AFFIRMED and Opinion Filed June 7, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-23-00834-CR 

STARSKY HOLMES, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 422nd Judicial District Court 

Kaufman County, Texas 

Trial Court Cause No. 22-50175-422F 

MEMORANDUM OPINION 

Before Justices Smith, Miskel, and Breedlove 

Opinion by Justice Breedlove 

Appellant Starsky Holmes was convicted of aggravated assault with a deadly 

weapon after a jury trial and sentenced to 42 years in prison. In three issues, appellant 

asserts that the trial court erred by: (1) commenting on appellant’s status as a repeat 

offender; (2) permitting the State to inform the venire panel about the punishment 

range for repeat offenders; and (3) submitting an incorrect and incomplete jury 

instruction on parole law. We affirm the trial court’s judgment. 
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BACKGROUND1

Ethan Womble openly flirted with Keroneshia Jackson in front of the father 

of her children at a party where both were intoxicated. Appellant, a family friend of 

Jackson’s, arrived at the party, and the father of Jackson’s children confronted 

Jackson about Womble’s flirting. At some point, the men at the party gathered 

outside while the women stayed inside. Later, Jackson heard a commotion and went 

outside. Jackson saw that the men were in a group with Womble on the side. Jackson 

heard from the others that Womble had been making racist comments, and the group 

scattered. Jackson went back inside for a while, before returning outdoors. When she 

stepped out her front door, Jackson saw appellant run up and hit Womble with a gun. 

When appellant struck Womble with the gun, it went off. Womble fell to the ground, 

and Jackson believed he had been shot and was dead because of how he fell. 

Jackson’s brother took Womble to the hospital where he was treated for a fractured 

jaw. 

Appellant was indicted for aggravated assault with a deadly weapon and pled 

not guilty. He was tried before a jury, which found appellant guilty, and sentenced 

to 42 years in prison. This appeal followed. 

1

 The facts of the case are known to the parties—therefore, we include only those facts necessary for 

context. See TEX. R. APP. P. 47.1. 
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DISCUSSION

Issue 1: Trial Court Comments During Voir Dire 

We first address appellant’s assertion that the trial court erred by commenting 

on appellant’s status as a repeat offender. During voir dire, the State informed the 

panel that appellant was charged with aggravated assault with a deadly weapon. The 

State explained that the charge was a second-degree felony punishable between two 

years and twenty years in prison, and that this charge coupled with a prior felony 

proven by the State increases the punishment range. Defense counsel requested to 

approach the bench and a discussion took place off the record. Following the bench 

conference, the trial court provided clarification to the jury regarding why the State 

was addressing punishment ranges during voir dire. Appellant argues that during the 

judge’s comments, the trial judge implied that appellant was a repeat offender by 

instructing the jury that “the range of punishment in this case is anywhere from two 

years as the minimum all the way up to 99 years or life” (emphasis added). 

When prior convictions are alleged for purposes of enhancement, the 

enhancement paragraphs may not be read to the jury until the punishment phase of 

the trial. TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(1). Both the State and the 

defendant may qualify the jury panel on the punishment range applicable to an 

offense which contains enhancement paragraphs. Bevill v. State, 573 S.W.2d 781, 

783 (Tex. Crim. App. 1978) (en banc). In so qualifying a jury panel, neither party 

may mention the specific allegations contained in the enhancement paragraphs but 
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must use only hypothetical terms. See Frausto v. State, 642 S.W.2d 506, 509 (Tex. 

Crim. App. [Panel. Op.] 1982). 

Appellant never asked the trial court to clarify its statements to the jury or 

objected to the court’s statements. See TEX. R. APP. P. 33.1(a) (requiring a timely 

request, objection, or motion to preserve a complaint for appellate review). 

Appellant does not address whether this type of error can be raised for the first time 

on appeal; he only argues that this issue is a “constitutional error,” and that, as such, 

it is automatically subject to a harmless error review. The Texas Court of Criminal 

Appeals has rejected any common law “fundamental error” exception to the rules of 

error preservation based upon harm. See Proenza v. State, 541 S.W.3d 786, 796 

(Tex. Crim. App. 2017) (citing Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. 

App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. 

Crim. App. 1997)). Instead, the question of error preservation turns upon the 

“nature” of the right allegedly infringed. Id.

Under Marin, there are three categories of rights: (1) absolute systemic 

requirements; (2) rights of litigants which must be implemented unless expressly 

waived; and (3) rights of litigants which are to be implemented upon request. Id. at 

279; see also Jacobs v. State, No. 05-22-00248-CR, 2023 WL 5621672, at *2–3 

(Tex. App.—Dallas Aug. 31, 2023, no pet. h.) (mem. op., not designated for 

publication) (detailing Marin’s categories and preservation requirements). Only the 

first two categories of errors may be raised for the first time on appeal. See Proenza 
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v. State, 541 S.W.3d 786, 798 (Tex. Crim. App. 2017) (citing Marin, 851 S.W.2d at 

280). In Proenza, the court of criminal appeals concluded that a complaint a trial 

judge’s comments to a witness violated Code of Criminal Procedure article 38.05 

was “at least” a waivable-only right under Marin and, therefore, may be raised for 

the first time on appeal. 541 S.W.3d at 801. We conclude that, because the record 

does not reflect that appellant plainly, freely, and intelligently waived his right to the 

trial judge’s compliance with article 38.05, his claim has not been forfeited and may 

be raised for the first time on appeal. See id.; see also Skinner v. State, No. 05-17-

00153-CR, 2018 WL 3545023, at *3 (Tex. App.—Dallas July 24, 2018, pet. ref’d). 

A trial judge must not comment on the evidence in a manner that conveys his 

opinion of the case to the jury as “[j]urors are prone to seize with alacrity upon any 

conduct or language of the trial judge which they may interpret as shedding light 

upon his view of the weight of the evidence, or the merits of the issues involved.” 

Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003) (quoting Lagrone v. 

State, 209 S.W. 411, 415 (Tex. Crim. App. 1919)). A trial judge improperly 

comments on the weight of the evidence if he makes a statement that implies 

approval of the State’s argument, indicates disbelief in the defense’s position, or 

diminishes the credibility of the defense’s approach to the case. Clark v. State, 878 

S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.); Nguyen v. State, 506 S.W.3d 

69, 83 (Tex. App.—Texarkana 2016, pet. ref’d). To constitute reversible error in 

violation of article 38.05, the comment in question must be such that it is reasonably 
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calculated to benefit the State or prejudice the defendant’s rights. Marks v. State, 

617 S.W.2d 250, 252 (Tex. Crim. App. [Panel Op.] 1981); see also Clark, 878 

S.W.2d at 226. 

Appellant relies on Clark v. State to support his contention that the trial court’s 

comments were reversible error. Appellant contends the trial court went beyond the 

permissible boundary of hypothetically informing the jury on the range of 

punishment. We disagree. In Clark, the trial court stated that the allegations in the 

enhancement paragraphs meant that the defendant had been previously convicted of 

two felony offenses. Clark, 878 S.W.2d at 225. The trial court’s statements were an 

improper comment on the evidence’s weight and violated article 38.05 of the code 

of criminal procedure. Id. at 226. 

The trial court told the jury that “the minimum range of punishment in this 

case is anywhere from two years as the minimum all the way up to 99 years or life.” 

Taken alone, we agree with appellant that this statement likely extended beyond the 

permissible boundary of hypothetically informing the jury on the range of 

punishment. However, the context in which this statement was made alleviates the 

concerns expressed in Clark: the trial court prefaced its remarks by saying that 

“generally we just give the ranges of punishment,” and that “there have been no facts 

alleged related to this defendant.” See Frausto, 642 S.W.2d at 509. The trial court 

never stated that appellant had been convicted of the offenses alleged in the 

enhancement paragraphs. The trial court could qualify the jury panel on the 
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punishment range applicable to an offense that is enhanced by previous convictions. 

See Bevill, 573 S.W.2d at 783. Because the trial court phrased its comments 

hypothetically, we conclude the trial court did not err. We overrule appellant’s first 

issue. 

Issue 2: State’s Comments During Voir Dire 

Having concluded that the trial court did not err in commenting on the range 

of possible punishments in appellant’s case, we turn to appellant’s second issue. In 

this issue, appellant argues that the trial court erred when it permitted the State to 

inform the venire panel about the punishment range for repeat offenders, denying 

appellant of an impartial jury. See Frausto, 642 S.W.2d at 509. As with issue one, 

appellant did not preserve this issue by timely motion or objection.2

 Therefore, the 

first question we must answer is whether by failing to properly preserve this issue, 

appellant has waived it. 

As discussed in more depth above, under Marin, there are three categories of 

rights: (1) absolute systemic requirements; (2) rights of litigants which must be 

implemented unless expressly waived; and (3) rights of litigants which are to be 

implemented upon request. Marin, 851 S.W.2d at 279; see also Jacobs, 2023 WL 

2

 Appellant’s brief notes that immediately after the allegedly improper comments from the State, 

defendant’s counsel requested a bench conference at which, presumably, defendant objected to the State’s 

comments. However, the contents of the bench conference are not included in the record, nor was any 

objection re-urged once counsel went back on the record. Therefore, we cannot speculate as to the contents 

of defense counsel’s objection, if any, and must treat the issue as if it had not been preserved. See TEX. R.

APP. P. 33.1(a). 
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5621672, at *2–3. Only the first two categories of errors, may be raised for the first 

time on appeal. See Proenza, 541 S.W.3d at 798 (citing Marin, 851 S.W.2d at 280). 

Therefore, appellant’s second issue must implicate a “systemic” right or a 

“waivable-only” right in order to be raised for the first time on appeal. 

Appellant does not cite any cases in which similar voir dire statements were 

held to rise to the level of structural or fundamental error. To the contrary, a 

defendant’s failure to object to improper voir dire statements has been held to waive 

the complaint on appeal. See Beltran v. State, 99 S.W.3d 807, 812 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d); Dowdy v. State, No. 03-01-00571-CR, 2002 

WL 1987642, at *2 (Tex. App.—Austin Aug. 30, 2002, no pet.); Campos v. State, 

946 S.W.2d 414, 416–18 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (holding 

failure to object to improper prosecutorial statement waives error); Jenkins v. State, 

870 S.W.2d 626, 629 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d); Draughon 

v. State, 831 S.W.2d 331, 336–37 (Tex. Crim. App. 1992); Boyd v. State, 811 S.W.2d 

105, 113 (Tex. Crim. App. 1991). Having reviewed the record in its entirety, we do 

not believe that the prosecutor’s statement rose to the level of structural or 

fundamental error. See Dowdy, 2002 WL 1987642, at *2; Draughon, 831 S.W.2d at 

336–37; Boyd, 811 S.W.2d at 113; Jenkins, 870 S.W.2d at 629. Thus, an objection 

was necessary to preserve appellant’s complaint on appeal. No such objection having 

been raised, appellant has waived his complaint on appeal. TEX. R. APP. P. 33.1(a). 

We overrule appellant’s second issue. 
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Issue 3: Jury Instruction on Parole Law 

We turn to appellant’s final issue. In this issue, appellant argues that the trial 

court erred in submitting an incorrect and incomplete jury instruction on parole law. 

In reviewing jury-charge error, we first determine whether error exists. Price v. 

State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) (citing Almanza v. State, 686 

S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)); Ngo v. State, 175 S.W.3d 

738, 743 (Tex. Crim. App. 2005) (internal citations omitted). If we find error, we 

must then determine whether the error caused sufficient harm to require reversal. 

Ngo, 175 S.W.3d at 743. The standard of review differs depending on whether the 

defendant made a timely objection at trial. Jordan v. State, 593 S.W.3d 340, 346 

(Tex. Crim. App. 2020) (citing Almanza, 686 S.W.2d at 171). If the error was the 

subject of a timely objection, reversal is required if there is some harm to the 

defendant as a result of the error. Id. (citing Almanza, 686 S.W.2d at 171); TEX.

CODE CRIM. PROC. ANN. art. 36.19. If no proper objection was made at trial, reversal 

is required only if the error is so egregious that the defendant was denied a fair and 

impartial trial. Id. It is undisputed that appellant did not make a proper objection in 

this case. 

The trial court’s charge on punishment states: 

Under the law applicable to this case, the defendant, if sentenced to a 

term of imprisonment, may earn time off the period of incarceration 

imposed through the award of good conduct time. Prison authorities 

may award good conduct time to a prisoner who exhibits good 

behavior, diligence in carrying out prison work assignments, and 
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attempts at rehabilitation. If a prisoner engages in misconduct, prison 

authorities may also take away all or part of any good conduct time 

earned by the prisoner. 

It is also possible that the length of time for which the defendant 

will be imprisoned might be reduced by the award of parole. 

(emphasis added.). The code of criminal procedure provides: 

The length of time for which a defendant is imprisoned may be reduced 

by the award of parole. 

Under the law applicable in this case, the defendant, if sentenced to a 

term of imprisonment, may earn early parole eligibility through the 

award of good conduct time. Prison authorities may award good 

conduct time to a prisoner who exhibits good behavior, diligence in 

carrying out prison work assignments, and attempts at rehabilitation. If 

a prisoner engages in misconduct, prison authorities may also take away 

all or part of any good conduct time earned by the prisoner. 

... 

It cannot accurately be predicted how the parole law and good 

conduct time might be applied to this defendant if sentenced to a 

term of imprisonment, because the application of these laws will 

depend on decisions made by prison and parole authorities. 

TEX. CODE CRIM. PROC. ANN. art. 37.07 (emphasis added). 

Appellant asserts the charge error had the potential of influencing the jury to 

assess a greater sentence, requiring reversal. We disagree. 

At punishment, the State admitted a penitentiary packet from the Texas 

Department of Criminal Justice that contained judgments from appellant’s prior 

convictions for aggravated assault with a deadly weapon, unlawful possession of a 

firearm by a felon, and evading arrest and detention with a vehicle. The State’s 

fingerprint expert testified that the fingerprints and personal information for each 
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prior conviction matched those of appellants. The State also put Womble on the 

stand who testified to the pain and fear he experienced during the altercation as well 

as while watching the recording of the incident for the first time. He also testified to 

the long-term recovery process, medical procedures, and the long-term impact of his 

injuries on his body, mental health, and personal life. The State presented no other 

evidence at punishment, but the defense called appellant’s mother to testify. She 

testified about their relationship, appellant’s relationship with his adult son, and 

appellant’s mental health issues. 

The punishment range for the offense, as enhanced, was twenty-five to ninetynine years. After considering the evidence, the jury assessed punishment of fortytwo years’ confinement, on the lower end of the punishment range. 

Upon reviewing the entire record and considering the relevant factors, we 

conclude nothing in the record shows the jury charge error affected the very basis of 

the case, deprived appellant of a valuable right, or vitally affected a defensive theory. 

The record does not show the charge error caused egregious harm; any purported 

harm is only theoretical. We overrule appellant’s third issue. 

 
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CONCLUSION

We affirm the trial court’s judgment. 

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

230834F.U05 

 

/Maricela Breedlove/

MARICELA BREEDLOVE 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

STARSKY HOLMES, Appellant 

No. 05-23-00834-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 422nd Judicial 

District Court, Kaufman County, 

Texas 

Trial Court Cause No. 22-50175-422-

F. 

Opinion delivered by Justice 

Breedlove. Justices Smith and Miskel 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered June 7, 2024