## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00072

- CR

JUSTIN CHARLES RICHARD , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 402nd District Court Wood County, Texas Trial Court No. 24,358

- 2020

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Burgess2 

### ME MORANDUM OPINION

A Wood County jury convicted Justin Charles Richard of possession of less than one gram of a controlled substance in penalty group 1, namely methamp heta m ine. Following a
bench trial on punishment, the trial court sentenced Richard to eighteen months’ confinement in state jail. Richard appeals, maintainin g that (1) the trial court abused its discretion during jury
selection when it denied Richard the opp o rtunity to question individual panel members and, instead, gave an instruction to the entire panel; (2) the trial court committed reversible error
when it allowed the mens rea of the offense to be charged in the disjunctive even though the
indictment alleg e d the conjunctive; and (3) the cumulative impact of erroneous instructions requires reversal. For the reasons below, we affirm the judgment of the trial court.
I. Discussion
A. Jury Selection
Richard maintains that the tri al court abused its di s creti o n when it did not allow him to question the jury members individually about their under standing of a defendant’s presumption
of innocence and, instead, issued an instruction to the jury

. We disagree.
It is well

- established th at the conduct of jury selec t ion rests largely within the sound
discretion of the trial court. Martinez v. State , 8 67 S.W.2d 30, 35 (Tex. Crim. App. 1993). We
review a trial court’s decision to limit jury selection under an abuse of discretion standard. Boyd
v. State , 811 S. W .2d 1 0 5, 115 (Tex. Crim. App. 1991). “ A trial court abuses its discretion when it prohibits a proper question about a proper area of inquiry. ” Sells v. State , 121 S.W.3d 748,
755

– 56 (Tex. Crim. App. 2003).3

During jury selection , Richard’s defense co u nsel a ddressed the panel on the meaning of
the presumption of innocence:

[COUNSEL]: Here’s an other one. As I read this right now, I presume that my client, the defendant, Justin Richard, is innocent. Is there anybody who is a 3 or lower on this qu e stion ?
PANEL MEMBER : Neutral means neutral, right? [COUNSEL]: Neutral is just neutral.
PANEL MEMBER : Say it again. [COUNSEL]: It says

- - as you read this question right now, you presume that my client, Justin Richard, is innocent. Anybody

- - any b ody neutral or disagree or strongly disagree on that? Okay. Number 3, wh y is that?
PANEL MEMBER : I don’t have all the information, so

- - [COUNSEL]: Okay. So you’re starting

- - you’re starting in the middle?
PANEL M EMBER : (Nods.) [COU N SEL]: Okay. So basically what I’m getting at there is that if we were to look at scales of justice, for example, they’re even. They’re not tipped in Mr. Richard’s favor as we sit here right now. All right. Who agrees

- - who agre es with what I just sa i d.
P ANEL MEMBER : That they’re not tipped; they’re even? [COUNSEL]: They’re even

- - PANEL MEMBER : I don’t know whether he is or isn’t. [ COUNSEL ] : Exactly. They’re no t

- - they’re not tipped in Mr. Richard’s favor.
PANE L MEMBER : Yes.
PANE L MEMB E R : Innocent until proven guilty.4 [COUNSEL]: Everybody here agr ees with me

- - everybody who agrees with me, keep your cards up.
PANEL MEMBER : Just to reiterate, you’re saying we’re neutral. [COUNSEL]: No. What I’m sa ying is if

- - if you’r e neut r al, if you don’t presume the scales are tipped in Justin Richard ’s favor

- - PANEL MEMBER : Okay. Just straight across? [COUNSEL]: Straight across, 50

- 50. Score is zero, zero, who agrees with that?
PANEL MEMBER : Yes. Thirty

- eight pa nel me m bers r aised their hands

. Several minutes later , Richard’s counsel
informed the court that he believed the jury panel w as confused by his question s regarding Richard’s presumption of innocence. 1 Specifically, counsel argued that the panel members

u nderst o od th e presumption of innocence to mean that the parties began in neutral positions. “There has to be a presumption, which is more than neutrality, that he’s an innocent man as we
si t here right now.” Counsel informed the trial cou rt that he would like t o que s tion each of the thirty

- eight individual panel members to determine whether they should be stricken for cause because they did not understand the law regarding the pre sumption of innocence. The court denied his request 2 and, i nstead, instruct ed the entir e jury panel as follows:

1 The t r i al court admonish ed counsel for referring directly to Richard’s presumption of innocence during jury selection , stating, “ [A]nd you’re really not supposed to couch it in terms of this defendant

. It’s supposed to b e, is a defendant.”

2 The court inf

o r m ed t he attorneys t hat , after it gave its instruction , either of them could approach the bench if they wanted to suggest additional language to incl ude in the instruction.5 Okay. Before the attorneys are going to exercise their peremptory strikes, I wanted to visit just briefly about something that might have be en a little confusi [ng]

. You probably all know t hat a person who is charged wit h a crim e is presumed innocent until proven guilty beyond a reasonable doubt. And there were some questions asked of you about, are you neutral, or strongly agree, disagree. But simply this. Is there anyone here that does not agree that a person ch arge d is pre s umed innocent until proven guilty by the State beyond a reasonable doubt of each element. Raise your hand if you don’t believe that. Okay. I take it by your silence that you all believe in that premise.
The co urt then asked both parties if t hey bel i eved the instruction was sufficient. The State answered that it did, but Richard’s counsel stated, “I believe the instruction was sufficient, but I
bel ieve that their answers still give me grounds for challenging th em for cause that they can’ t
fo l low the law.”
T o the extent Richard’s statement was an objection to the trial court giving the jury panel an instruction on the meaning of the pres umption of innocence instead of allowing him to individually question each of the thirty

- eight panel memb e rs, his objection was overruled.
R ichard maintains the court’s ruling was reversible error. We disagree. In support of his position that he should have been allowed to question each of the thirty

eight panel members indiv idually , Richard directs us to F uller v

. State , 363 S.W.3d 583 (Tex. Crim. App. 2012). In that case, Fuller was indicted for the offense of capital murder

. Id

. at 583.
The State d eclined to seek the death penalty , so there was no individual questioning of the panel
members

. Id

. Th e morning jury selection was to commence, and outside the presence of the6

panel, Fuller asked the court to allow him to ask the panel members “ whether they understood that the standard of proof beyond a reasonable doubt const ituted a level of confidence un d er the
l a w that was higher than both the preponderance of the evidence and the clear and convincing
evidence standards. ” Id

. The trial court refused the requ est , finding that Paulson v. State , 28 S.W.3d 570 (Tex. Crim. App . 2000), disallowed such an exa m ination d uring jury selection

. Fuller , 363 S.W.3d at 58 4

. On appeal, the appellate court affirmed the trial court , stating, In the instant case, appellant sought to explain the different burdens of proof and to elicit wh ether the jury understood th at p roof bey o nd a reasonable doubt is the highest burden. We conclude that such an explanation would not seek to elicit information from potential jurors, but onl y seek to explain the burden of proof. Only where there is a den ial of a specific question t hat seeks to discover a juror’s views on an issue applicable to the case is there an abuse of discretion. See Smith [ v. State , 703 S.W.2d 641] , . . . 643 [Tex. Crim. App. 1985)]. [ 3 ]
Id . at 58 4

– 8 5

. In his petition for dis cretionary review, Fuller argued t h at the cou rt of appeals had ignored contrary case law , and the Court of Criminal Appeals agreed

. Id

. at 585. In granting Fuller’s petition , the court h eld that the trial court abused its discretion in denying his request to
ask the jury panel about the d i fferences in burdens of proof . The court explained that it was appropriate for Fuller to discuss with the panel members the contrast among the various

stan dards of proof in the case, and Fuller clearly proffered a questi on that was at least relevant to,
i f not alto ge ther dispositive of, a legitimate defensive challenge for cause. Id

. at 589.

3 Fuller v. State , No. 05

- 09

- 01099

- CR, 2 011 WL 285849, at *6 (Tex. App.

— Dallas Ja n
. 31, 2011) ( mem. op. , not designated for publication) , rev ’ d by 363 S.W.3d 583

.7

As the c ourt noted in Fuller , the only circumstance in which a defendant has an absolute right to question each of the panel me mbers individually is when he has b e en charge d w ith capital murder and the State is seeking the death penalty. Id

. at 583 (citing T EX

. C ODE C RIM

. P ROC

. A NN . art. 35.17 )

. 4 That is not the case h ere. Richard was charged with a drug possession offense, an d the death penalty was not a pote n t ial sente nce in the event he was convicted. Accordingly, he did not have an absolute right to question each of the panel members on an
individual basis.
In a ddition, t here are several differences between this case and Fuller

. To begin with , Fuller ad d r e ssed the is sue of whether a particular question would be a proper inquiry during jury selection. In this case, there is nothing in the record to show that the trial court found , or even insinuated, that a question invo lving the meaning of the presumpti o n of i nnoc enc e was an improper inquiry. In fact , the trial court gave Richard’s counsel ample opportunity to ask the members of the jury panel what they believed the presumption of innocence meant. Counsel even question ed some of the panel members indiv i d u ally. Y et , it appears from the record that it
was counsel’s explanations and question s that caused the resulting confusion. Moreover, when the trial court asked counsel what question he would ask the thirty

- eight indi viduals if he w ere

4 Article 35.17(2) states, In a capital felony case in which the State seeks t he death penalty, the court shall propound to the entire panel o f prospect ive jurors questions conc erning th e pri nciples, as app licable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence , and opinion. Then, on demand o f the State or defendant, eithe r is entit led to exam ine each juror on voir dire individually an d apart from the entire panel, and may further question the juror on the principles propounded by the court. T EX

. C ODE C RIM

. P RO C

. A NN . art. 35.17(2).8

given the oppor t u n ity, c ou nse l’s proffered explanation was almost as conf ounding as was his original one

. 5 A trial court has a great amount of discretion over the process of selecting jurors. Allridge v. State , 762 S.W.2d 146, 167 (T ex. Crim. App. 1988 ). “[W]it h out s o m e so rt o f c ontrol by the trial judge on the voir dire examination, the voir dire examination might never end and trial might never start .” Faulder v. State , 745 S.W.2d 327, 334 (Tex. Crim. App. 1987). Here,
i nstead of giving counsel an inordinate amoun t of ti me to question thirty

- eight individuals a bout
their understanding of the presumption of innocence

— and possibly confus ing the jury panel

even further

— the trial court took a relatively brief amount of time to explain the correct meaning
of the t e rm. N o tably, R ich ard’s counsel agreed that the trial court’s instruction was sufficient.
T he trial court also informed both parties that they could proffer language to add to the
instruction , but neither party cho se to do s o. Further, the trial court a sked t he panel if anyone disagreed with its explanation , and no one on the panel said that they did ; nor did anyone ask the court additional questions

. Instead, the panel members indicated that they understood what the
presump tion of innocence meant . Acc o rding l y , any co nfu sion resulting from the earlier questioning was alleviated by the trial court’s instruction. Under this record , we cannot say t hat the trial court abused its discretion when it gave an instruction on the mea ning of the presumption of in n ocenc e instead of allowing Richard’s counsel to individually question thirty

eight panel members as to its meaning

. We overrule Richard’s first point of error.

5 Counsel stated, “What I would ask them is basica lly is that

- - basically the way I put it is the sca les, like I said, 50

- 50, is there anybody who doesn’t presume that they’re tipped right now in a defendant’s favor.”9

II. Jury Charge Error In his second point of error, Richard con tends that the trial court er r ed in s ubmittin g a portion of the jury charge in the disjunctive when it was alleged in the conjunctive in the
indictment. Specifically, Richard maintains that , because the indictment charged that he “intentionally and knowin gly” possessed methamphetamin e , the t rial cou rt erred in instructing the jury to find him guilty if it found that he “ intentionally or knowingly” possessed methamphetamine. (Em phas is added). We disagree. “[T]he jury is the exclusive judge of the facts, but is bound to receive the law f ro m the

cour t a nd be governed thereby

. ” T EX

. C ODE C RIM

. P ROC

. A NN . art. 36.13. “A trial court must submit a charge setting forth the ‘law applicable to the case.’” Lee v. State , 415 S.W.3d 915, 917 (Tex. App.

— Texarkana 2 013, p e t. ref’d) (quoting T EX

. C ODE C RIM

. P RO C

. A NN . art. 36.14). “The purpose of the jury charge . . . is to inform the jury of the applicable law and guide them in its application. ” Id

. (quoting Delgado v. St ate , 235 S.W.3d 244, 249 (Tex. Crim. App. 20 07)).

“ It is not the function of t h e charge mer ely to avoid misleading or confusing the jury: it is the function of the charge to lead and prevent confusion.” Id

.

“ We employ a two

- step process in our review of alleged jury charge error. ” Murrieta v.
S tate , 5 78 S.W.3d 552, 554 (Tex. App

. — Texarkan a 2 019, no pet.) (citing Abdnor v. State , 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). “ Initially, we determine whether error occurred and
then evaluate whether suffic ient harm resulted from the error to requir e reve r sal. ” 6 Id

. (quoting

6 “The l evel of harm necessary to require reversal due to jury charge error is dependent on whether the appellant properly obje cted to the e rror.” Murrieta , 578 S.W.3d at 555 (citing Abdnor , 871 S.W.2d at 732). If a defendant objects to the jury charge error at trial, as was the case here, he will obtain relief if the record shows he suffer ed

“ some harm.” See Alma nza v. St ate , 686 S.W.2d 15 7, 171 (1984) (op. on reh ’ g)

.10

Wilson v . State , 391 S.W.3d 131, 138 (Tex. App.

— Texarkana 2012, no pet.) (citing Abdnor , 871
S.W.2d at 731

– 32)). At trial , Richard objected to the language in the indictment, arguing “ that
because the State in dicted it as inten ti onally and kno wingly, b y putting t h e ‘ or, ’ it lessens the
b urden to only needing to achieve knowingly. They indicted it as intenti onally and knowingly. ” The trial court overruled Richard’s objection.
T he Tex as Court of Criminal Appeals has long approve d the practice of pleading
alternat i v e elemen ts of an offense conjunctively and charging the jury disjunctively , whenever the statutory langu age is disjunctive

. Nickerson v. State , 782 S.W.2d 887, 891 (T e x. Cr im. App. 1990). Section 481.115 (a) of the Te xas Health and Saf ety Code states, “ E x cept as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1 or 1

- B.” T EX

. H EALTH & S AFETY C ODE A NN

. § 481.115 (Su pp.) (emphasis added). Methamphetam i n e is a Penalty Grou p 1 substance

. T EX

. H EALTH & S AFETY C ODE A NN . § 481.102 (6) (Supp.) . Accordingly, the trial court did not err when it charged th e alternative culpable mental sta te of the offense in the disjunctiv e. 7 We overrule Richard’s second po i n t of error. III. Cu mulative Error Lastly, Richard maintains that the cumulative impact of erroneous inst ructions from the beginning of trial to the end of trial was so great that i t requires reversal. We disagree. The Texas Court of Criminal Appeals h as ne ver ruled that “non

- errors may in their
cumulative effect cause error.” Gamboa v. State , 296 S.W.3d 574, 585 (Tex. Crim A pp . 2009)

7 Because we find no error in the jury charge, we need not address harm.11

(quoting Ch amberlain v. State , 998 S.W.2d 23 0, 238 (Tex. Crim. App. 1999 ) ). Because we find
no error in Richard’s f

i r st an d second compl aints, we overrule his third point of error.
IV. Conclusion We affirm the judgment of the trial court.

Ralph K. Burges s Justice
Date Submitted: November 23 , 2021 Date Decided: Dec ember 7 , 2021
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