Opinion issued July 1, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00303-CR
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Norman Ray Baynes, Appellant
V.
The State of Texas, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1169102
MEMORANDUM OPINION
A jury convicted appellant, Norman Ray Baynes, of possession of cocaine, and the trial court assessed punishment at five years in prison. See Tex. Health & Safety Code Ann. §§ 481.102, 481.115 (Vernon 2003 & Supp. 2009). Appellant argues that the trial court erred in explaining proof beyond a reasonable doubt during voir dire. We affirm.
BACKGROUND
Houston Police Officer J. Oliver began following appellant after running the license plate number of appellant’s car and receiving information concerning possible traffic warrants. Officer Oliver initiated a traffic stop when he observed appellant failing to signal a turn. Appellant pulled into a gas station and got out of his car. When Officer Oliver approached appellant and asked for his identification, appellant briefly patted his pockets and then fled, throwing down two pill bottles as the police got closer. Appellant was arrested, and the police collected the pill bottles. One of the bottles contained 15.9 grams of crack cocaine and 2.5 grams of powder cocaine, and the other contained Xanax.
VOIR DIRE
In his only issue on appeal, appellant argues that the trial court erred when it explained “reasonable doubt” during voir dire as follows:
Well, beyond a reasonable doubt in the criminal case is more than [clear and convincing evidence] but less than a hundred percent. Let’s say preponderance of the evidence is 51 percent. In my example let’s just say clear and convincing evidence is 75 percent. So what’s beyond a reasonable doubt? Is somewhere past 75 percent but below a hundred?
Well, there is no definition. Remember, no one can prove anything to you beyond any doubt, beyond a shadow or beyond all doubt unless you saw it. If you did, then you would be close to a hundred percent sure.
So, it’s up to you. It’s something you have to decide based on what you hear. We used to have a definition of “beyond a reasonable doubt” until a few years ago, but basically what it means the bottom line is in your own mind what is the level of proof that conveniences [sic] you beyond a reasonable doubt in your own mind that something is true or not true, or a fact is not a fact.
Citing Wansing v. Hargett, appellant argues that the trial court’s voir dire comments on reasonable doubt diminished the State’s burden of proof because they suggested, as the Wansing court found the trial court there to suggest, that there was “an extraordinarily broad range of possible meanings [of reasonable doubt] including some which are plainly unconstitutional . . . .” 341 F.3d 1207, 1214 (10th Cir. 2003). The State responds that error, if any, was waived because appellant did not object to the trial court’s comments. Appellant replies that the comments undermined the presumption of innocence by unconstitutionally lowering the State’s burden of proof and thus constituted fundamental error that did not require an objection.
As a general rule, trial counsel must object to preserve error, even if the error or complained-of action is incurable or unconstitutional. See, e.g., Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (incurable argument); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (constitutional violation). However, an objection is not required for fundamental error. See Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000). Appellant relies on Blue v. State in support of his contention that the court’s comments were such error. In Blue, a plurality of the Court of Criminal Appeals held that a trial court’s comments during voir dire that “tainted [the defendant’s] presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection.” Id. at 132. The trial court apologized to the venire for its long wait, explained that the delay had occurred because the defendant was indecisive on whether to accept a plea bargain, and expressed its preference that the defendant plead guilty. Id. at 130.
Even if Blue were precedential,[1] it is distinguishable. In Blue, the trial court expressed its view regarding appellant’s guilt or decision to go to trial. No such tainting of the presumption of innocence occurred in this case because the trial court’s comments did not speak directly to the guilt or innocence of the defendant.
Nor did these comments unconstitutionally lower the State’s burden of proof, which appellant argues necessarily leads to a tainting of the presumption of innocence, because the comments merely instructed the jurors to use their common sense. See Rogers v. State, 795 S.W.2d 300, 306 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) (holding that trial court’s comment that “the bottom line is going to be what beyond a reasonable doubt is to you” was not error because court was merely telling jurors to use their common sense). In Rogers, the trial court’s instructions did not set out an affirmative definition of reasonable doubt, but instead attempted to explain what reasonable doubt did not mean. Id. That is precisely what the trial court here attempted to do with its percentage examples by demonstrating that reasonable doubt does not simply mean 76% or greater. It also explicitly stated that no definition of reasonable doubt exists.
The trial court’s comments did not taint the defendant’s presumption of innocence, either directly or indirectly, and were not fundamental error of a constitutional dimension requiring no objection under Blue. By failing to object to the trial court’s comments on reasonable doubt, appellant thus waived error. See Tex. R. App. P. 33.1.
CONCLUSION
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Sharp. Justice Sharp, concurring.
Do not publish. Tex. R. App. P. 47.2(b).
[1] A plurality opinion is not binding precedent. See Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).