Affirmed and Memorandum Opinion filed August 28, 2018.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-17-00510-CR

                    SHARON DENISE PHILLIPS, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee

                    On Appeal from the 339th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1448558

                  MEMORANDUM                       OPINION


      Appellant Sharon Denise Phillips was found guilty by a jury of murder and
sentenced to confinement in prison for fifty-five years. On appeal, appellant
contends that the prosecutor’s explanation of reasonable doubt during voir dire
suggested a level of certainty lower than due process requires, and that the trial court
erred in sustaining an objection to defense counsel’s closing argument at the
punishment stage. We affirm.
                             I. FACTUAL BACKGROUND

      Appellant was involved in a volatile relationship with the complainant,
Brandon Andrews. One evening in November 2014, Andrews drove to a gas station
with his father and young daughter. Appellant then arrived at the gas station,
approached Andrews while holding a knife, and began arguing with him. Appellant
stabbed Andrews four times in the chest and once in the back, causing his death.
Some of the altercation was captured on video surveillance, and some was seen by
an eyewitness who testified at trial and identified appellant. The jury refused to find
that appellant acted in self-defense and found appellant guilty of murder.

            II. PROSECUTOR’S EXPLANATION OF REASONABLE DOUBT

      In her first issue, appellant contends that “[t]he prosecutor’s explanation of
reasonable doubt during voir dire suggested a level of certainty lower than due
process of law requires, illustrating why Texas should return to a standard
definition.” The State responds that appellant waived this issue by failing to timely
object to the prosecutor’s explanation of reasonable doubt; in any event, the
prosecutor’s explanation of the State’s burden of proof did not undermine
appellant’s right to a finding of guilt beyond a reasonable doubt.

      During voir dire, the prosecutor discussed the meaning of “reasonable doubt”
with the jury panel:

      The Judge kept saying the words “beyond a reasonable doubt.” Have
      y’all heard that term a lot, especially on TV shows? Now, there is no
      definition of beyond a reasonable doubt. Juror No. 9, beyond a
      reasonable doubt means something completely different to you than it
      does to Juror No. 10. It’s whether you believe the State of Texas proved
      their case beyond a reasonable doubt. It’s whether you have a
      reasonable doubt or not. It’s a feeling inside. Did the State prove their
      case beyond a reasonable doubt?
Additionally, the prosecutor encouraged the venirepersons to apply common sense
                                          2
by using as an example a popular game show in which contestants try to fill in
enough blanks with letters to guess the words in a phrase:

      We weren’t [at the scene of the crime]. You have to witness the case
      yourself to believe something beyond all doubt. So [for] those blanks,
      use your common sense; use your reasonable inferences.

Appellant made no contemporaneous objection to the prosecutor’s explanation.

      As an initial matter, the State argues that appellant’s failure to object waived
her complaint that the prosecutor’s explanation of the State’s burden of proof
violated her right to due process. Generally, to preserve a complaint for appellate
review, the complaining party is required to make a “timely request, objection, or
motion” before the trial court. Tex. R. App. P. 33.1(a)(1); Gillenwaters v. State, 205
S.W.3d 534, 537 (Tex. Crim. App. 2006). Almost every right, both constitutional
and statutory, may be forfeited by the failure to object. Glover v. State, 496 S.W.3d
812, 816 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); see Mendez v. State,
138 S.W.3d 334, 340–41 (Tex. Crim. App. 2004). Whether an appellant is required
to make a contemporaneous objection to preserve error turns on the nature of the
right allegedly infringed. See Proenza, 541 S.W.3d 786, 796 (Tex. Crim. App.
2017); Mendez, 138 S.W.3d at 341–42.

      Appellant acknowledges that defense counsel failed to timely object to the
prosecutor’s explanation of reasonable doubt, but counters that the recent decision
in Proenza supports a conclusion that a prosecutor’s duty not to misrepresent the
State’s burden of proof creates a right that is waivable only, and therefore a timely
objection to the violation of that duty is not required to preserve her appellate
complaint. See 541 S.W.3d 786.

      In Proenza, the Court of Criminal Appeals applied the three-category



                                          3
framework of litigants’ rights established in Marin v. State1 to determine whether a
defendant was required to object to at trial to preserve a complaint that the trial judge
violated article 38.05 of the Texas Code of Criminal Procedure by improperly
commenting on the weight of the evidence. See id. at 797–800. The Proenza court
concluded that the mandatory text of the statute and its important role in protecting
the perception of the trial judge’s impartiality in front of the jury created a right that
was waivable only, meaning a right that cannot be forfeited by a defendant’s
inaction. See id. at 800–01. Because the record reflected that the defendant did not
affirmatively waive his right to the trial judge’s compliance with article 38.05, the
court held that the defendant’s complaint could be raised for the first time on appeal.
Id. at 801.

       Appellant argues that as a logical extension of Proenza, this court should hold
that a prosecutor has a similar duty to not misrepresent the State’s burden of proof
which cannot be forfeited by a defendant’s failure to object. According to appellant,
prosecutors should be held to a high standard of accuracy when they attempt to
explain the law because “that may be the explanation which sticks with the jury,”
especially since the court’s charge does not include a reasonable-doubt instruction.2

       1
         See 851 S.W.2d 275 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State,
947 S.W.2d 262 (Tex. Crim. App. 1997). In Marin, the Court of Criminal Appeals identified the
following three categories of defendants’ rights: (1) absolute requirements and prohibitions, which
cannot be waived or forfeited by the parties; (2) waivable-only rights, which must be implemented
unless expressly waived; and (3) forfeitable rights, which must be requested by the litigant. See id.
at 279.
       2
         Appellant suggests that the remedy for the alleged harm should include not only a reversal
for new trial, but also a return to including a written definition of “beyond a reasonable doubt” as
the Court of Criminal Appeals once required in Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim.
App. 1991), but later overruled in Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000)
(“We find that the better practice is to give no definition of reasonable doubt at all to the jury.”).
To the extent that appellant requests this court to order such relief, we cannot do so. As an
intermediate appellate court, we lack the authority to overrule an opinion of the Court of Criminal
Appeals. State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006) (citations omitted), aff’d
sub. nom., State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007). In any event, the United
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Appellant also asserts that because the charge contains no definition of proof
“beyond a reasonable doubt,” the prosecutor’s explanation of the State’s burden of
proof may act as an instruction, and therefore a prosecutor’s erroneous de facto
instruction would be charge error sufficient to constitute egregious harm. See
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g).

       But appellant cites no legal authority to support her contention that a
prosecutor has a duty to refrain from misrepresenting the State’s burden of proof
comparable to a trial court’s statutory duty to refrain from commenting on the weight
of the evidence. Likewise, appellant cites no authority supporting her claim that a
prosecutor’s comments during voir dire equate to charge error. Nor does appellant
attempt to apply the Marin framework discussed in Proenza to explain why a
violation of the alleged duty creates a right that is absolute or at least waivable-only,
rather than forfeitable by inaction.

       It is incumbent upon appellant to cite specific legal authority and to provide
legal arguments based on that authority. See Tex. R. App. P. 38.1(i); Bohannan v.
State, 546 S.W.3d 166, 179–80 (Tex. Crim. App. 2017). We will not make novel
legal arguments for her. Bohannan, 546 S.W.3d at 180. Accordingly, we decline to
address appellant’s argument because it is inadequately briefed.3 See Arrellano v.
State, ___ S.W.___, No. 01-15-00814-CR, 2018 WL 2727737, at *5 (Tex. App.—
Houston [1st Dist.] June 7, 2018, pet. filed) (holding that appellant’s challenge to

States Constitution “neither prohibits trial courts from defining reasonable doubt nor requires them
to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5 (1994).
       3
          We note that post-Proenza, this court and our sister court have held that a trial court’s
similar explanations of reasonable doubt were not error. See Trevino v. State, No. 14-16-00848-
CR, 2018 WL 3469228, at *3–4 (Tex. App.—Houston [14th Dist.] July 19, 2018, no pet. h.) (mem.
op., not designated for publication); Scott v. State, ___ S.W. ___, 2018 WL 2107237, at *4–6 &
n.4 (Tex. App.—Houston [1st Dist.] May 8, 2018, pet. filed). Therefore, even if appellant’s issue
were not waived, we would conclude that the prosecutor’s explanations in this case were not
incorrect statements of the law for the same reasons explained in Trevino and Scott.

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trial court’s comments concerning reasonable doubt during voir dire was
inadequately briefed and thus waived).

       We overrule appellant’s first issue.

                                  III. CLOSING ARGUMENT

       In her second issue, appellant contends that the trial court erred in sustaining
an objection to defense counsel’s closing argument in the punishment phase.
Appellant argues that the State called Andrews’s sister as a witness to show “victim
impact” by discussing Andrews’s good qualities and the trial court allowed defense
counsel to cross-examine her to show that the evidence presented during direct
examination was false or misleading. Once this impeachment evidence was
admitted, appellant argues, defense counsel was entitled to offer jury arguments
based on that evidence, and the trial judge erred in cutting off this line of argument.
The State responds that the trial court did not abuse its discretion in precluding
defense counsel from improperly using closing argument as a vehicle to place
evidence outside the record before the jury.

       In the punishment phase, Andrews’s sister gave her unsolicited opinion that
Andrews was a “good person.” On cross-examination, defense counsel attempted to
impeach Andrews’s sister’s opinion by asking a series of “have you heard” questions
about various reports of alleged specific instances of conduct by Andrews. The
questions inquired into whether Andrews’s sister had heard reports that Andrews
had attacked different women on several occasions, fired a pistol at someone, and
committed a robbery. Andrews’s sister denied having knowledge of the bulk of the
alleged conduct.4 No evidence was introduced establishing that Andrews committed

       4
         The only instance Andrews’s sister testified to having any knowledge of was an alleged
report that Andrews had fired a pistol at someone, and she testified that she was there and that the
incident “didn’t happen that way.”

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any of the alleged conduct.

      During closing argument, defense counsel sought to remind the jury of the
alleged specific instances of conduct he listed during cross-examination of
Andrews’s sister. The prosecutor objected that defense counsel’s jury argument was
improper because the alleged conduct had not been proved beyond a reasonable
doubt. The trial court sustained the State’s objection.

      At the end of closing arguments and outside the presence of the jury, defense
counsel argued that he was denied the opportunity to remind the jury of the “have
you heard” questions that he had posed to Andrews’s sister. Defense counsel also
made an offer of proof, reciting specifically what he would have asked or argued to
the jury, including a list of seven alleged specific instances of conduct. The
prosecutor again responded that the argument would be improper because none of
the instances of conduct were proven beyond a reasonable doubt but were merely
introduced through a witness who had no knowledge of them. Defense counsel
replied that, after listing the alleged conduct, he intended to ask the jury, “Did the
State bring you any contradictory evidence? Because they did not. That’s it.”

      Proper jury argument includes four areas: (1) summation of the evidence
presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to
the opposing counsel’s argument, or (4) a plea for law enforcement. Freeman v.
State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). A defendant has the right to
argue any theory supported by the evidence and may make all inferences from the
evidence that are legal, fair, and legitimate. Vasquez v. State, 484 S.W.3d 526, 531
(Tex. App.—Houston [1st Dist.] 2016, no pet.). However, the defense may not use
closing argument as a vehicle to place before the jury evidence that is outside the
record. Id.

      We review the trial court’s ruling on the State’s objection to a defendant’s
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jury argument for abuse of discretion. Id. (citing Davis v. State, 329 S.W.3d 798,
825 (Tex. Crim. App. 2010). We will affirm the trial court’s ruling on appeal unless
it falls outside the zone of reasonable disagreement. Hayden v. State, 296 S.W.3d
549, 553 (Tex. Crim. App. 2009); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1990) (op. on reh’g). We also will affirm the trial court’s ruling on any
theory applicable to the case. Hayden, 296 S.W.3d at 553.

      Appellant maintains that because his impeachment evidence was admitted,
defense counsel was entitled to offer jury arguments based on that evidence. In
support of this argument, appellant solely relies on Texas Code of Criminal
Procedure article 37.07, § 3, to argue that the statute allows “a wide-ranging
presentation chock full of factual assertions which have not been proven beyond a
reasonable doubt to be true.” Article 37.07 governs the admission of evidence during
the punishment phase of trial, and specifically allows the State and the defendant to
offer evidence of “any matter the court deems relevant to sentencing.” Tex. Code
Crim. Proc. art. 37.07, § 3(a)(1). But the State does not contend that the trial court
erred in allowing defense counsel’s cross-examination of Andrews’s sister. The
State acknowledges that a witness who testifies to a complainant’s good character
may be cross-examined to test the witness’s awareness of relevant “specific
instances of conduct.” See Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App.
2002); see also Tex. R. Evid. 405(a).

      The issue before us is whether, during closing argument, the trial court abused
its discretion by sustaining the State’s objection that allowing defense counsel to
reiterate the alleged specific instances of conduct previously posed to Andrews’s
sister as “have you heard” questions would constitute improper jury argument, when
no evidence was presented that Andrews had committed the alleged specific
instances of conduct. Appellant argues that “once impeachment evidence is

                                          8
admitted, defense counsel properly may offer jury arguments based on that
evidence.” As the State points out, however, no impeachment evidence was
admitted. Indeed, the party cross-examining the character witness with “have you
heard” or “do you know” questions may not offer extrinsic evidence to prove that
the specific instances of conduct actually occurred. See Wilson, 71 S.W.3d at 351.
Moreover, it is not the cross-examiner’s questions that constitute evidence, it is the
witness’s answers. See Madden v. State, 242 S.W.3d 504, 513 & n.23 (Tex. Crim.
App. 2007) (recognizing that questions posed by the attorney are not evidence). In
this case, Andrews’s sister denied any knowledge of the alleged instances of conduct
by her brother, so her testimony cannot constitute evidence of the alleged conduct.

      The purpose of permitting cross-examination of a character witness through
“have you heard” or “do you know” questions is not to discredit the person whose
character is in issue, but rather to discredit the testimony of the character witness.
Harrison v. State, 241 S.W.3d 23, 25 (Tex. Crim. App. 2007). Absent any evidence
that Andrews actually committed any of the conduct alleged in defense counsel’s
“have you heard” questions, the trial court reasonably could have concluded that,
during closing argument, defense counsel was attempting to repeat the alleged
instances of conduct to suggest that Andrews was not a good person—and therefore
appellant deserved less prison time—by improperly referring to information outside
the record. See Wilson, 71 S.W.3d at 351; see also Brown v. State, 270 S.W.3d 564,
570 (Tex. Crim. App. 2008) (stating that “[i]t is the duty of the trial counsel to
confine their arguments to the record; reference to facts that are neither in evidence
nor inferable from the evidence is therefore improper”). Indeed, appellant argues
that had defense counsel been allowed to “play out this line of attack” the jury “might
have thought the killing of Andrews deserved less punishment than was meted out.”
On the record of this case, we cannot conclude that the trial court’s ruling was


                                          9
outside the zone of reasonable disagreement.

      We overrule appellant’s second issue.

                                 IV. CONCLUSION

      We overrule appellants’ issues and affirm the trial court’s judgment.




                                      /s/      Ken Wise
                                               Justice



Panel consists of Justices Jamison, Wise, and Jewell.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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