify a question Dozier’s attorney asked a witness about

whether a photograph depicted bruises to the right or left side of Dozier’s body.

Another of Dozier’s arguments is critical of the trial court’s discussion with her

attorney about the relevance of the meaning of one of Joseph’s tattoos to the issues

in dispute. Dozier also argues the trial court erred when it clarified, in the jury’s

presence, that it had not paid an expert to testify, but rather approved

reimbursements for experts when requested.



L.Ed.2d 302 (1991) (noting that fundamental error occurs when certain
constitutional rights are violated, such as the right to counsel, the right to an
impartial judge, the right for there not to be unlawful exclusion of members of the
defendant’s race from the grand jury, the right to represent oneself at trial, or the
right to a public trial).

                                         3
      Generally, judges are prohibited from commenting on the weight of the

evidence in the jury’s presence. Tex. Code Crim. Proc. Ann. art. 38.05 (West

1979) (providing that “the judge shall not discuss or comment upon the weight of

the [evidence] or its bearing in the case, but shall simply decide whether or not it is

admissible”). Although comments by a trial court on the weight of the evidence are

prohibited by the Code of Criminal Procedure, the record shows that Dozier failed

to object to any of the comments at issue, and that she failed to object on the basis

that any specific comment was a comment on the weight of the evidence.

Generally, to preserve error, a defendant must make a timely and specific

objection, motion or request that is sufficient to make the trial court aware of the

matter at issue. See Tex. R. App. P. 33.1(a); Moore v. State, 275 S.W.3d 633, 636

(Tex. App.—Beaumont 2009, no pet.) (noting that the contemporaneous objection

requirement encompasses a complaint about a trial court’s remarks that amount to

a comment on the evidence); Ganther v. State, 187 S.W.3d 641, 650 (Tex. App.—

Houston [14th Dist.] 2006, pet. ref’d) (noting that absent an objection to the trial

court’s comments, a defendant waives error unless the error is fundamental).

      When complaints of error are not preserved by objection or other means of

preserving error, the error is considered to have been waived unless it is

fundamental, meaning that the error creates egregious harm. See Villareal v. State,

                                          4
116 S.W.3d 74, 85 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Egregious

harm is such harm that a defendant is deprived of a fair and impartial trial.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); see also Jasper v.

State, 61 S.W.3d 413, 420-21 (Tex. Crim. App. 2001) (concluding that in the

absence of an objection to the trial court’s comment, complaint about the comment

at issue was waived).

      Because Dozier did not lodge timely objections, with the possible exception

of her claim of fundamental error, her complaints were waived. See Tex. R. App.

P. 33.1(a); Moore, 275 S.W.3d at 636. Nevertheless, after reviewing the record for

fundamental error, in our opinion, the comments and the rulings at issue did not

affect Dozier’s substantial rights. Specifically, none of the comments at issue

implied that Dozier was guilty of the murder. Compare Blue v. State, 41 S.W.3d

129, 132 (Tex. Crim. App. 2000) (plurality op.) (finding fundamental error where

trial court’s comments expressed its view about the defendant’s guilt), with Jasper,

61 S.W.3d at 421 (finding no fundamental error where trial court’s comments were

made to clear up a point of confusion). Because the comments at issue did not

implicate an opinion about Dozier’s guilt, Dozier has not demonstrated that the

trial court’s comments constitute fundamental error or that she was deprived of a

fair trial. We overrule issues one through four.

                                          5
        In issue five, Dozier complains the trial court instructed her, outside the

jury’s presence, to compose herself and not to weep in the presence of the jury.

Generally, trial courts have the discretion to prevent a party or witness from

disrupting the proceedings. See Tex. Gov’t Code Ann. § 21.001(b) (West 2004)

(requiring trial courts to conduct proceedings with dignity and in an orderly and

expeditious manner). Even if we assume the trial court’s request that Dozier regain

her composure was outside the boundaries of exercising proper control of the

proceedings, a view that we do not adopt, Dozier failed to object that the trial

court’s request was improper. In the absence of a timely objection, Dozier’s

complaint about the trial court’s instruction to Dozier was not preserved. See Tex.

R. App. P. 33.1(a); Abrego v. State, 977 S.W.2d 835, 837 (Tex. App.—Fort Worth

1998, pet. ref’d) (failing to object, defendant waived complaint that trial court had

instructed him not to cry during his counsel’s closing argument). We overrule issue

five.

        In issue six, Dozier complains the trial court erred by excluding evidence

about the significance of Joseph’s tattoo. According to Dozier, evidence about the

meaning of Joseph’s tattoo was relevant because the tattoo indicated that he had a

violent past, making it reasonable for her to fear him. When Dozier attempted to

question the State’s expert, Dr. Tommy Brown, about the significance of Joseph’s

                                         6
tattoo, the State objected that the evidence was not relevant. The trial court

excluded the question about the meaning of the tattoo, ruling that evidence

regarding its meaning would not be relevant.

      The State contends that Dozier’s complaint about the question regarding the

tattoo was not preserved because Dozier failed to show what Dr. Brown’s

testimony would have been. Even if the trial court was aware of the general nature

of Dr. Brown’s likely testimony from the context of the discussion about the

evidence, Dozier would still be required to show that excluding testimony about

the meaning of the tattoo was harmful before we would consider reversing her

conviction. See Tex. R. Evid. 103(a)(2).

      Here, Dozier argues that testimony about the meaning of Joseph’s tattoo

showed that Joseph had a violent character and that it was reasonable for her to

fear him. “A defendant in a homicide prosecution who raises the issue of self-

defense may introduce evidence of the victim’s violent character.” Smith v. State,

355 S.W.3d 138, 150 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); see also

Tex. R. Evid. 404(a)(2). “This evidence may consist of opinion or reputation

testimony to prove the victim acted in conformity with his violent nature.” Smith,

355 S.W.3d at 150. “It may also include proof of specific, violent acts of

misconduct to show the reasonableness of the defendant’s fear of danger, or to

                                           7
show that the victim was the first aggressor.” Id. (citing Torres v. State, 71 S.W.3d

758, 760 (Tex. Crim. App. 2002)).

      “Exclusion of evidence does not result in reversible error unless the

exclusion affects a substantial right of the defendant.” Id. at 151; see also Tex. R.

App. P. 44.2(b). “‘Substantial rights are affected when the error has a substantial

and injurious effect or influence in determining the jury’s verdict.’” Walters v.

State, 247 S.W.3d 204, 218 (Tex. Crim. App. 2007) (citing Johnson v. State, 43

S.W.3d 1, 4 (Tex. Crim. App. 2001)). In deciding whether a defendant’s

substantial rights were affected by a trial court’s exclusion of relevant testimony,

we review everything in the record, including any testimony or physical evidence

admitted for the jury’s consideration, the nature of the evidence supporting the

verdict, the character of the alleged error, and evaluate how the excluded evidence

should be considered in connection with other evidence in the case. Smith, 355

S.W.3d at 151.

      While Dozier complains on appeal that excluding testimony about the

meaning of the tattoo prevented her from presenting her defense, Dozier testified

during the trial that Joseph told her about the meaning of his tattoo and she testified

about what he told her. There was also other evidence at trial that Dozier was a

violent person. In the altercation leading to Joseph’s death, the record established

                                          8
that Dozier received significant bruises. In addition to Dozier’s testimony about the

injuries Joseph inflicted on her, Dozier explained that she was afraid of Joseph

because he told her that his tattoo meant that he had killed someone. Thus,

assuming that Dr. Brown would have given a similar explanation about the

meaning of Joseph’s tattoo, Dr. Brown’s testimony would have been cumulative of

Dozier’s testimony about the meaning of Joseph’s tattoo. See Mosley v. State, 983

S.W.2d 249, 258 (Tex. Crim. App. 1998) (op. on reh’g) (explaining that the

erroneous exclusion of evidence similar to other evidence that was offered “may,

under some circumstances, mitigate against the harm [the defendant] would have

otherwise suffered”).

      Additionally, a witness who employed Dozier and Joseph to work on her

home testified that she saw Joseph lose his temper with Dozier nearly every day

while they worked together building a sunroom. This witness also testified Joseph

told her that he had a hard time controlling his anger. Another witness, who

employed Joseph for about three years, testified that Joseph had a reputation for

being a violent person. Thus, assuming that Dr. Brown would have testified that

the tattoo meant that Joseph had a violent past, that testimony would have been

cumulative of other evidence that established Joseph’s reputation for violence. See

id.

                                         9
      On the other hand, there is substantial evidence that Dozier was guilty.

Dozier, who testified, did not dispute the fact that she shot Joseph. Dr. Brown

testified that Joseph suffered five gunshot wounds, two of which entered from his

back. According to Dr. Brown, Joseph received one of the wounds to his back

when he was bent over.

      Having considered the entire record, we hold that excluding the question to

Dr. Brown about the tattoo did not seriously undermine the jury’s ability to

properly and fairly evaluate Dozier’s claim of self-defense. Additional testimony

about the meaning of the tattoo would have added nothing material to the existing

proof that Joseph had a violent character and that Dozier feared him. Because the

error, if any, in excluding the testimony did not affect Dozier’s substantial rights,

we overrule issue six. See Tex. R. App. P. 44.2(b).

      Having overruled all of Dozier’s issues, the trial court’s judgment is

affirmed.

      AFFIRMED.

                                              ___________________________
                                                     HOLLIS HORTON
                                                          Justice
Submitted on November 6, 2012
Opinion Delivered February 13, 2013
Do Not Publish

Before McKeithen, C.J., Kreger, and Horton, JJ.
                                         10
