COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JESSE AROCHA,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee. 

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No. 08-07-00108-CR

Appeal from

 399th District Court

of Bexar County, Texas

(TC # 2006CR0870A)

O P I N I O N

Jesse Arocha appeals his conviction of burglary of a habitation. A jury found him guilty and

the trial court assessed punishment at a fine of $1,500 and imprisonment for six years but suspended

the sentence and placed Appellant on community supervision for six years. The Texas Supreme

Court transferred the appeal to this Court by docket equalization order entered on April 2, 2007. For

the reasons that follow, we affirm.

FACTUAL SUMMARY

On November 7, 2005, Audrie Herrera took her two youngest children to school at

approximately 6:45 a.m. and then dropped her husband off at work at 7 a.m. Herrera’s oldest son,

twelve-year-old Jeremy, did not join them because he walked to school. After dropping off the

children, Herrera went to pay her electric bill and returned home around 8 a.m. Nobody was at her

house when she returned and there were no vehicles in the driveway. After entering the house,

Herrera noticed that her DVD player was missing. She went into her bedroom and noticed that the

closet door and drawers were open as if someone had been looking for something. Upon seeing that

some DVDs were also missing, she thought Jeremymight have taken the player and DVDs or loaned
them to one of his friends without asking. Herrera immediately drove to Jeremy’s school to speak

with him about it before classes started. But Jeremy said he did not know what she was talking

about and they went together back to the house. Herrera pulled onto their street about 8:15 a.m. and

noticed a gray vehicle in front of her home facing the wrong direction. A darker Hispanic male was

in the driver’s seat and a lighter Hispanic male was in the rear passenger seat. Both of them were

wearing white tee shirts. Herrera also saw an African-American male running from her home toward

the gray car and carrying something under his arm. He slid over the trunk and got into the right

front passenger seat. Herrera “floored it” and attempted to block the gray vehicle from exiting the

cul-de-sac, but she was going too fast and struck the right front quarter panel of the other car,

effectively pinning it against the curb. The impact also flattened the right front tire of the gray car.

At trial, Herrera made a positive in-court identification of Appellant as the driver. She had seen the

faces of the three men who were shocked she had hit their car. Appellant threw the car in reverse

and Herrera could hear the tires squealing as he tried to get away. The gray car was finally freed and

it left, although one of its hubcabs had fallen off as a result of the collision. Herrera told Jeremy to

run to the neighbors and call 911, and she ran after the gray car to see in which direction it had gone.

The police arrived quickly. Herrera described the vehicle and the three men, and told the officers

the direction in which theywere traveling. Herrera went inside her home with the officers and found

a broken kitchen window in the rear of the house. She also discovered that several music CDs, her

son’s Playstation, and a pink pillowcase were also missing. She told the police what items had been

taken in the burglary. After a few minutes, the officers escorted Herrera and her son to a nearby

apartment complex and asked whether she recognized any of the vehicles there. Herrera saw the

gray Honda and told the officers it was the same car. The officers then told her they had three

suspects in custody. While Herrera and Jeremy sat in the back seat of a patrol car, the police brought
the suspects into view one-by-one and they viewed each suspect from a distance of about twenty feet.

She and Jeremy identified the three men as the same ones they had seen just minutes before at their

house. Basing her identification on his face, Herrera identified Appellant as the driver. The police

later showed Herrera numerous items of property recovered from the gray Honda. She identified the

following as her property taken in the burglary: thirty-five DVD movies, five Playstation games,

forty-two music CDs, two CD players, earphones, a Cyberhome DVD player, and a pink pillowcase.

Officer Thomas Jefferson of the San Antonio Police Department was dispatched to Herrera’s

house and he spoke with her about the morning’s events. She told him her home had been

burglarized and she had struck their car with her car as they tried to leave. Herrera also provided a

description of the three suspects. The first suspect was a black male wearing a white shirt and black

headband or “do-rag” whom she saw leave her home and get into the front passenger seat of a gray

Honda Civic. The second suspect was the driver, and the third suspect was sitting in the rear

passenger seat. Jefferson immediately put out over the radio the description of the suspects, the

vehicle, and the direction they were traveling. Jefferson remained at the house with Herrera to

preserve evidence and he continued to gather information about the burglary and the property taken.

Five to seven minutes after making the radio report, a police officer notified Jefferson that he had

made contact with possible suspects and a vehicle matching Herrera’s description at a nearby

apartment complex. Jefferson took Herrera and her son to the complex and she identified a gray

Honda. Herrera and her son first viewed Joseph Stewart, an African American male, and both

identified him as the person seated in the front passenger seat. They next viewed Appellant and both

identified him as the driver. Finally, the officers presented Jacob Lao and Herrera and Jeremy

identified him as the person seated in the back seat of the Honda.

Officer Eduardo Rodriguez of the San Antonio Police Department was dispatched to a
burglary in progress and he arrived in approximately one minute. Herrera told him that two Latin

males and one black male had fled in a gray Honda. She also stated that the vehicle had damage to

its right front quarter panel and a flattened tire and she indicated the direction in which the gray

Honda had traveled when the suspects fled. Rodriguez could see that the suspects’ vehicle had left

a trail for him to follow because the rim was making contact with the asphalt. Rodriguez followed

the trail to an apartment complex located near Herrera’s house. Looking at the vehicles in the

parking area, Rodriguez quickly found a gray Honda Civic with damage to the right front quarter

panel and two Hispanic males were changing the right front tire. Rodriguez also noticed that the

hubcap was missing. Rodriguez identified Appellant as one of the two males. As Rodriguez exited

his patrol car and approached, both Appellant and the other male, Jacob Lao, appeared extremely

nervous and kept asking Rodriguez why he was there. Fearing Appellant and Lao might flee,

Rodriguez handcuffed them. Other officers found the third suspect, Joseph Stewart, in the apartment

complex. 

Jose Arias, a crime scene technician with the San Antonio Police Department, photographed

and processed evidence at Herrera’s home and at the apartment complex. Arias collected the hubcap

which had been torn off of the suspect vehicle and left in the street near Herrera’s car. When Arias

processed the gray Honda at the apartment complex, he found items which matched the

complainant’s description of property taken in the burglary. He took the property to Herrera’s home

and she identified it as the property taken during the burglary that morning. Arias also processed for

fingerprints the complainant’s home, the recovered property, and the gray Honda. He collected three

latent print cards from the exterior surface on top of the trunk lid, two latent print cards from the

exterior surface of the Honda’s right rear window, and one on the window screen at the burglars’

point of entry into the home.
Vernon Ginn, a fingerprint examiner, matched the latent print taken from the exterior trunk

of the gray Honda with the known print of Joseph Stewart, the individual both Herrera and Jeremy

described as leaping and sliding across the trunk as he fled. Ginn was unable to match any of the

other latent prints.

Jeremy Vasquez, the complainant’s son, testified at trial. Everyone else in the family had

already left the house when Jeremy left for school around 7:30 a.m. He was hanging out with his

friends before school started when his mother approached and asked what he had done with the DVD

player. He told her he did not know what she was talking about so she took him to the car and they

drove back home. While they were stopped at a light, they could see a silver Honda Civic parked

in front of their house. His mother did not recognize the car and she sped toward the house. Just

as they got close, they saw a black male with something under his right arm running from their front

porch toward the silver Honda. The black male was wearing a black “do-rag” on his head. After

the black male got in the Honda, Jeremy’s mother hit the car but the driver was able to get the car

in reverse and leave. His mother could not follow them because the wheel had fallen off the car.

The silver Honda also had a flat tire. Jeremy called 911from a neighbor’s house and the police

arrived in a few minutes. Within five or ten minutes, the police took Jeremy and his mother to an

apartment complex to view some suspects. Nobody suggested to Jeremy or his mother that these

were the same men who had burglarized his house. Jeremy viewed three suspects one-by-one and

identified them as the same three men he had seen just minutes earlier at his home. Jeremy also

made an in-court identification of Appellant as the driver of the silver Honda. When challenged

about his identification, Jeremy said he was sure that Appellant was the driver.

Joseph Stewart testified on Appellant’s behalf at trial. He admitted committing the burglary

of the Herreras’ home on November 7, 2005. At the time, Stewart was living in Floresville but he
also lived in an empty apartment at the complex where they were arrested. Stewart owned the gray

Honda used during the commission of the burglary. Stewart knew Appellant through Jacob Lao but

he considered Appellant as only an acquaintance. Stewart did not have any money so he decided to

commit a burglary. Lao drove Stewart’s car while Stewart sat in the front passenger seat. Stewart

picked the Herreras’ house at random. Lao dropped Stewart off at the house and he burglarized it

while Lao drove the car back to the apartment complex and waited for him. Stewart returned to the

apartment complex and Lao picked him up so they could return to the house. At the house, a car

driven by a woman rammed them but they were able to back up and get away even though the Honda

had a flat tire. They went to the opposite side of the apartment complex where Appellant lived

because they knew they could not be seen from the house Stewart had just burglarized. Stewart

wanted to fix the tire as fast as he could and leave the area because he knew the police would be

looking for him. Stewart was too nervous to change the tire so Lao asked Appellant to help him

while Stewart went to the apartment. The police came for Stewart and took him to an area in the

complex to be identified. Stewart told the police that only one other person was involved in the

burglary with him and he gave a written statement indicating that Appellant did not participate in

the burglary. On his judicial confession made when he entered his guilty plea, Stewart crossed out

the sentence in which he admitted acting in concert and as a party with Lao and Appellant. During

cross-examination, the prosecutor established that as part of his guilty plea, Stewart had stipulated

that the police reports were correct. Those reports indicated that Appellant had committed the

burglary with Stewart and Lao. Stewart was unaware that Lao had accepted responsibility for his

part in the burglary and had implicated Appellant in the commission of the burglary.

Veronica Rodriguez, Appellant’s former girlfriend, testified that Appellant spent the night

with her on November 7, 2005. Rodriguez lived with Eloise Andrade at the apartment complex.
Andrade’s boyfriend, Junior, was also at the apartment. Appellant took Andrade’s children to school

the next morning and then returned to the apartment at around 7:45 or 8 a.m. At first, Veronica said

that Andrade’s mother arrived to give Andrade a ride to work and mentioned that the police were

at the apartment complex. Then stating that she was confused, Veronica corrected her testimony to

say that sometime after 8 a.m., Jacob Lao knocked on the door and asked to use the phone because

he needed help changing a flat tire. Veronica noticed that Lao was frantic and she told Appellant

to help him. After a little while, Andrade’s boyfriend, Junior, left to throw out the trash and saw that

the police were arresting Appellant, Lao, and Stewart. Veronica tried to tell the police that Appellant

had been with her that morning, but they would not listen to her and told her to leave or they would

arrest her. Veronica testified on Appellant’s behalf because he had always been there for her. After

Appellant’s arrest, Veronica did not make any effort to tell anyone that Appellant had been with her

that morning because she got back together with her boyfriend and had a baby. A court-appointed

investigator “tracked [her] down” and she gave a written statement on August 1, 2006. 

The court’s charge included an instruction on the law of parties and the application paragraph

asked the jury to determine whether Appellant was guilty of burglary of a habitation as either the

primary actor or as a party. The jury rejected Appellant’s alibi defense and found him guilty of

burglary of a habitation. The trial court assessed Appellant’s punishment at a fine of $1,500 and

imprisonment for six years but suspended the sentence and placed Appellant on community

supervision for six years. The Texas Supreme Court transferred the appeal to this court by order

entered on April 2, 2007.

JURISDICTIONAL CHALLENGE

In his first four issues, Appellant challenges the jurisdiction of this court over his appeal. He

first argues that Section 73.001 of the Government Code is unconstitutional and violative of the
Equal Protection Clause because it does not give proper effect to Texas voters who elect the justices

of the intermediate appellate courts. Second, he contends we do not have jurisdiction of this appeal

because the Supreme Court’s transfer order is unconstitutional due to a conflict between the Texas

Constitution and Chapter 73 of the Government Code. Third, Appellant claims jurisdiction is absent

because the transfer order violates the equal protection and due course of law provisions of the Texas

Constitution. Finally, Appellant maintains that the transfer order is unconstitutional because it is a

void exercise of legislative authority over the judiciary in violation of the Separation of Powers

provision found in Article 2, Section 1 of the Texas Constitution. He asks us to transfer the case

back to the Fourth Court of Appeals.

To preserve a complaint for appellate review, a party must raise the issue by a timely and

specific objection or motion. SeeTEX.R.APP.P. 33.1(a). Even constitutional errors may be waived

by failure to object. Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000); Broxton v. State,

909 S.W.2d 912, 918 (Tex.Crim.App. 1995). Generally a party on appeal is seeking to raise a

complaint about some ruling of the trial court. In this case, however, Appellant is complaining about

an action of the Texas Supreme Court after he filed his notice of appeal to the Fourth Court of

Appeals. The issues we must decide are whether Appellant is obligated to preserve his complaints

about the transfer order and the constitutionality of Section 73.001, as applied to him, and if so, how

does he preserve the error?

The Supreme Court transferred several appeals, including the instant appeal, to this court

pursuant to Section 73.001 of the Texas Government Code. That section provides:

The supreme court may order cases transferred from one court of appeals to another

at any time that, in the opinion of the supreme court, there is good cause for the

transfer.

TEX.GOV’T CODE ANN. § 73.001 (Vernon 2005). Although the authority granted to the Supreme
Article V, Section 6 of the Texas Constitution provides: 

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Sec. 6. (a) The state shall be divided into courts of appeals districts, with each district having a Chief

Justice, two or more other Justices, and such other officials as may be provided by law. The Justices

shall have the qualifications prescribed for Justices of the Supreme Court. The Court of Appeals may

sit in sections as authorized by law. The concurrence of a majority of the judges sitting in a section is

necessary to decide a case. Said Court of Appeals shall have appellate jurisdiction co-extensive with

the limits of their respective districts, which shall extend to all cases of which the District Courts or

County Courts have original or appellate jurisdiction, under such restrictions and regulations as may

be prescribed by law. Provided, that the decision of said courts shall be conclusive on all questions

of fact brought before them on appeal or error. Said courts shall have such other jurisdiction, original

and appellate, as may be prescribed by law.

TEX.CONST. art. V, §6.

Court by Section 73.001 is typically exercised to equalize the dockets of the intermediate appellate

courts, the statute does not limit the Supreme Court’s authority to that purpose. Miles v. Ford Motor

Company, 914 S.W.2d 135, 137 (Tex. 1995).

Appellant states his issues in terms of a challenge to our jurisdiction. Generally, a party is

not required to preserve a challenge to the court of appeals’ jurisdiction which is defined by the

Texas Constitution and by statute. See TEX.CONST. art. V, § 1 (courts in which judicial power is

vested), TEX.CONST. art. V, § 6 (courts of appeals); TEX.GOV’T CODE ANN. § 21.001 (Vernon 1

2004)(inherent power and duty of courts), TEX.GOV’T CODE ANN. § 22.220 (civil jurisdiction),

TEX.GOV’T CODE ANN. § 22.201 (Vernon Supp. 2008)(courts of appeals districts), TEX.GOV’T CODE

ANN. § 22.221 (writ power), TEX.GOV’T CODE ANN.§§ 73.001-73.002 (transfer of courts of appeals’

cases); TEX.CODE CRIM.PROC.ANN. art. 4.01 (Vernon 2005)(providing that courts of appeals have

jurisdiction in criminal actions); TEX.CODE CRIM.PROC.ANN. art. 4.03 (providing that “[t]he Courts

of Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts

in all criminal cases except those in which the death penalty has been assessed.”). Section 73.002

specifically provides:

(a) The court of appeals to which a case is transferred has jurisdiction of the case

without regard to the district in which the case originally was tried and to which it is
returnable on appeal.

Even if Section 73.001 is unconstitutional as applied to Appellant, we would not be divested of

jurisdiction. Accordingly, we conclude that Appellant is not excused from preserving the

constitutional arguments he raises with respect to the transfer order.

The Texas Supreme Court has established that the proper procedure for obtaining a transfer

is by motion:

The party requesting a transfer should file a copy of the motion to transfer in each of

the two courts of appeals, asking that, when the motion is forwarded to the Supreme

Court, each court of appeals advise the Supreme Court in writing whether it has any

objection to the proposed transfer. Any briefs in favor of the proposed transfer

should also be filed in each court of appeals and forwarded with the transfer motion.

We will then have the motion, the briefs, and the comments of the two courts of

appeals in determining whether to grant the motion to transfer.

Miles, 914 S.W.2d at 137 n.2.

Citing Miles, the State maintains that Appellant has not followed the proper procedure for

seeking transfer of his case back to the Fourth Court of Appeals. In his reply brief, Appellant

responds that he should not have to “acquiesce” to the authority of the Supreme Court in order to

have his “criminal law matter” transferred back to the Fourth Court of Appeals. But he fails to

recognize that if he had followed the established procedure and the Supreme Court had granted his

motion and transferred the appeal back to the Fourth Court of Appeals, his complaints about the

constitutionality of Section 73.001 would be completely remedied. That is the very purpose of

requiring a timely and specific objection. If, on the other hand, the Supreme Court denied his

motion, then we would be in a position to address the constitutional issues he raises. Because

Appellant has refused to avail himself of an established procedure which potentially could remedy

the alleged constitutional violations, we conclude that he has failed to preserve his complaints about

the transfer of his appeal. Having said that, we pause to note that we share some of Appellant’s
 Effective September 1, 2008, Rule 41.3 was added to the Texas Rules of Appellate Procedure:

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41.3. Precedent in Transferred Cases.

In cases transferred by the Supreme Court from one court of appeals to another, the court of appeals

to which the case is transferred must decide the case in accordance with the precedent of the transferor

court under principles of stare decisis if the transferee court’s decision otherwise would have been

inconsistent with the precedent of the transferor court. The court’s opinion may state whether the

outcome would have been different had the transferee court not been required to decide the case in

accordance with the transferor court’s precedent.

The Comment to the 2008 change provides:

Subdivision 41.3 is added to require, in appellate cases transferred by the Supreme Court under

Section 73.001 of the Government Code for docket equalization or other purposes, that the transferee

court must generally resolve any conflict between the precedent of the transferor court and the

precedent of the transferee court--or that of any other intermediate appellate court the transferee court

otherwise would have followed--by following the precedent of the transferor court, unless it appears

that the transferor court itself would not be bound by that precedent. The rule requires the transferee

court to “stand in the shoes” of the transferor court so that an appellate transfer will not produce a

different outcome, based on application of substantive law, than would have resulted had the case not

been transferred. The transferee court is not expected to follow the transferor court’s local rules or

otherwise supplant its own local procedures with those of the transferor court.

concerns about the docket equalization process. To some extent, recent rule amendments have

improved the situation. And we applaud both defense counsel and the State for their excellent 2

briefing and arguments on these issues. But because the issues are not ripe for our review, we must

overrule Issues One through Four.

FACTUAL SUFFICIENCY OF THE EVIDENCE

In Issue Five, Appellant challenges the factual sufficiency of the evidence supporting his

conviction of burglary. More specifically, he argues the evidence is factually insufficient to prove

his identification because the identification procedure was unduly suggestive and rendered the incourt identification by Herrera and Jeremy untrustworthy.

Standard of Review

A factual sufficiency review begins with the presumption that the evidence supporting the

conviction is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). In
reviewing factual sufficiency of the evidence to support a conviction, we are to view all the evidence

in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000);

Clewis, 922 S.W.2d at 129. In reviewing legal and factual sufficiency challenges, we consider all

of the evidence, whether admissible or inadmissible. Powell v. State, 194 S.W.3d 503, 507

(Tex.Crim.App. 2006); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). We

determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt.

Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). The fact finder is the exclusive judge

of the witnesses’ credibility and the weight to be given their testimony. Swearingen v. State, 101

S.W.3d 89, 97 (Tex.Crim.App. 2003). Further, the reviewing court must give due deference to the

fact finder’s determinations. Johnson, 23 S.W.3d at 10-12. The judgment should not be set aside

unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust

or the verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d

at 411.

Identification

To prove burglary of a habitation, the State must prove beyond a reasonable doubt that the

defendant entered a habitation without the owner’s consent and with the intent to commit a felony,

theft, or assault. TEX.PENAL CODE ANN. § 30.02(a)(1)(Vernon 2003). The State must prove beyond

a reasonable doubt that the defendant is the person who committed the charged offense. Johnson

v. State, 673 S.W.2d 190, 196 (Tex.Crim.App. 1984). The indictment alleged that Appellant

intentionally and knowingly entered a habitation without Audrie Herrera’s consent and with the

intent to commit theft. An individual can be charged as a party to an offense and can be held

criminally responsible for the conduct of another when that individual acts in concert with another

person in committing an offense. TEX.PENAL CODE ANN. §§7.01-7.02 (Vernon 2003).
Circumstantial evidence alone may be used to prove that a person is a party to an offense. Beardsley

v. State, 738 S.W.2d 681, 684 (Tex.Crim.App. 1987). Furthermore, a person can be convicted as

a party even if the indictment does not explicitly charge him as a party. Marable v. State, 85 S.W.3d

287, 288 (Tex.Crim.App. 2002). An individual can be guilty of burglary of a habitation even though

he does not personally enter the burglarized premises if he is acting together with another in the

commission of the offense. Powell v. State, 194 S.W.3d 503, 507 (Tex.Crim.App. 2006). The

court’s charge included an instruction on the law of parties and the application paragraph applied the

law of parties to the facts of this case.

Review of the Evidence

Appellant did not file a motion to suppress the in-court identification or object to his in-court

identification by either Herrera or Jeremy. Therefore, the in-court identification by these witnesses

is not subject to suppression in the context of this factual sufficiency challenge and we will not

review the admissibility of the in-court identification. Stated differently, a determination that the

witnesses’ identifications were based on an impermissibly suggestive pretrial procedure would not

render the evidence insufficient.

Herrera and her son Jeremy both had an opportunity to view Appellant immediately after

Herrera crashed her car into the gray Honda Civic. Herrera and Jeremy provided a description of the

suspects and their car to the police. Within minutes, the police found a car and three suspects which

matched the descriptions provided by Herrera and Jeremy. A police officer took Herrera and Jeremy

to the apartment complex and Herrera identified the gray Honda as the same car she had hit. Both

Herrera and Jeremy had an opportunity to view Appellant at the apartment complex and both

identified him as the driver of the car. At trial, each of these witnesses made an in-court

identification of Appellant as the driver of the gray Honda and they remained firm in their
identification even in the face of cross-examination. Appellant presented two witnesses at trial, his

co-defendant Stewart and hisformer girlfriend Veronica Rodriguez, who testified that Appellant did

not participate in the burglary. It was the jury’s task to weigh the credibility of all the witnesses and

to resolve this conflict in the evidence. The jury resolved these issues against Appellant and rejected

his alibi defense. We conclude that the evidence is factually sufficient to prove that Appellant is the

person who committed the charged offense. Issue Five is overruled.

COMMENT BY TRIAL COURT

In his final issue, Appellant complains that the trial court erred in commenting during defense

counsel’s opening statement. The State responds that any error is waived because Appellant failed

to object. 

Counsel argued that the identification of Appellant was based solely on the testimony of

Herrera and Jeremy and that they were mistaken. The State objected that this amounted to argument

rather than a summation of the evidence they intended to present. The trial court did not rule on the

objection and instructed defense counsel to proceed. The following then occurred:

[Defense counsel]: So, hopefully, our witnesses will be able to clarify a lot of that

information. Now, ladies and gentlemen, you need to remember what the burden of

proof is here. The burden of proof is how much the district attorney’s office has to

prove to you-all or conviction you all of the truthfulness of what happened on this

particular day.

[The prosecutor]: That’s an incorrect statement, as well. Our burden is beyond a

reasonable doubt. It’s up to them to make that determination.

[Defense counsel]: I’m sorry, Kathy. I was getting there. Their particular burden in

this type of case is beyond a reasonable doubt. Now, beyond a reasonable doubt can

mean a lot of things to every person. I mean, every person has a different opinion.

You know, if I ask what the color of my shirt was? Everybody would probably say

something different. There’s a name for everything. There’s mauve, purple, dark

blue, whatever. Everyone has a different opinion, except in this particular instance,

beyond a reasonable doubt has to be something extremely convincing to yourself. 
[The prosecutor]: Again, I’m going to object to this. There’s no definition. She’s

interjecting a definition. I apologize for the discrepancy. There’s a proper instruction

to the jury. The jury is given a chance at the end, and there’s not a definition, and

I’m objecting to any suggestion of what the definition is; there is none.

[Defense counsel]: Your Honor, that’s what I’m saying, that every individual has a

different opinion.

[The Court]: Ladies and gentlemen of the jury --

[The prosecutor]: And it’s argumentative.

[The Court]: -- a reasonable doubt is a doubt based on reason, and we have to rely

on your individual sense of reason, sense of reason that each of you possess. Each

of you must decide for yourselves whether there is a reasonable doubt or whether

there is not. Go ahead, please. 

Defense counsel did not object to the trial court’s statement but instead proceeded with the opening

statement.

A party must bring an error to the trial court’s attention by a timely and specific motion or

objection. TEX.R.APP.P. 33.1. The contemporaneous objection rule applies to allegedly improper

comments by the trial judge. See Fuentes v. State, 991 S.W.2d 267, 276 (Tex.Crim.App. 1999)

(failure to object to trial court’s comments constituted waived); Beltran v. State, 99 S.W.3d 807, 811

(Tex.App.--Houston [14th Dist.] 2003, pet. ref’d)(holding defendant failed to preserve error with

respect to trial court’s comments because defendant failed to object). Appellant argues, however,

that the trial court’s comment was so egregious that an instruction would not have cured the error,

and therefore, he was excused from objecting. Appellant cites no authority in support of his

contention that he is excused from preserving error. Further, he does not argue that the trial court’s

comments rise to the level of fundamental error, taint the presumption of innocence, or vitiate the

jury’s impartiality. See Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001). Because

Appellant failed to object to the trial court’s comments, we find that he waived error. Issue Six is
overruled. Having overruled each issue presented for review, we affirm the judgment of the trial

court.

June 30, 2009 

ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.

Carr, J., not participating

(Do Not Publish)