IN THE

TENTH COURT OF APPEALS

No. 10-11-00383-CR

WILLIE CONTRERAS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2011-1337-C1

O P I N I O N

Appellant, Willie Contreras, appeals from his conviction for murder, a firstdegree felony. See TEX. PENAL CODE ANN. § 19.02(b)-(c) (West 2011). In one issue, 

Contreras contends that the trial court erred by prohibiting defense counsel “from 

making a comparison between the different burdens of proof established in Texas 

jurisprudence.” Because we find the complained-of error to be harmless, we affirm.
Contreras v. State Page 2

I. BACKGROUND

In this case, Contreras was charged by indictment with the murder of seventeenyear-old Nathan Romo. See id. The trial in this matter commenced on September 27, 

2011. During voir dire, appellant’s counsel requested that he be allowed to compare the 

civil preponderance-of-the-evidence standard with the criminal beyond-a-reasonabledoubt standard to ensure that jurors understood the distinctions between the standards. 

The trial court denied appellant’s request to make such a comparison.

At the conclusion of the evidence, the jury convicted Contreras of the charged 

offense and sentenced him to life imprisonment in the Institutional Division of the 

Texas Department of Criminal Justice. This appeal ensued.

II. VOIR DIRE AND THE STANDARDS OF PROOF

In his sole issue on appeal, Contreras complains that the trial court erred in 

prohibiting him from contrasting the different standards of proof during voir dire. 

A. Appellant’s Request

During voir dire, the following colloquy transpired:

[Defense counsel]: Yes, Your Honor. My second request, Your Honor, I 

know the Court has a policy of not permitting voir 

dire on the different burdens of proof, civil, 

preponderance, and criminal, beyond a reasonable 

doubt and drawing distinctions.

THE COURT: The standards of proof.

[Defense counsel]: The standards of proof. I would point out to the 

Court that there are 10 jurors in the strike zone this 

morning who have prior civil jury service, and I 

would want to question them to be sure that they 

understand that the burden of proof that they applied 
Contreras v. State Page 3

in that civil trial is not the same as beyond a 

reasonable doubt. I believe the Court’s instructions 

generally are, beyond a reasonable doubt is not 

beyond all doubt, that sort of thing, and it’s kind of 

up to individual jurors to decide for themselves.

. . . .

[Defense counsel]: But I would request that I be permitted to talk to these 

particular jurors, and I’ll identify them as 1, 3, 9, 12, 

13, 20, 26, 27, 29, and 31, who are within the strike 

zone, and then Jurors 35, 39, 44, and 48, who are out 

of the strike zone, who have all indicated prior civil 

jury service, and we would like to question them to be 

sure they understand the distinction. If the Court 

chooses not to permit that, we would argue that that 

would deny our right to exercise our peremptory 

challenges intelligently.[1]

THE COURT: What is it you wish to ask them? What inclination do 

you wish to give?

[Defense counsel]: I would ask them—remind them that the standard in 

the trials that they served in was a preponderance of 

the evidence and ask them if they understand that the 

burden in this case is a greater burden.

THE COURT: And what do you mean by “a greater burden”?

[Defense counsel]: Judge, my understanding of the standard of proof is 

that beyond a reasonable doubt requires more than 

just a 51 percent proof.

. . . .

THE COURT: Because that’s not true. That’s simply not the case. 

There is no statute or case or rule that has ever said 

that this 51 percent—it requires 51 percent of the 

facts. . . .

 

1 The record reflects that, of the jurors listed by appellant’s counsel, only jurors 1, 9, 12, and 20 

served on the jury in this case.
Contreras v. State Page 4

. . . .

THE COURT: It does not require. Reasonable doubt as it is applied 

in a criminal case does not require a greater amount 

of evidence or a greater amount of proof, because you 

may can [sic] argue [that it] requires a greater degree 

of certainty in the mind of the juror, but if a juror is 

able to listen to the evidence and apply whatever 

standard or whatever definition they wish to give to 

proof beyond a reasonable doubt, that’s adequate, 

and there is no way to quantify, is there?

. . . .

THE COURT: That’s the reason I don’t allow a comparison of those 

standards, because it’s meaningless and, in fact, it’s 

misleading, because one jury can hear a certain set of 

facts and not be convinced by a preponderance of the 

evidence that that standard was being used, and 

another set of jurors or a juror might hear exactly 

those same facts and be convinced beyond a 

reasonable doubt on those same facts, because it’s not 

determined by how many witnesses are called or how 

much evidence is introduced. It’s simply an abstract 

concept in the mind of the juror, and that’s the reason 

I don’t allow that comparison, and I’m not going to in 

this case.

[Defense counsel]: I understand that, Judge. I still respectfully disagree, 

but I understand your ruling.

THE COURT: Okay. Thank you. Anything else?

[Defense counsel]: Nothing further, Your Honor.

B. Applicable Law

The trial court has broad discretion over the process of selecting a jury. Sells v. 

State, 121 S.W.3d 748, 755 (Tex. Crim. App. 2003). We leave to the trial court’s discretion 

the propriety of a particular question and will not disturb the trial court’s decision 
Contreras v. State Page 5

absent an abuse of discretion. Id. A trial court abuses its discretion when it prohibits a 

proper question about a proper area of inquiry. Id. at 755-56. “A question is proper if it 

seeks to discover a juror’s views on an issue applicable to the case.” Id. at 755. 

“However, an otherwise proper question is impermissible if the question attempts to 

commit the juror to a particular verdict based on particular facts.” Id. “In addition, a 

trial judge may prohibit as improper a voir dire question that is so vague or broad in 

nature as to constitute a global fishing expedition.” Id.

C. Discussion

Contreras was tried in September 2011, and in March 2012, the Texas Court of 

Criminal Appeals decided Fuller v. State, 363 S.W.3d 583 (Tex. Crim. App. 2012). In 

Fuller, the Court stated that the jury’s ability to apply the correct standard of proof 

remains an issue in every criminal case. Id. at 587. The Court then held that inquiry 

into whether a prospective juror understands that proof beyond a reasonable doubt 

must at least constitute a more onerous standard of proof than preponderance of the 

evidence and clear and convincing evidence is permissible.2 Id. (“[I]nquiry into a 

 

2

In Fuller, defense counsel made the following request, which is somewhat similar to the request 

made in this case:

Judge, I would request that I be allowed to ask each and every member of the 

venire panel if they understand that proof beyond a reasonable doubt is the highest 

burden that we have under the law, that it’s higher than clear and convincing evidence. I 

would like to explain to them that clear and convincing evidence is the type of burden 

that might be used when someone is committed to an involuntary health institution or 

when someone is trying to terminate someone’s parental rights.

I would like to explain to them that it’s higher than—I probably would have 

started at the other end—but higher than the preponderance of the evidence, which is 

just over 50 percent and that’s the kind of burden that might be used in a civil lawsuit 

when someone is suing over money.
Contreras v. State Page 6

prospective juror’s understanding of what proof beyond a reasonable doubt means 

constitutes a proper question regardless of whether the law specifically defines that 

term.”) (emphasis in original). The Court further stated that it is appropriate to explain 

the contrast among the various standards of proof. Id. at 588. Therefore, in light of 

Fuller, we conclude that the trial court erred in refusing to allow defense counsel to 

question prospective jurors about their understanding of the various standards of proof. 

See id.; see also Dinkins v. State, 894 S.W.2d 330, 343-45 (Tex. Crim. App. 1995) 

(concluding that the trial court abused its discretion in failing to permit appellant to ask 

a prospective juror whether he could adhere to the definition of reasonable doubt that 

was provided under the law at the time, but that the error was harmless).

 However, the denial of appropriate questioning during voir dire constitutes nonconstitutional error that is subject to harm analysis. See Fuller, 363 S.W.3d at 589; Rich v. 

State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005); see also Easley v. State, No. 10-12-00018-

CR, 2012 Tex. App. LEXIS 7859, at *3 (Tex. App.—Waco Sept. 13, 2012, no pet. h.) (mem. 

op., not designated for publication). A reviewing court should disregard any “error, 

defect, irregularity, or variance that does not affect substantial rights” of the appellant. 

TEX. R. APP. P. 44.2(b). A substantial right is affected “when the error has a substantial 

and injurious effect or influence in determining the jury’s verdict.” Rich, 160 S.W.3d at 

577. In conducting the harm analysis, we consider everything in the record, including 

any testimony or physical evidence admitted for the jury’s consideration, the nature of 

 

I would like to ask them if they understand that proof beyond a reasonable 

doubt is the highest burden we have anywhere in our legal system.

Fuller v. State, 363 S.W.3d 583, 584 (Tex. Crim. App. 2012).
Contreras v. State Page 7

the evidence supporting the verdict, the character of the alleged error and how it might 

be considered in connection with other evidence in the case, the jury instructions, the 

State’s theory and any defensive theories, closing arguments, voir dire, and whether the 

State emphasized the error. Id.

During voir dire, the trial court instructed the jury panel that, at all times, the 

State has the burden of proof; that the State has to produce evidence; and that Contreras 

did not have to produce evidence because he is presumed innocent. The trial court also 

thoroughly discussed the beyond-a-reasonable-doubt standard of proof. And despite 

not being allowed to compare the civil and criminal standards of proof, Contreras was 

accorded the opportunity to elicit pertinent information regarding the standard of proof 

to determine whether individual venire members could follow their oath and render a 

verdict according to their own understanding of reasonable doubt. Moreover, 

Contreras was not prevented from challenging venire members based on their 

individual views concerning what constitutes reasonable doubt, nor was he restricted in 

the exercise of his peremptory strikes.

Several witnesses testified at trial that Contreras was present at Guthrie Park on 

the night of the incident; that he fired shots at the pickup truck in which Romo was 

driving and several others were passengers; and that, as a result of those shots, Romo 

was killed. Contreras admitted at trial that he fired shots that night, but he denied 

intending to kill Romo. Nevertheless, the jury is entitled to judge the credibility of 

witnesses and can choose to believe all, some, or none of the testimony presented by the 

parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Contreras does 
Contreras v. State Page 8

not challenge the sufficiency of the evidence to support his conviction. See, e.g., 

Anderson, 2012 Tex. App. LEXIS 6232, at *8.

In addition, the charge instructed the jury that the State has the burden of proof 

and must prove each element of the charged offense beyond a reasonable doubt. And 

during closing arguments, defense counsel emphasized that the State had “failed to 

prove beyond a reasonable doubt either that [appellant] intended to cause the death of 

someone in that truck or that he knowingly caused the death of someone in that truck.” 

And finally, we note that the error in denying questions comparing the standards of 

proof did not shift the burden to the defense or lessen the State’s obligation to prove its 

case beyond a reasonable doubt. See, e.g., Easley, 2012 Tex. App. LEXIS 7859, at **4-5 

(citing Anderson v. State, No. 07-10-139-CR, 2012 Tex. App. LEXIS 6232, at **5-10 (Tex. 

App.—Amarillo July 30, 2012, no pet.) (mem. op. on remand, not designated for 

publication)).

Based on the foregoing, we conclude that the trial court improperly limited 

Contreras’s voir dire; however, the jury was properly and clearly instructed that the 

State had the burden of proving guilt beyond a reasonable doubt. See, e.g., Anderson, 

2012 Tex. App. LEXIS 6232, at *9. Accordingly, we find that the trial court’s improper 

limiting of voir dire did not have a substantial and injurious effect or influence on the 

jury’s verdict. See TEX. R. APP. P. 44.2(b); see also Easley, 2012 Tex. App. LEXIS 7859, at 

*6; Anderson, 2012 Tex. App. LEXIS 6232, at *10. We overrule Contreras’s sole issue on 

appeal.
Contreras v. State Page 9

III. CONCLUSION

Having overruled Contreras’s sole issue on appeal, we affirm the judgment of 

the trial court.

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed October 25, 2012

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