Rocha v. State, No. 10-08-00024-CR (Tex. App. 9/24/2008)
| Decision Date | 24 September 2008 |
| Docket Number | No. 10-08-00024-CR.,10-08-00024-CR. |
| Parties | NATALIE COLE ROCHA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 19th District Court, McLennan County, Texas, Trial Court No. 2007-1142-C1.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA
(Justice VANCE concurs in the judgment with a note)*
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 "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" 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 ().) 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 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.
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 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...
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