                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                §
 QUINN CRUZ, JR.,                                               No. 08-08-00213-CR
                                                §
                         Appellant,                                 Appeal from
                                                §
 v.                                                              205th District Court
                                                §
 THE STATE OF TEXAS,                                          of El Paso County, Texas
                                                §
                         Appellee.                              (TC # 20060D00581)
                                                §

                                           OPINION

       Quinn Cruz, Jr. appeals his conviction of capital murder. Prior to trial, the State gave

notice that it would not seek the death penalty. A jury found Appellant guilty of capital murder

and his punishment was automatically set at life imprisonment. See TEX .PENAL CODE ANN . §

12.31 (Vernon Supp. 2009). We reverse and remand for a new punishment hearing.

                                        FACTUAL SUMMARY

       Appellant and the victim, Tonya West, moved into the Crest Apartments on October 18,

2005. Approximately one week later, West left Appellant and moved into another apartment in

the same complex. On the morning of November 18, 2005, Appellant and West had a

conversation in the parking lot about their break-up. Several residents heard a gunshot and a

woman scream and saw West attempting to get away from Appellant. The witnesses saw

Appellant following her through the parking lot while firing a weapon at her at close range. One

resident who rushed to West’s side, asked if she knew who shot her, and she replied, “Quinn Cru

--.” West died later at the hospital.

       One witness testified that Appellant calmly walked away. Another witness, James
Thomas, encountered Appellant as he left the scene and asked him what was going on.

Appellant replied, “You better get over there, some serious shit just went down over there.”

Appellant then said he had to go. Later that same day, Appellant called the police and said he

had done something horrible and wanted to turn himself into the police. He told the officer that

he would go back to the scene and turn himself in. In a subsequent call to police, Appellant said

he wanted to turn himself in, but he was afraid he would be shot. After being reassured he would

not be harmed, Appellant told the detective that he was at a car wash near the apartments.

Detectives went to the car wash and took Appellant into custody. Appellant later took the police

to the drainage pipe where he had disposed of the gun.

       The medical examiner, Dr. Juan Contin, performed the autopsy on West. He determined

that four bullets had entered West’s body. One of the shots had been fired at close range,

approximately 12-15 inches. West died from internal bleeding caused by the multiple gunshot

wounds. Dr. Contin discovered during the autopsy that West was about two to three weeks

pregnant at the time of her death. The defense’s medical expert, Dr. Harry Wilson, agreed with

Dr. Contin’s estimation of the embryo’s stage of development as two to three weeks. According

to Dr. Wilson, there would have been no visible signs of pregnancy and no one would have been

able to tell from outward appearance that West was pregnant. It also was too early in the

pregnancy for West to have experienced morning sickness.

       A grand jury indicted Appellant for the capital murder of West and the unborn fetus by

shooting West with a firearm. The trial court submitted to the jury the charged capital murder

offense (both West and the unborn child) and the lesser-included offense of murder (West only).

The jury found Appellant guilty of capital murder as charged in the indictment. This appeal

follows.
                          LEGAL SUFFICIENCY OF THE EVIDENCE

          In Point of Error One, Appellant challenges the legal sufficiency of the evidence to prove

he had specific intent to kill the unborn child. In reviewing the legal sufficiency of evidence, we

consider all of the evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560

(1979). A person commits murder if he intentionally or knowingly causes the death of an

individual. See TEX .PENAL CODE ANN . § 19.02(b)(1)(Vernon 2003). A person commits capital

murder if he intentionally or knowingly causes the death of an individual and he murders more

than one person during the same criminal transaction. TEX .PENAL CODE ANN . § 19.02(b)(1);

TEX .PENAL CODE ANN . § 19.03(a)(7)(A)(Vernon Supp. 2009). The Penal Code’s definition of a

“person” includes “an individual.” TEX .PENAL CODE ANN . § 1.07(a)(38)(Vernon Supp. 2009).

An “individual” is defined as “a human being who is alive, including an unborn child at every

stage of gestation from fertilization until birth.” TEX .PENAL CODE ANN . § 1.07(a)(26). If a

person intentionally or knowingly causes the death of a woman and her unborn child at any stage

of gestation, he commits the offense of capital murder. See Lawrence v. State, 240 S.W.3d 912,

915 (Tex.Crim.App. 2007), cert. denied, 553 U.S. 1007, 128 S.Ct. 2056, 170 L.Ed.2d 798

(2008).

          At the time this case was tried, the concept of transferred intent applied to capital murder.

Norris v. State, 902 S.W.2d 428, 437-38 (Tex.Crim.App. 1995), overruled by Roberts v. State,

273 S.W.3d 322 (Tex.Crim.App. 2008). Under this rule, if an accused killed his intended victim,

and also killed an unintended victim, he was criminally responsible for both murders. Norris,

902 S.W.2d at 437-38. But more recently, the Court of Criminal Appeals overruled Norris in
Roberts v. State, 273 S.W.3d 322 (Tex.Crim.App. 2008). There, the defendant murdered a

woman and her unborn child. The woman was eight to nine weeks pregnant, and as in the

present case, there was no evidence that the defendant was aware the woman was pregnant. See

id. at 327. In the context of a multiple-murder-capital-murder statute which requires that each

death be intentional or knowing, the court held that when an accused only intends to kill one

individual and actually kills that person, the intent manifested in that killing cannot also then

transfer to another, unintended victim. Id. at 331.

          The Court of Criminal Appeals reasoned that the concept of transferred intent cannot be

used to charge capital murder based on the death of an unintended victim. Transferred intent

may be used in regard to a second death only if there is proof of the intent to kill ths same

number of persons who actually died; that is, with intent to kill two people and two other people

are killed. Id. at 330-31. The court further held that in order to charge a person with

intentionally killing the second person, an embryo in the Roberts case, there must be the specific

intent to do so. Id. at 331. It then concluded that since Roberts did not know that the intended

victim was pregnant, he could not form the specific intent to kill the embryo. Id. The court

reformed the judgment to reflect a conviction for murder of the mother, and the case was

remanded to the trial court for a new punishment hearing for a single murder conviction. See id.

at 332.

          The State concedes that the evidence is legally insufficient to prove that Appellant

intended to kill the unborn child as there is no evidence he knew West was pregnant, but it

argues that the judgment should be reformed to reflect a conviction for the murder of West and

the cause should be remanded for a new punishment hearing. We agree. The trial court

submitted the lesser-included offense of murder to the jury. Further, Appellant has not
challenged the sufficiency of the evidence proving he intentionally and knowingly caused the

death of West by shooting her with a firearm. We therefore sustain Point of Error One. Unless

we find reversible error in the remaining issues presented on appeal which would result in the

granting of a new trial for purposes of guilt/innocence, the proper resolution will be to reform the

judgment to reflect a conviction for the murder of West and remand the cause for a punishment

hearing. See Roberts, 273 S.W.3d at 332; see also Haynes v. State, 273 S.W.3d 183, 187

(Tex.Crim.App. 2008). Having sustained Point of Error One, it is unnecessary to address Point

of Error Two in which Appellant challenges the factual sufficiency of the evidence supporting

the capital murder conviction. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).

               CONSTITUTIONALITY OF CAPITAL MURDER STATUTE

       In Points of Error Three through Eight, Appellant contends that the statutory scheme

permitting a capital murder prosecution and conviction for the murder of a pregnant woman and

her unborn child is unconstitutional as applied to him in this case. The constitutionality of a

statute should not be determined in any case unless such a determination is absolutely necessary

to decide the case in which the issue is raised. Turner v. State, 754 S.W.2d 668, 675

(Tex.Crim.App. 1988). This court has held that if an appellant raises multiple issues on appeal,

some of which challenge the constitutionality of a statute, the reviewing court should first resolve

the non-constitutional issues and if a reversal is required, the issues regarding the statute’s

constitutionality should not be addressed. Collins v. State, 890 S.W.2d 893, 896 (Tex.App.--El

Paso 1994, no pet.). Because we have found the evidence legally insufficient to support

Appellant’s capital murder conviction, we decline to address Appellant’s challenges to the

constitutionality of the capital murder statutes.

                                WRITTEN QUESTIONNAIRES
       In Point of Error Nine, Appellant complins that the trial court erred by failing to submit

written questionnaires to the prospective jurors. He argues that the trial court’s ruling deprived

him of the effective assistance of counsel because it prevented counsel from being able to

effectively question the jurors about various subjects, including the jurors’ beliefs and attitudes

towards the death penalty.

       During a pretrial conference, defense counsel asked if a written questionnaire could be

submitted to the jury panel. The trial court ruled that only the standard juror-information

questionnaires would be used. Appellant subsequently filed a written request to submit

additional questionnaires to the prospective jurors. Immediately prior to the beginning of voir

dire, defense counsel again raised the written questionnaire issue but the trial court denied the

request. That same day, Appellant filed a proposed written questionnaire which included a

section addressing the potential jurors’ beliefs regarding the death penalty.

       The conduct of voir dire rests within the sound discretion of the trial court. Woods v.

State, 152 S.W.3d 105, 108 (Tex.Crim.App. 2004); Mata v. State, 867 S.W.2d 798, 803

(Tex.App.--El Paso 1993, no pet.). Consequently, we review the trial court’s decisions

regarding the manner in which voir dire is conducted for an abuse of discretion. Curry v. State,

910 S.W.2d 490, 492 (Tex.Crim.App. 1995); Mata, 867 S.W.2d at 803. Generally, a trial court

abuses its discretion when it acts without reference to any guiding rules or principles.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). Stated differently, a trial

court abuses its discretion when it acts arbitrarily or unreasonably. Id.

       Under Section 62.0132 of the Government Code, the Office of Court Administration is

given the task of developing and maintaining a questionnaire to accompany a written jury

summons. TEX .GOV ’T CODE ANN . § 62.0132(a)(Vernon 2005). The statute mandates that the
questionnaire require a person to provide certain biographical and demographic information

relevant to service as a jury member. TEX .GOV ’T CODE ANN . § 62.0132(c). A person who has

received a written jury summons and the questionnaire is required to complete and submit the

questionnaire when the person reports for jury duty. TEX .GOV ’T CODE ANN . § 62.0132(c), (d).

Appellant has not cited any rule, statute, or any other authority requiring the trial court to submit

additional questionnaires requested by either the State or the defense. It therefore cannot be said

that the trial court acted without reference to any guiding rules or principles. Appellant has not

shown that the trial court’s refusal to submit the questionnaire constituted an arbitrary or

unreasonable act given that defense counsel had the opportunity to examine the venire and ask

questions about numerous topics including those addressed in the questionnaire. Appellant

nevertheless argues, citing sociological studies and law review articles, that written

questionnaires are a superior method of obtaining truthful information from potential jurors.

While that may well be true, Appellant failed to present any of this information to the trial court.

Additionally, the Court of Criminal Appeals has cautioned against reliance on written

questionnaires to supply any information that counsel deems material due to the possibility of

misinterpretation of questions. See Gonzales v. State, 3 S.W.3d 915, 917 (Tex.Crim.App. 1999).

Because the record before us does not demonstrate an abuse of discretion, we overrule Point of

Error Nine.

                                RESTRICTION OF VOIR DIRE

       In Points of Error Ten and Eleven, Appellant alleges that the trial court improperly

restricted voir dire by not permitting him to ask a hypothetical question addressing the

prospective jurors’ ability to consider the minimum punishment if they found him guilty of the

lesser-included offense of murder.
       The right to counsel guaranteed by Article I, Section 10 of the Texas Constitution

includes the right of counsel to question the venire in order to intelligently exercise peremptory

challenges. Ex parte McKay, 819 S.W.2d 478, 482 (Tex.Crim.App. 1990); Mata v. State, 867

S.W.2d 798, 803 (Tex.App.--El Paso 1993, no pet.). When an appellant challenges a trial

judge’s limitation on the voir dire process, the reviewing court must analyze the claim under an

abuse of discretion standard, the focus of which is whether the appellant proffered a proper

question concerning a proper area of inquiry. Jones v. State, 223 S.W.3d 379, 381

(Tex.Crim.App. 2007); Howard v. State, 941 S.W.2d 102, 108 (Tex.Crim.App. 1996). A proper

question is one which seeks to discover a veniremember’s views on an issue applicable to the

case. Howard, 941 S.W.2d at 108. If a proper question is disallowed, harm to the appellant is

presumed because he has been denied the ability to intelligently exercise his peremptory strikes.

Id. However, a trial court is given broad discretionary authority to impose reasonable restrictions

on the voir dire process. Id. The trial court is permitted to control the scope of voir dire by

limiting improper questioning. Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App. 1985).

       During voir dire, defense counsel addressed the issue of the potential jurors’ ability to

consider probation for the lesser-included offense of murder:

       Now, assume with me that you are on -- wait a minute -- one more little point.
       We are talking about the definitions of unborn child and there is some suggestion
       that the fetus, an unborn child, is also another stage of gestation called embryo.

       And apparently under the definitions of the law an unborn child which can be
       murder; an embryo.

       Now, I want you assume with me that you are on the jury. Now in a hypothetical
       case in which the accused was charged with capital murder; this is, the indicted
       charges were the accused intentionally and knowingly caused the death of a
       certain individual by shooting that individual with a firearm and the accused
       intentionally and knowingly caused the death of another individual; namely, the
       unborn child of the first victim with a firearm and both murders were committed
       during the same criminal transaction.

       It is your opinion in a hypothetical case where that was the original accusation.
       Assume further that you and your fellow jurors considered the case. You hear all
       the evidence, you went back in the juryroom. You have deliberated and you-all
       came to the conclusion and the verdict that the accused was not guilty of the
       capital murder for which he was indicted.

       Okay. Assume with me further that after you and your fellow jurors found the
       accused not guilty of the capital murder, you considered all the evidence in the
       case and convicted the accused of the lesser included offense of murder.

       And in order to do that, you would have had to determine that the accused
       committed intentionally, that he did it because he wanted to do it, that the accused
       was not forced to commit it, that the killing was not done in self defense, that it is
       not done in defense of a third party, that it was not an accident.

       Not a mistake. That the accused was not insane, that the victim was totally
       innocent and that the victim did not provoke the murder or deserve to die.

       After coming to these conclusions and arriving at a verdict of guilty of murder,
       your next job would be to determine the punishment in that case.

The prosecutor objected that the hypothetical was an improper attempt to have the jurors commit

to a particular result under a particular set of facts. Appellant’s attorney responded that he could

include the elements of the indictment in the hypothetical. The trial court asked defense counsel

to restate his hypothetical without getting into the facts of the case.

       Defense counsel restated the hypothetical but again included the facts by asking the

potential jurors whether they could consider five years probation in a case where the person was

charged with intentionally and knowing shooting and killing the victim and her unborn child and

the jury found the defendant guilty of murder. The State objected to the hypothetical on the

ground of improper contracting and stated that the prospective jurors only had to be able to

consider the full range of punishment in any given case, not the specifics of the case on trial. The

court instructed defense counsel to ask whether the jurors could consider probation in an
appropriate case. Defense counsel insisted that he wanted to ask the question as stated and

tendered the question in writing to the court. Ultimately, defense counsel was permitted to ask

each prospective juror whether he or she could consider the minimum punishment where the

defendant is found guilty of the lesser-included offense of murder.

       During voir dire, an attorney cannot attempt to bind or commit a prospective juror to a

verdict based on a hypothetical set of facts. Standefer v. State, 59 S.W.3d 177, 179-80

(Tex.Crim.App. 2001). A question is a commitment question if one or more of the possible

answers is that the prospective juror would resolve or refrain from resolving an issue in the case

on the basis of one or more facts contained in the question. Id. at 179-80. Not all commitment

questions are improper. Id. at 181. The law requires jurors to make certain types of

commitments. Id. Consequently, the attorneys may ask the prospective jurors whether they can

follow the law in that regard. Id. For example, a prospective juror is challengeable for cause if

he or she is unable to consider the full range of punishment provided for an offense. Id. Thus,

the question, “Can you consider probation in a murder case?” is a proper question even though it

commits a prospective juror to keeping the punishment options open (i.e., to refraining from

resolving the punishment issues in a certain way) in a murder case. Id. But the question

becomes improper when it adds facts beyond what is necessary to determine whether the

prospective juror is challengeable for cause. Id. at 182. The inquiry for improper commitment

questions has two steps: (1) is the question a commitment question, and (2) does the question

include facts--and only those facts--that lead to a valid challenge for cause? If the answer to (1)

is “yes” and the answer to (2) is “no,” then the question is an improper commitment question,

and the trial court should not allow the question. Id. at 182-83.

       Here, the answer to the first question is “yes” because Appellant concedes, and we agree,
that the question he sought to ask is a commitment question. We further find that the answer to

the second question is “no” because the hypothetical question utilized by defense counsel--stating

that the defendant was accused of intentionally and knowingly killing a woman and her unborn

child and the woman by shooting the woman, the woman was totally innocent, and the defendant

did it because he wanted to do it--included facts beyond what was necessary to establish that a

prospective juror was unable to consider the minimum punishment in a murder case. See

Standefer, 59 S.W.3d at 181-82 (overruling Maddux v. State, 862 S.W.2d 590, 591-92

(Tex.Crim.App. 1993) which held that defendant in a murder case involving a child could inquire

whether the prospective jurors could consider probation if the murder victim was a child). Thus,

the hypothetical question Appellant sought to ask was an improper commitment question and the

trial court properly disallowed it. Points of Error Ten and Eleven are overruled.

                                 CHALLENGES FOR CAUSES

       In Point of Error Twelve, Appellant maintains that the trial court erred by denying his

challenges for cause to prospective juror number four and sixty-seven other prospective jurors

who could not consider probation for the lesser-included offense of murder. Because Appellant

was convicted of capital murder, the jury did not determine punishment. Consequently, any error

relating to the punishment range of the lesser-included offense of murder is harmless because it

made no contribution to Appellant’s conviction or punishment. See King v. State, 953 S.W.2d

266, 268 (Tex.Crim.App. 1997)(where defendant was convicted of capital murder, Court of

Criminal Appeals found harmless the alleged error in the denial of the defendant’s challenges for

cause related to two potential jurors’ inability to consider probation for the lesser-included

offense of murder because it made no contribution to the defendant’s conviction or punishment).

Point of Error Twelve is overruled.
                                     CUMULATIVE ERROR

       In Point of Error Thirteen, Appellant contends that cumulative error during jury selection

prevented defense counsel from providing the effective assistance of counsel guaranteed by the

state and federal constitutions. There is some authority that a number of errors may be found

harmful in their cumulative effect, but there is no authority holding that non-errors may in their

cumulative effect cause error. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.

1999). We have found no error occurred in connection with Points of Error Nine, Ten, and

Eleven. In Point of Error Twelve, we did not address the merits of the complaint but found that

even if error occurred it was harmless. Because there is no basis for finding cumulative error, we

overrule Point of Error Thirteen.

                                 TRIAL COURT’S CONDUCT

       In his final point of error, Appellant argues that the trial court violated his right to a fair

trial by interrupting defense counsel during voir dire, making improper comments to the jury

panel, assisting the prosecutor, and by questioning a witness. Appellant admits that he did not

object to any of the instances of alleged improper conduct by the trial judge, but he contends that

the judge’s behavior amounts to fundamental error, and therefore, he was not required to object.

In support of his fundamental error argument, Appellant cites the Court of Criminal Appeals’

plurality opinion in Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App. 2000)(plurality op.).

       Due process requires a neutral and detached judge. Brumit v. State, 206 S.W.3d 639, 645

(Tex.Crim.App. 2006), citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d

656 (1973). Failure to raise a contemporaneous objection generally results in failure to preserve

error for appellate review. See TEX .R.APP. P. 33.1(a); see also Brewer v. State, 572 S.W.2d 719,

721 (Tex.Crim.App. 1978)(where no objection is made, remarks and conduct of the court may
not be subsequently challenged unless they are fundamentally erroneous). But Rule 103(d) of the

Texas Rules of Evidence authorizes appellate courts to take notice of fundamental errors

affecting substantial rights even though they were not brought to the attention of the trial court.

TEX .R.EVID . 103(d). In Blue, the trial judge apologized to the venire for its long wait, stated the

delay was because the defendant was indecisive on whether to accept a plea bargain, and

expressed his preference that the defendant plead guilty. Id. at 130. A plurality of the Court of

Criminal Appeals held that the trial judge’s comments tainted the defendant’s presumption of

innocence in front of the venire and amounted to fundamental error of constitutional dimension

which required no objection. Blue, 41 S.W.3d at 132. Thus, the defendant’s failure to object did

not constitute waiver. Id. at 132.

       Blue is not binding precedent because it is a plurality opinion. See Jasper v. State, 61

S.W.3d 413, 421 (Tex.Crim.App. 2001)(acknowledging Blue as a plurality opinion that the court

was not bound to follow). In Brumit v. State, the defendant relied on Blue, but the Court of

Criminal Appeals held that we must look to the test set forth in Marin v. State, 851 S.W.2d 275

(Tex.Crim.App. 1993) when determining whether comments by the trial judge can be raised on

appeal absent an objection. Brumit v. State, 206 S.W.3d 639, 644 (Tex.Crim.App. 2006).

Under Marin, it must be determined whether the alleged error violated (1) an absolute

requirement or prohibition; (2) a right of the defendant that must be implemented by the system

unless expressly waived; or (3) a right that is to be implemented upon request of the defendant.

See Brumit, 206 S.W.3d at 644. Despite these comments, the court chose not to reach the

preservation issue because it found that the judge’s comments did not show partiality on the part

of the judge. Id. at 644-45. In other words, the court did not reach the preservation issue because

it addressed the merits and found no error. Because the Court of Criminal Appeals has not
spoken definitively on the preservation issue, we will follow Brumit’s approach and determine

whether the trial judge’s comments were erroneous.

       A trial judge has discretion in maintaining control and expediting trial. Jasper v. State,

61 S.W.3d 413, 421 (Tex.Crim.App. 2001). It is not improper for a trial judge to interject to

correct a misstatement or misrepresentation of previously admitted testimony. Id. Likewise, a

trial judge is permitted to correct a misstatement of the law, explain a point of law or clear up

confusion, or to expedite the proceedings. See Jasper, 61 S.W.3d at 421; Moore v. State, 275

S.W.3d 633, 636 (Tex.App.--Beaumont 2009, no pet.); Murchison v. State, 93 S.W.3d 239, 262

(Tex.App.--Houston [14th Dist.] 2002, pet. ref’d). Further, a trial judge is permitted to question

a witness for the purpose of clarifying an issue or assisting the court in ruling on an objection.

Brewer v. State, 572 S.W.2d 719, 721 (Tex.Crim.App. 1978); Moore, 275 S.W.3d at 636-37.

                                    Comments During Voir Dire

       Appellant first complains of five instances during voir dire when the trial court

interrupted defense counsel to make comments. The first instance occurred while defense

counsel was addressing pretrial publicity and possible bias. The court interrupted to comment on

the value of the jury system and the failure of the media to be 100 percent accurate. The court

also clarified that the bias counsel was discussing existed prior to the jury hearing any evidence.

The court’s comments were a permissible exercise of the court’s discretion to explain and clarify

a point of law or clear up confusion. See Jasper, 61 S.W.3d at 421; Moore, 275 S.W.3d at 636;

Murchison, 93 S.W.3d at 262.           The court also commented while defense counsel was

addressing the defendant’s right to remain silent. The court clarified the right to remain silent

and emphasized that the State had the burden of proof. These comments were not improper

because the court was clarifying the law. See Jasper, 61 S.W.3d at 421; Moore, 275 S.W.3d at
636; Murchison, 93 S.W.3d at 262.

       Defense counsel then addressed what he referred to as gender bias on the part of the

prospective jurors and he attempted to ascertain whether any of them felt it was easier to believe

that a male defendant was the aggressor where the victim was female. The trial judge clarified

the meaning of the term bias and asked questions to clarify a prospective juror’s views. The trial

judge acted properly by clarifying the meaning of the term bias. Further, given that the judge

might be called upon to rule on a challenge for cause, the judge did not act improperly by

clarifying the prospective juror’s views on this subject.

       The court also interrupted defense counsel when counsel was addressing whether the

venire could consider the minimum range of punishment in a case where the defendant was

found guilty of the lesser included offense of murder. As pointed out by the State, the judge

made an initial comment clarifying the law, but the majority of the judge’s comments were made

at the bench outside the hearing of the jury. The court’s comment made to the venire was

directed at clarifying the legal issue and were made necessary because defense counsel was

attempting to ask improper commitment questions. As such, it was a proper comment. Further,

the comments made at the bench could not have tainted the presumption of innocence nor could

they have vitiated the defendant’s right to an impartial jury trial. See Murchison, 93 S.W.3d at

261-62 and n.4 (judge’s comments made outside of jury’s presence could not have affected

defendant’s right to an impartial jury trial); see also Baca v. State, 223 S.W.3d 478, 482

(Tex.App.--Amarillo 2006, no pet.)(judge’s comment made outside of jury’s presence could not

constitute comment on the weight of the evidence and did not amount to fundamental error).

                                     Assisting the Prosecutor

       In instances 6, 8, 9, and 10, Appellant asserts that the trial judge improperly assisted the
prosecutors by instructing them to ask a witness certain questions and by telling the prosecutor

how to lay a predicate. In the sixth instance set forth in Appellant’s brief, a witness testified he

saw a man shooting a gun and then leaving the scene. As the witness was about to be excused,

the judge informed the parties at the bench that the prosecutor had not asked the witness to

identify the shooter. In the jury’s presence, the prosecutor asked a few additional questions and

asked the witness if he could identify the shooter. The witness positively identified Appellant as

the shooter. We agree that it was improper for the trial judge to remind the prosecutor, even

outside of the jury’s hearing, that she had not asked a witness to identify the defendant but the

error does not demonstrate judicial bias nor does it rise to the level of fundamental error. See

Houston v. State, No. 03-05-00188-CR, 2006 WL 431188 (Tex.App.--Austin February 24, 2006,

pet. ref’d)(after defendant objected that State had failed to prove the prior DWI convictions in a

felony DWI case, the trial judge stated that prosecutor could re-open the evidence and put on

evidence of the prior convictions; court of appeals held that judge’s suggestion was improper but

it did not demonstrate judicial bias or amount to fundamental error). Appellant failed to preserve

error because he did not object.

       In the eighth and ninth instances, the State attempted to elicit testimony from two

witnesses, James Thomas and Carlos Carrillo, regarding their observations of the victim at the

scene. During Thomas’ testimony, the State asked whether the victim made any statements but

asked Thomas not to relate the statements. The defense raised a hearsay objection and the parties

engaged in a discussion at the bench about the admissibility of the testimony. The judge told the

prosecutor at the bench what part of the predicate the court believed had not been established.

The trial court erroneously believed that under the dying declaration exception, the proponent of

the evidence was required to prove that the witness believed that the declarant’s death was
imminent. Thomas testified in the jury’s presence he believed West was dying but he never

informed the jury of the substance of his conversation with her. Carrillo testified he asked the

victim who had done this to her, but the defense raised two objections, hearsay and failure to lay

the proper predicate, before the witness could answer.1 During a bench conference, defense

counsel stated the court had previously misstated the admissibility requirements of Rule

804(b)(2), and she argued that the State was required to prove that the declarant believed her

death was imminent. The court sustained the objection after discussing the admissibility

requirements with the attorneys at the bench. The trial court took the matter under advisement

and asked the parties to provide authority.

         We agree with the State that the trial judge was not “coaching” the State in either instance

as alleged by Appellant but rather was engaging in a discussion about the admissibility of the

testimony. Appellant provides no authority for the proposition that it is improper for a judge to

explain to the parties, outside of the jury’s presence, the basis for the court’s ruling that evidence

is or is not admissible. The State correctly observes that these types of discussions occur in

virtually every trial. It should also be noted that the erroneous requirement that the trial judge

placed on the State to prove that witness Thomas knew that the victim was dying could have

proven extremely difficult for the State to establish had Thomas not been a Vietnam veteran who

had seen numerous people die of gunshot sounds. The court’s erroneous ruling was not helpful

to the State. Finally, none of the judge’s comments could have tainted the presumption of

innocence or vitiated the impartiality of the jury because all of the comments occurred during

bench conferences. See Murchison, 93 S.W.3d at 261-62 and n.4 (judge’s comments made


         1
             An objection that the proper predicate has not been laid is too general to preserve error. Paige v. State,
573 S.W .2d 16, 19 (Tex.Crim.App. 1978). To preserve error, counsel must inform the court just how the predicate
is deficient. Bird v. State, 692 S.W .2d 65, 70 (Tex.Crim.App. 1985).
outside of jury’s presence could not have affected defendant’s right to an impartial jury trial); see

also Baca v. State, 223 S.W.3d 478, 482 (Tex.App.--Amarillo 2006, no pet.)(judge’s comment

made outside of jury’s presence could not constitute comment on the weight of the evidence and

did not amount to fundamental error).

       In the tenth instance, the State was eliciting testimony from Michael Jordan, Sr., a

lieutenant with the El Paso Fire Department about his observations and emergency medical

treatment of the victim at the scene. When the State attempted to ask Jordan whether the victim

had made any statements about her condition, the defense raised a hearsay objection and the trial

court conducted a hearing outside of the jury’s presence. During this hearing, the parties and the

court engaged in a discussion about the admissibility of the testimony. The court overruled the

hearsay objection and the State elicited the challenged testimony in the jury’s presence. Contrary

to Appellant’s assertions, the trial court did not tell the State how to lay the predicate in order for

a dying declaration to be admissible. As was the case with the two previous issues, the judge’s

comments could not have tainted the presumption of innocence or vitiated the impartiality of the

jury because all of the comments occurred during bench conferences. See Murchison, 93 S.W.3d

at 261-62 and n.4; see also Baca, 223 S.W.3d at 482.

                                       Questioning a Witness

       Finally, in the seventh instance identified by Appellant, a witness testified through an

interpreter that she saw the shooter walking away from the apartments. When testifying what

direction the shooter walked, the witness indicated with her left hand, and the court interrupted to

ask whether the witness was facing the apartments or the street. As conceded by the State, the

better practice is for trial judges to refrain from questioning witnesses, but error is not shown

when the trial court questions a witness for the purpose of clarifying previous testimony. See
Brewer, 572 S.W.2d at 721 (questioning of witnesses at revocation of probation hearing by trial

court, which maintained an impartial attitude throughout, for purpose of clarifying an issue

before court, was permissible); Moore, 275 S.W.3d at 636-37 (trial court’s unobjected-to

questions to fingerprint expert, called during punishment phase of arson trial to show that

defendant was person previously convicted of felonies alleged in indictment, were not

fundamental error; questions merely clarified whether the fingerprint analysis had a potential for

misidentification, and did not deprive defendant of a fair and impartial trial). Later during the

witness’ testimony, the trial judge instructed the jury that they were restricted to the official

interpretation of what the witness said. The judge’s instruction was a correct statement of the

law and did not amount to fundamental error.

       With the exception of one instance set forth above, we find that the trial court acted

within its discretion during trial and the court’s comments and actions did not taint the

presumption of innocence or vitiate the defendant’s right to an impartial jury. Even in the

instance where error occurred, it does not rise to the level of fundamental error. Accordingly,

Appellant was required to object in order to preserve error with respect to the arguments raised in

this point of error. Because he failed to preserve error, we overrule Point of Error Fourteen.

       Having sustained Point of Error One, we reverse the conviction for the offense of capital

murder. We reform the judgment to reflect a conviction of the murder of West and remand the

cause for a punishment hearing. See Roberts, 273 S.W.3d at 332; see also Haynes v. State, 273

S.W.3d 183, 187 (Tex.Crim.App. 2008).


July 28, 2010
                                                       ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.
(Do Not Publish)
