Joseph Michael Anderson v. The State of Texas--Appeal from 19th District Court of McLennan County (majority)Annotate this Case
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
JULY 30, 2012
JOSEPH MICHAEL ANDERSON, APPELLANT
THE STATE OF TEXAS, APPELLEE
FROM THE 19TH DISTRICT COURT OF McLENNAN COUNTY;
NO. 2009-1366-C1; HONORABLE RALPH T. STROTHER, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION ON REMAND
The Court of Criminal Appeals vacated our earlier opinion in this case, Anderson
v. State, 341 S.W.3d 585 (Tex.App.--Amarillo 2011) and remanded it for reconsideration
in light of Fuller v. State, 363 S.W.3d 583 (Tex.Crim.App. 2012), wherein it concluded
that questions regarding the differences between the criminal and civil burdens of proof
are relevant to understanding a venire member's potential bias or prejudice as to that
area of the law and, consequently, the effective exercise of a challenge for cause.
Upon further analysis, we again affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
During the early morning hours of February 11, 2009, Officer Michael Miller
observed Appellant's vehicle exit a motel parking lot, cross into an oncoming lane, and
roll through a stop sign. Officer Miller initiated the lights of his patrol car and pulled
Appellant over for traffic violations. After approaching Appellant, Officer Miller noticed
the smell of an alcoholic beverage on Appellant's breath.
According to the officer,
despite the cold weather, Appellant was not wearing a shirt, had red, bloodshot eyes,
and his speech was slurred. Appellant was asked to exit his vehicle and instructed to
perform three field sobriety tests. According to Officer Miller, Appellant was not able to
perform any of the tests satisfactorily and was arrested. He was subsequently charged
with felony driving while intoxicated, enhanced by two prior felony DWIs.
Prior to commencement of voir dire, the trial court announced:
When you're voir diring the jury and we're talking about the standard of
proof, proof beyond a reasonable doubt, I don't allow anybody to talk
about clear and convincing evidence, preponderance of the evidence, and
compare that to proof of beyond a reasonable doubt. I think that confuses
the jury panel, I think it's misleading, so I don't want anybody saying that
you've got to have this much -- a certain quantity of evidence to prove a
civil case and a certain quantity of evidence to prove clear and convincing
standard of proof and you've got to get to this level to prove a criminal
case because that's confusing, and there's no definition of proof beyond a
reasonable doubt, so I don't want anybody voir diring on that issue.
Defense counsel objected on the grounds that he would be unable to intelligently use
his challenges for cause and his representation during voir dire would be rendered
ineffective. Although defense counsel was able to extensively question prospective
jurors about the State's burden of proof of beyond a reasonable doubt, his attempt to
raise the issue again during voir dire was denied and his objection was overruled.
Following presentation of evidence, the jury convicted Appellant and assessed
his sentence at confinement for a term of thirty years. This Court originally determined
the trial court did not err by limiting voir dire to the burden of proof actually before the
Following Fuller, the Court of Criminal Appeals vacated our judgment and
remanded the case to this Court for further analysis. Finding the trial court erred in sua
sponte and preemptively forbidding defense counsel from comparing the two burdens of
proof, we must now determine the effect of that error.
STANDARD OF HARM ANALYSIS
nonconstitutional error that is subject to a harm analysis. Fuller, 363 S.W.3d at 589;
Rich v. State, 160 S.W.3d 575, 577 (Tex.Crim.App. 2005). The proper test for such
error is that set out in Rule 44.2(b) of the Texas Rules of Appellate Procedure, and
under that test a reviewing court should disregard any "error, defect, irregularity, or
variance that does not affect substantial rights" of the appellant. A substantial right is
affected "when the error has a substantial and injurious effect or influence in
determining the jury=s verdict." Id. at 577 (quoting Russell v. State, 155 S.W.3d 176,
179 (Tex.Crim.App. 2005)).
In determining whether error of this type affects the defendant's substantial rights
an appellate court should use an appropriately tailored set of factors to determine
whether the defendant's substantial rights have been affected. See Sanchez v. State,
165 S.W.3d 707, 709 (Tex.Crim.App. 2005).
In that regard, we must consider
everything in the record, including other voir dire questions, the character of the error
and how it might be considered in connection with the appropriate application of the
State's burden of proof, any testimony or physical evidence admitted for the jury's
consideration, the nature of the evidence supporting the verdict, the State's theory of the
case as well as any defensive theories, the jury instructions, closing arguments, and
whether the two burdens of proof were otherwise emphasized or explained. Rich, 160
S.W.3d at 577-78.
Although the trial court refused to allow defense counsel to discuss with the
venire members the differences between the criminal burden of proof of beyond a
reasonable doubt and the civil burdens of proof of clear and convincing evidence and
preponderance of the evidence, the court placed no limitations on counsel's ability to
explain the criminal burden of proof or determine whether individual venire members
could follow their oath and render a verdict according to their own understanding of
reasonable doubt. In fact, the trial court specifically advised defense counsel that he
was permitted to question venire members concerning their individual understanding of
reasonable doubt. While counsel may have been restricted, he was not prohibited from
making a thorough inquiry into each venire member's concept of beyond a reasonable
In fact, during voir dire, the trial court extensively explained the concepts of
presumption of innocence and the State's burden of proving the elements of the
indictment to the satisfaction of the individual jurors, beyond a reasonable doubt.
During its instructions to the jury, prior to any questioning by either the prosecution or
the defense, the court said, in part:
"Not only do they [the prosecution] have the burden of proof, they have to
meet a certain standard of proof, and that standard for a criminal case is
called proof beyond a reasonable doubt. It is the highest level - standard in our system of law."
Likewise, during their respective questioning, both the prosecution and the
defense repeatedly touched upon the concepts of the State's burden of proof and the
requirement that their proof reach the level of beyond a reasonable doubt. Accordingly,
although limited in methodology, Appellant was accorded the opportunity to elicit
pertinent information from every prospective juror.
CHARACTER OF THE ERROR AND HOW IT AFFECTED APPELLANT'S RIGHT
PROSPECTIVE JUROR FOR CAUSE
While the error may have handicapped defense counsel's ability to make a
challenge for cause, it didn't prevent it. Counsel was free to question individual venire
members concerning their concept of reasonable doubt.
Furthermore, he was not
prevented from challenging venire members based on their individual views concerning
what constitutes reasonable doubt and he was even able to successfully challenge
several venire members.
Furthermore, he was not restricted in the exercise of
Appellant's peremptory strikes.
Because Appellant was accorded the means of
preventing a legally disqualified or biased venire member from being seated on the jury,
his right to, and the State's interest in, a fair and impartial jury was not thwarted. See
Sanchez, 165 S.W.3d at 711.
CHARACTER OF THE ERROR AND HOW IT AFFECTED
REASONABLE DOUBT BURDEN OF PROOF
Refusing to allow defense counsel to compare the criminal burden of proof to the
civil burdens of proof in no way shifted that burden to the defense or otherwise lessened
the State's obligation to prove its case beyond a reasonable doubt. As applied to the
facts of this case, the trial court's error in no way affected the proper application of the
reasonable doubt burden of proof.
NATURE OF THE EVIDENCE SUPPORTING THE JURY'S VERDICT
Because no breath or blood test results were obtained which would lead to a
presumption of intoxication, the State's case relied upon the observations of the
witnesses, the credibility of their testimony, and each juror's evaluation of the arresting
The evidence showed Appellant was driving erratically, smelled of
alcohol, had blood-shot, glassy eyes, admitted to have been drinking (although claiming
to have just recently awoken), and was having difficulty following directions. He also
failed field sobriety tests, including the horizontal gaze nystagmus test. Furthermore,
although not a confession of guilt, Appellant does not challenge the legal sufficiency of
the evidence establishing his guilt.
See Motilla v. State, 78 S.W.3d 352, 356
(Tex.Crim.App. 2002) (recognizing that overwhelming evidence can be a factor to be
considered in conducting a Rule 44.2(b) harm analysis).
JURY INSTRUCTIONS AND CLOSING ARGUMENTS
The Charge of the Court recites, in pertinent part:
"In all criminal cases, the burden of proof is on the State.
The defendant is presumed to be innocent of the charge. All persons are
presumed to be innocent, and no person may be convicted of an offense
unless each element of the offense is proved beyond a reasonable doubt.
The law does not require the defendant to prove his innocence or produce
any evidence at all. Unless the jurors are satisfied beyond a reasonable
doubt of the defendant's guilt after careful and impartial consideration of all
the evidence in the case, the presumption of innocence alone is sufficient
to acquit the defendant."
The State's closing arguments emphasized the evidence, contending its burden
of proof had been met.
Appellant's closing arguments took the position that the
evidence did not rise to the level of proof beyond a reasonable doubt. Neither side
attempted to quantify the level of proof necessary to reach that threshold, nor did they
compare it in any way to other burdens of proof.
In summary, our review of the record shows that, although the trial court
improperly limited Appellant's voir dire, the jury was repeatedly and clearly instructed
that the State had the burden of proving Appellant's guilt beyond a reasonable doubt
and there is no evidence that any member of the jury was unable or unwilling to follow
those instructions. Appellant has not challenged the sufficiency of the evidence and
that evidence supports the conviction. The trial court's verbal instructions to the jury, its
written instructions contained in the Charge of the Court, the State's arguments, and
even Appellant's arguments, all reinforced the fact that the State had the undeniable
burden of proving Appellant's guilt beyond a reasonable doubt.
For the foregoing reasons, we hold the trial court's improper limiting of
Appellant's voir dire regarding the differences between the criminal and civil burdens of
proof did not, under the circumstances of this case, have a substantial and injurious
effect or influence on the jury=s verdict. Accordingly, we disregard the error, overrule
Appellant's sole issue, and affirm the judgment of the trial court.
Patrick A. Pirtle
Do not publish.