James Ollie Meadows v. State ( 2010 )

Opinion issued July 22, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00443-CR

NO. 01-09-00444-CR

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James Ollie Meadows, Appellant

V.

The State of Texas, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause Nos. 1143853 & 1143854

MEMORANDUM OPINION

          James Ollie Meadows was charged by indictment with committing aggravated robbery with a deadly weapon against complainant Thomas Welsh (trial court cause number 1143853) and complainant Christian Chudleigh (trial court cause number 1143854).  These cases were tried together.  A jury convicted Meadows of aggravated robbery in both cases and assessed punishment at thirty years’ confinement in prison.  In his sole issue, Meadows contends that the trial court reversibly erred by incorrectly describing the State’s burden of proof during voir dire and by permitting the prosecutor to do the same.  Because Meadows failed to raise these objections at trial and because we conclude these complaints do not constitute fundamental error, we affirm.

Background

A few weeks before Christmas 2007, Brandi Moerbe spent an evening with friends Christian and Cindy Chudleigh, celebrating Cindy’s birthday.  Just before midnight, the Chudleighs drove Brandi to her car, which she had parked near their townhouse.  Moments after Brandi began to drive home, a vehicle bumped her car from behind, pushing the front of her car into a ditch and the rear wheels off the ground.  Brandi immediately called Cindy and Christian, who met her several minutes later and parked their car across the street from the ditch. 

A dark-colored sedan drove up and parked near Brandi’s car. Meadows got out of the car and offered to help in exchange for money.  Meadows was accompanied by another man and a woman.  Although his offer of assistance was initially declined, Meadows insisted on helping, getting into Brandi’s car and trying to move it.  While the men worked to move Brandi’s car, Brandi and Cindy moved Brandi’s personal belongings from her car to the Chudleighs’ car across the street. 

Meadows told the group that he was going to get a rope from his car.  Instead, he returned with a sawed-off shotgun.  At trial, Brandi, Cindy, Christian, Thomas, and a neighbor who watched the robbery from her nearby apartment all testified consistently about what happened next.  Meadows stood in the middle of the street and ordered all of them to get on the ground and give him their money.  He ordered Thomas, who was calling a tow truck, to get off of the phone.  He held the men at gunpoint and demanded money; then he walked across the street, held the women at gunpoint, and demanded money and personal items.  The man who accompanied Meadows stayed with the men while Meadows robbed the women. 

Meadows and the other man returned to their car and attempted to leave, but their car would not start.  Meadows again held Cindy at gunpoint and threatened to kill her if she did not give him the keys to her car.  Cindy did not have the keys.  Fearing for his wife’s life, Christian yelled to Meadows that he had the keys to the car. While Meadows was distracted, Brandi and Cindy ran to the safety of a neighboring townhouse, where the neighbors called the police.  Christian did not have the keys to his car, either, but Thomas gave Meadows the keys to his truck instead.  Meadows fled, using Thomas’s truck to push his car away from the scene of the robbery.

When the police arrived, Thomas described his truck and gave them his license-plate number.  The police apprehended Meadows and his accomplice after a high-speed car chase followed by a foot chase.  Meadows and his accomplice were found with Thomas’s truck and the money and belongings taken during the robbery.  Within approximately 20 to 30 minutes of the robbery, the police brought the men back to the scene of the robbery for a show-up identification.  Brandi, Cindy, Christian, and Thomas separately looked at Meadows and positively identified him as the man who had just robbed them at gunpoint.  Each testified that he or she had had a good opportunity to see Meadows’s face earlier because the area was well-lit by both streetlights and holiday lights and because of the time that he spent ostensibly trying to help move Brandi’s car.  Each witness testified that he or she was positive that Meadows was the robber at the time of the show-up identification; each also positively identified him as the robber at trial.  For example, Cindy testified that she was so certain it was Meadows at the time of the show-up identification, “I would have put my life on the line for it.  I mean I’m just that certain.”  She testified that she was equally certain in court.

In addition to the testimony from the complainants, a neighbor, who watched the robbery from her bedroom window, testified consistently about the robbery.  She also positively identified Meadows at the show-up identification and in court as the man who held the gun.

At trial, Meadows denied any involvement in the crime. Meadows testified that he was walking around Houston looking for a bus stop because he had taken the wrong bus and gotten lost.  He said he rented Thomas’s stolen truck from a man whose name he did not know, who had solicited him for illegal drugs.  Meadows said the alleged “drug rental” was for an unspecified amount of time and that he had planned to drive up and down the street where he encountered the unknown man to see if he would show up to claim the truck. 

The jury convicted Meadows of robbing both Christian and Thomas.  On appeal, Meadows complains about alleged error during jury selection, which he contends reduced the State’s burden of proof.  During voir dire, the trial court explained the State’s burden of proof to prospective jurors as follows:

If they prove everything beyond a reasonable doubt, then you must vote guilty.  Everybody kind of understand that?  Pretty straight forward.  Beyond a reasonable doubt will not be defined for you.  Once upon a time we had a definition.  The appellate courts said we don’t need definitions.  Jurors are smart people.  They know what beyond a reasonable doubt is.  You know, kind of like obscenity, you know it when you see it, that kind of thing.

But we do know from case law that it is a very high standard but it’s not 100 percent proof.  There are four different burdens of legal proof in the law . . . there are four different standards in the law: Probable cause, which is the standard the grand jury uses, the lowest; then preponderance of the evidence, the mere tipping of the scales, anything more than 50 percent, which is what you use in civil law; and then clear and convincing evidence, which is the standard to take your children away from you or to commit you to a mental hospital; and then, finally, the highest standard, which is beyond a reasonable doubt.

And the reason we use that in our criminal courts is because someone could lose their liberty and go to prison, and that’s why it’s the highest standard of all.  But although we know it’s a very high standard, it is not 100 percent proof.  Because how could anybody prove to you 100 percent that something happened unless you were there and you saw it with your own eyes?  And then, of course, you would be a witness.  You would not be on the jury.

Does everyone think beyond a reasonable doubt is a fair standard?  Can everyone follow that standard in deciding if the defendant is guilty or not guilty?  We know it’s a high standard, and we know it’s less than 100 percent.  But if you think of it in terms of percentages, it’s whatever it means to you.  For some people it is like 80 percent or 85.  For some people it’s 90 or 95.  For some people it may be 99 percent proof.  So, that’s up to you, as long as it’s a high burden.  But it is not 100 percent.

The defendant, of course, gets the presumption of innocence.  Everybody remember innocent until proven guilty?

The prosecutor also commented on the State’s burden of proof during voir dire:

What’s my burden?  Beyond a reasonable doubt. A reasonable doubt.  Notice it’s not beyond all doubt.  No.  It’s not beyond a shadow of doubt.  No because that exist[s] in what?  TV.  We all know that.  You’ve seen Perry Mason, Law & Order. Beyond a shadow of a doubt, beyond all doubt.  The reality is I can’t prove something to you beyond all doubt.  Why is that?  You’d have to be there and if you were there what would you be?  Witness.  A witness.  So the law doesn’t allow us to define beyond a reasonable doubt but we often times equate it to common sense.  Use your common sense and that’s all that we’re asking for is that you use your common sense.

          Meadows’s trial counsel did not object to either the trial court’s or the prosecutor’s descriptions of “reasonable doubt.”           

Analysis

          In his sole issue, Meadows contends that the descriptions of reasonable doubt lowered the State’s burden of proof to a level below that which would satisfy constitutional requirements.  

Preservation of Error

          Ordinarily, to preserve an error for appellate review, the complaining party must make a “timely, request, objection, or motion.”  Tex. R. App. P. 33.1(a)(1); see Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999) (holding that appellant waived complaint about trial court’s explanation of reasonable-doubt standard during voir dire by failing to renew objection when trial court repeated explanation); see also Moore v. State, 907 S.W.2d 918, 923 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (holding that appellant waived complaint about trial court’s comment during voir dire about weight of evidence); Espinosa v. State, 194 S.W.3d 703, 708 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (“When appellant complains about an improper remark by the prosecutor during voir dire, appellant must object when the remark is made.”).  Meadows did not object to either the trial court’s or the prosecutor’s comments during voir dire.  Thus he has waived his complaints on appeal, see Tex. R. App. P. 33.1(a)(1), unless the alleged error of which he complains was a fundamental error affecting substantial rights, in which case no objection is necessary to preserve error.  Tex. R. Evid. 103(d).

Relying on Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality op.), Meadows argues that no objection was necessary because the voir dire comments challenged on appeal undermined his presumption of innocence and created an unacceptable risk that the jury did not apply a sufficiently high standard of proof in determining his guilt.

In Blue, the Court of Criminal Appeals held that an appellant need not always object to voir dire statements to preserve error.  In that case, the trial court apologized to the venire panel for a long delay, told them that the delay was caused by the defendant’s indecision about whether to take a plea bargain, and noted that it would have preferred the defendant to plead guilty.  Blue, 41 S.W.3d at 130.  Because these comments compromised the defendant’s presumption of innocence, the Court of Criminal Appeals held that no objection was necessary to preserve the issue for appellate review.  Blue, 41 S.W.3d at 132–33.

Some constitutional rights may be waived if the proper request, objection, or motion is not asserted in the trial court.  See Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (noting that almost every constitutional and statutory right may be waived by failing to object in trial court). But some legal rights cannot be forfeited.  See Saldano v. State, 70 S.W.3d 873, 887–88 (Tex. Crim. App. 2002); Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).  For example, “absolute, systemic rights,” like jurisdiction over the person or subject matter of the case, may be raised for the first time on appeal.  See Saldano, 70 S.W.3d at 887–88; Marin, 851 S.W.2d at 279.

“It is an unresolved issue whether and when a trial court’s comments constitute fundamental constitutional due process error that may be reviewed in the absence of a proper objection.”  McLean v. State, No. 01-08-00466-CR, 2010 WL 335611, at *4 (Tex. App.—Houston [1st Dist.] Jan. 28, 2010, no pet.) (noting that Blue is a non-binding plurality opinion); see also Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (same); Marshall v. State, No. 01-08-00734-CR, 2009 WL 3400977, at *3 (Tex. App.—Houston [1st Dist.] Oct. 22, 2009, pet. ref’d) (same).  Three cases illustrate relevant circumstances in which such allegations were held not to constitute fundamental error.

In Jasper v. State, the defendant argued that the trial court’s comments during testimony unfairly prejudiced him.  Jasper, 61 S.W.3d at 421. The Court of Criminal Appeals found no fundamental error because the judge’s comments—correcting a misstatement or misrepresentation of previously admitted testimony, maintaining control and expediting the trial, and displaying annoyance toward the defense counsel—did not rise “to such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury.”  Id. 

Likewise, in McLean v. State, an appeal from a conviction for prostitution, the trial court expressed an opinion during voir dire that prostitution is not a victimless crime.  The defendant argued on appeal that the trial court’s comments conveyed the judge’s opinion of the case.  McLean, 2010 WL 335611, at *1–2.  This Court held that the error, if any, was not fundamental because the trial court’s comments did not bear on the defendant’s presumption of innocence or vitiate the impartiality of the jury, especially in light of the trial court’s granting of numerous motions in limine sought by the defendant and correctly instructing the jury in its charge.  Id. at *5.

Finally, in Marshall v. State, the defendant argued that the trial court’s voir dire comments about reasonable doubt impermissibly lowered the State’s burden of proof.  Marshall, 2009 WL 3400977, at *1–2.  The trial court stated, “Basically I guess the Legislature figures everybody is reasonable and they would know a reasonable doubt when they see it.”  Id. at *1.  This Court held that there was no fundamental error because the trial court’s comments did not taint the presumption of innocence or vitiate the impartiality of the jury.  Id. at *3.

We now consider the allegedly harmful voir dire statements to determine whether Meadows has alleged fundamental error.

The Trial Court’s Comments

          Meadows challenges two comments that the trial court made during voir dire about the concept of reasonable doubt: (1) that the jurors would know reasonable doubt when they saw it and (2) that proof necessary to satisfy a juror beyond a reasonable doubt was “whatever it means to you.”  The trial court’s first statement, “You know, kind of like obscenity, you know it when you see it, that kind of thing,” was part of a longer comment comparing and contrasting the various burdens of proof used in legal cases.  Unlike the comments made by the trial court in Blue, which conveyed the trial court’s opinion that Blue was guilty, this statement by the trial court did not convey any opinion as to Meadows’s guilt or innocence.  See Marshall, 2009 WL 3400977, at *3; see also Ayala v. State, No. 01-03-00386-CR, 2004 WL 1233997, at *2 (Tex. App.—Houston [1st Dist.] June 3, 2004, pet. ref’d) (not designated for publication) (holding that trial court did not err by explaining during voir dire that reasonable doubt is “kind of like pornography . . . you know it when you see it”); Zamora v. State, No. 13-04-00155-CR, 2008 WL 1822512, at *1 (Tex. App.—Corpus Christi Apr. 24, 2008, pet. ref’d) (not designated for publication) (holding that trial court did not err by instructing the jury, “I think reasonable doubt is kind of like a story they used to tell on an old elderly Supreme Court Justice . . . And he said, well, I don’t know really the definition of pornography, but I know it when I see it.  Reasonable doubt is a lot the same way.”). 

          The other statement by the trial court was similar to that considered in Copeland v. State, in which the Fourteenth Court of Appeals concluded that the trial court did not abuse its discretion by overruling the appellant’s objection to the prosecutor’s statement that reasonable doubt is “whatever it means to you.”  No. 14-07-00475-CR, 2008 WL 4735199, at *2 (Tex. App.—Houston [14th Dist.] Oct. 30, 2008, pet. ref’d) (not designated for publication).  In Copeland, as here, the appellant relied on Wansing v. Hargett, a habeas corpus case from the Tenth Circuit, to support his contention that the prosecutor’s statement was erroneous.  See 341 F.3d 1207 (10th Cir. 2003).  Relief was granted in Wansing because the trial court’s comments about the meaning of “reasonable doubt” in that case sufficiently emphasized subjectivity so as to include unconstitutionally low burdens such as a “stubborn refusal to budge even in the face of the strongest possible reasons.”  Id. at 1214.  The Fourteenth Court of Appeals distinguished Wansing by noting that under Texas law, jurors must determine what proof beyond a reasonable doubt means to them, and the prosecutor’s statement was not erroneous.  Copeland, 2008 WL 4735199, at *2 (citing Murphy v. State, 112 S.W.3d 592, 597 (Tex. Crim. App. 2003)); see Garrett v. State, 851 S.W.2d 853,  (Tex. Crim. App. 1993) (“[A] n individual juror must determine what proof beyond a reasonable doubt means to him, for the law does not tell him.”).  We likewise conclude that the trial court’s statement “it’s whatever it means to you” did not misstate Texas law or otherwise unfairly lower the burden of proof such as to amount to fundamental error.  See Rogers v. State, 795 S.W.2d 300, 306 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) (trial court’s statement to venire panel that “the bottom line is going to be what beyond a reasonable doubt is to you” held not to be fundamental error).

The Prosecutor’s Comments

          Meadows also challenges the prosecutor’s voir dire statements, which urged the jurors to use their common sense: “So the law doesn’t allow us to define beyond a reasonable doubt but we often times equate it to common sense. Use your common sense and that’s all that we’re asking for is that you use your common sense.”  Meadows’s own trial counsel also described the State’s burden of proof in relation to common sense:

Like the Judge said it could be up to some people as much as 98, 99 percent.  It can’t be the hundred percent remember but it can be in the high nineties easily if you’re a common sense person but you give your common sense experiences to that and the only way you can convict is if they push that burden of proof beyond a reasonable doubt.

For the reasons discussed above, this statement by the prosecutor did not compromise the presumption of innocence as did the trial court’s statements in Blue, and we conclude it did not constitute fundamental error.  See Mitchell v. State, No. 01-07-00289-CR. 2008 WL 4530683, at *5 (Tex. App.—Houston [1st Dist.] Oct. 9, 2008, pet. ref’d) (not designated for publication).

CONCLUSION

We conclude that neither the trial court’s comments nor the prosecutor’s comments amounted to fundamental error.  Therefore, Meadows was required to object to preserve this issue for appellate review. Because he failed to object, Meadows failed to preserve his appellate issue. 

We overrule Meadows’s sole issue, and, we affirm the judgments of the trial court.

                                                                   Michael Massengale

                                                                   Justice

Panel consists of Justices Alcala, Massengale, and Wilson.[*]

Do not publish.   Tex. R. App. P. 47.2(b).

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[*]           The Honorable Davie Wilson, retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment. See Tex. Gov’t Code Ann. § 74.003(h) (Vernon 2005).