NO. 07-10-0139-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A JULY 30, 2012

__________________ ____________ JOSEPH MICHAEL ANDERSON, APPELLANT V. THE STATE OF TEXAS, APPELLEE

__________________ _______________ FROM THE 19 TH DISTRICT COURT OF McLENNAN COUNTY; NO. 2009-1366-C1; HONORABLE RA LPH T. STROTHER, JUDGE

__________________ _____________ Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION ON REMAND
The Court of Criminal Appeals vaca ted our earlier opinion in this case, Anderson v. State, 341 S.W.3d 585 (Tex.App.--Amarillo 2011) and remanded it for reconsideration in light of Fuller v. State, 363 S.W.3d 583 (Tex.Crim.App. 2012), wherein it concluded that questions regarding the diffe rences between the criminal and civil burdens of proof are relevant to understanding a venire member's potential bias or pr ejudice as to that2 area of the law and, consequently, the effectiv e exercise of a challenge for cause. Upon further analysis, we again affirm the judgment of t he trial court.

F ACTUAL AND P ROCEDURAL B ACKGROUND
During the early morning hours of F ebruary 11, 2009, Officer Michael Miller observed Appellant's vehicle exit a motel parking lot, cross into an oncoming lane, and roll through a stop sign. Officer Miller init iated the lights of his patrol car and pulled Appellant over for traffic violations. A fter approaching Appellant, Officer Miller noticed the smell of an alcoholic bev erage on Appellant's br eath. According to the officer, despite the cold weather, Appellant was no t wearing a shirt, had red, bloodshot eyes, and his speech was slurred. Appellant was a sked to exit his vehicle and instructed to perform three field sobriety tests. According to Officer Miller, Appellant was not able to perform any of the tests satisfactorily and wa s arrested. He was subsequently charged with felony driving while intoxicated, enhanced by two prior felony DWIs.

Prior to commencement of voir dire , the trial court announced: When you're voir diring the jury and we're talki ng about the standard of proof, proof beyond a reas onable doubt, I don't allow anybody to talk about clear and convincing evidence, preponderance of the evidence, and compare that to proof of beyond a reasonable doubt. I think that confuses the jury panel, I think it's misleading, so I don't want anybody saying that you've got to have this much -- a certain quantity of evidence to prove a civil case and a certain quantity of evidence to prove clear and convincing standard of proof and you've got to get to this level to prove a criminal case because that's confusing, and there's no definition of proof beyond a reasonable doubt, so I don't want anybody voir diring on that issue.
Defense counsel objected on t he grounds that he would be unable to intelligently use his challenges for cause and his representation during voir dire would be rendered3 ineffective. Although defense counsel was able to extensively question prospective jurors about the State's bur den of proof of beyond a reas onable doubt, his attempt to raise the issue again during voir dire was denied and his objection was overruled.
Following presentation of evidence, the jury convicted Appellant and assessed his sentence at confinement for a term of thirty years. This Court originally determined the trial court did not err by limiting voir dire to the burden of proof actually before the jury. Following Fuller, the Court of Criminal Appeals vacated our judgment and remanded the case to this Court for further analysis. Finding the trial court erred in sua sponte and preemptively forbidding defense couns el from comparing the two burdens of proof, we must now determine the effect of that error.

S TANDARD OF H ARM A NALYSIS
The denial of an appr opriate question during voir dire constitutes nonconstitutional error that is subject to a harm analysis. Fuller, 363 S.W.3d at 589; Rich v. State, 160 S.W.3d 575, 577 (Tex.C rim.App. 2005). The proper test for such error is that set out in Ru le 44.2(b) of the Texas Rules of Appe llate Procedure, and under that test a reviewing court should di sregard any "error, defect, irregularity, or variance that does not affect substantial right s" of the appellant. A substantial right is affected "when the error has a substantial and injurious effect or influence in determining the jury = s verdict." Id. at 577 (quoting Russell v. State , 155 S.W.3d 176, 179 (Tex.Crim.App. 2005)).
In determining whether error of this type affects the defendant's substantial rights an appellate court should use an appropriatel y tailored set of factors to determine4 whether the defendant's substantia l rights have been affected. See Sanchez v. State , 165 S.W.3d 707, 709 (Tex.Crim. App. 2005). In that regard, we must consider everything in the reco rd, including other voir dire questions, the character of the error and how it might be considered in connecti on with the appropriate application of the State's burden of proof, any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the State's theory of the case as well as any defensive theories, the jury instruct ions, closing arguments, and whether the two burdens of proof were otherwise emphasized or explained. Rich, 160 S.W.3d at 577-78. A NALYSIS V

OIR D IRE
Although the trial court refused to allow defense counsel to discuss with the venire members the differences between t he criminal burden of proof of beyond a reasonable doubt and the civil burdens of pr oof of clear and co nvincing evidence and preponderance of the evidence, the court plac ed no limitations on counsel's ability to explain the criminal burden of proof or determine whether individual venire members could follow their oath and render a verdict according to their own understanding of reasonable doubt. In fact, the trial court spec ifically advised defense counsel that he was permitted to question venire members concer ning their individual understanding of reasonable doubt. While counsel may have been restricted, he was not prohibited from making a thorough inquiry into each venire member's conc ept of beyond a reasonable doubt.5 In fact, during voir dire, the trial court extensively explained the concepts of presumption of innocence and the State's burden of provi ng the elements of the indictment to the satisfaction of the i ndividual jurors, beyond a reasonable doubt. During its instructions to the jury, prior to any questioning by either the prosecution or the defense, the court said, in part: "Not only do they [the pr osecution] have the burden of proof, they have to meet a certain standard of proof, and t hat standard for a criminal case is called proof beyond a reas onable doubt. It is the highest level - - standard in our system of law."
Likewise, during their respective ques tioning, both the pr osecution and the defense repeatedly touched upon the concepts of the Stat e's burden of proof and the requirement that their proof reach the leve l of beyond a reasonable doubt. Accordingly, although limited in methodology, Appellant was accorded the opportunity to elicit pertinent information from every prospective juror.

C HARACTER OF THE E RROR AND H OW I T A FFECTED A PPELLANT ' S R IGHT TO C HALLENGE A P ROSPECTIVE J UROR FOR C AUSE
While the error may have handicapped de fense counsel's ability to make a challenge for cause, it didn't prevent it. C ounsel was free to question individual venire members concerning their concept of re asonable doubt. Furthermore, he was not prevented from challenging venire members bas ed on their individual views concerning what constitutes reasonable doubt and he wa s even able to successfully challenge several venire members. Furthermore, he was not restricted in the exercise of Appellant's peremptory strikes. Becaus e Appellant was accorded the means of preventing a legally disqualifi ed or biased venire member fr om being seated on the jury,6 his right to, and the State's interest in, a fair and impartial jury was not thwarted. See Sanchez , 165 S.W.3d at 711.

C HARACTER OF THE E RROR AND H OW I T A FFECTED THE P ROPER A PPLICATION OF THE R EASONABLE D OUBT B URDEN OF P ROOF
Refusing to allow defense counsel to co mpare the criminal burden of proof to the civil burdens of proof in no way shifted t hat burden to the defense or otherwise lessened the State's obligation to pr ove its case beyond a reasonable doubt. As applied to the facts of this case, the trial court's error in no way affected the proper application of the reasonable doubt burden of proof.

N ATURE OF THE E VIDENCE S UPPORTING THE J URY ' S V ERDICT

Because no breath or blood test result s were obtained which would lead to a presumption of intoxication, the State's ca se relied upon the observations of the witnesses, the credibility of their testimony, and each juror's evaluation of the arresting officer's video. The evidence showed Appel lant was driving erratically, smelled of alcohol, had blood-shot, glassy eyes, admi tted to have been drinki ng (although claiming to have just recently awoken), and was having difficulty following directions. He also failed field sobriety tests, including the hor izontal gaze nystagmus test. Furthermore, although not a confession of guilt, Appellant does not challenge the legal sufficiency of the evidence establishing his guilt. See Motilla v. State , 78 S.W.3d 352, 356 (Tex.Crim.App. 2002) (recognizing that overw helming evidence can be a factor to be considered in conducting a Rule 44.2(b) harm analysis).7 J URY I NSTRUCTIONS AND C LOSING A RGUMENTS The Charge of the Court recites, in pertinent part: "In all criminal cases, the burden of proof is on the State. The defendant is presumed to be innocent of the charge. All persons are presumed to be innocent, and no pers on may be convicted of an offense unless each element of t he offense is proved beyond a reasonable doubt. The law does not require the defendant to prove his innocence or produce any evidence at all. Unless the juro rs are satisfied beyond a reasonable doubt of the defendant's guilt after carefu l and impartial consideration of all the evidence in the case, the presumpt ion of innocence alone is sufficient to acquit the defendant."
The State's closing arguments emphasized the evidence, cont ending its burden of proof had been met. Appe llant's closing arguments t ook the position that the evidence did not rise to the level of pr oof beyond a reasonable doubt. Neither side attempted to quantify the level of proof necessary to reach that threshold, nor did they compare it in any way to other burdens of proof.

C ONCLUSION
In summary, our review of the record shows that, although the trial court improperly limit ed Appellant's voir dire , the jury was repeatedly and clearly instructed that the State had the burden of proving Appellant's guilt beyond a reasonable doubt and there is no evidence that any member of the jury was unable or unwilling to follow those instructions. Appellant has not c hallenged the sufficiency of the evidence and that evidence supports the convicti on. The trial court's verbal instructions to the jury, its written instructions contained in the Charge of the Court , the State's arguments, and8 even Appellant's argum ents, all reinforced the fact t hat the State had the undeniable burden of proving Appellant's guilt beyond a reasonable doubt.
For the foregoing reasons, we hold the trial court's impr oper limiting of Appellant's voir dire regarding the differences between the criminal and civil burdens of proof did not, under the circumstances of th is case, have a substantial and injurious effect or influence on the jury = s verdict. Accordingly, we di sregard the error, overrule Appellant's sole issue, and affirm the judgment of t he trial court.

Patrick A. Pirtle Justice
Do not publish.