IN THE

TENTH COURT OF APPEALS

No. 10-08-00024-CR

NATALIE COLE ROCHA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2007-1142-C1

MEMORANDUM OPINION

Rocha appeals her conviction for first-degree-felony murder. See TEX. PENAL CODE 

ANN. § 19.02(b)-(d) (Vernon 2003). We affirm.

Venire-Panel Examination. In Rocha‖s first issue, she complains of the trial court‖s 

examination of the venire panel. Rocha contends that the trial court‖s admonishments 

violated the presumption of Rocha‖s innocence and commented on the weight of the 

evidence.

“[T]he presumption of innocence, although not articulated in the” United States 

“Constitution, is a basic component of a fair trial under our system of criminal justice.” 
Rocha v. State Page 2

Delo v. Lashley, 507 U.S. 272, 278 (1993) (quoting Estelle v. Williams, 425 U.S. 501, 503 

(1976)) (alteration added); see Taylor v. Kentucky, 436 U.S. 478, 483-86 (1978); In re 

Winship, 397 U.S. 358, 363 (1970); Coffin v. United States, 156 U.S. 432, 453, 458-61 (1895). 

“[T]he criminal process presumes that the defendant is innocent until proved guilty.” 

Deck v. Missouri, 544 U.S. 622, 630 (2005); accord Coffin at 453; Cummings v. Missouri, 71 

U.S. 277, 330 (1867); Walters v. State, 247 S.W.3d 204, 210 (Tex. Crim. App. 2007); 

Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994); Cloud v. State, 150 Tex. 

Crim. 458, 461, 202 S.W.2d 846, 848 (1947) (op. on reh‖g); Black v. State, 1 Tex. Ct. App. 

368, 386-92 (1876). “The presumption operates at the guilt phase of a trial to remind the 

jury that the State has the burden of establishing every element of the offense beyond a 

reasonable doubt.” Lashley, 507 U.S. at 278 (citing Kentucky v. Whorton, 441 U.S. 786, 789 

(1979) (per curiam)). A presumption-of-innocence protects against “a ―genuine danger‖ 

that the jury will convict based on something other than the State‖s lawful evidence, 

proved beyond a reasonable doubt.” Id. (quoting Whorton, 441 U.S. at 789) (internal 

quotation marks omitted). “The presumption of innocence is a doctrine that allocates 

the burden of proof in criminal trials; it also may serve as an admonishment to the jury 

to judge an accused‖s guilt or innocence solely on the evidence adduced at trial and not 

on the basis of suspicions that may arise from the fact of his arrest, indictment, or 

custody, or from other matters not introduced as proof at trial.” Bell v. Wolfish, 441 U.S. 

520, 533 (1979) (citing Taylor at 485). The term “is ―an inaccurate, shorthand description 

of the right of the accused to “remain inactive and secure, until the prosecution has 

taken up its burden and produced evidence and effected persuasion; . . .” an 
Rocha v. State Page 3

“assumption” that is indulged in the absence of contrary evidence.‖” Id. (quoting Taylor

at 484 n.12); Miles v. State, 204 S.W.3d 822, 825 (Tex. Crim. App. 2006), cert. denied, 127 

S. Ct. 1496 (2007); Madrid v. State, 595 S.W.2d 106, 110 (Tex. Crim. App. [Panel Op.] 

1979) (op. on orig. submission).

Texas Code of Criminal Procedure Article 38.05 prohibits the trial court‖s 

commenting on the weight of the evidence by providing that the trial court must not, 

“at any stage of the proceeding previous to the return of the verdict, make any remark 

calculated to convey to the jury his opinion of the case.” TEX. CODE CRIM. PROC. ANN.

art. 38.05 (Vernon 1979); see Brown v. State, 122 S.W.3d 794, 798-99 (Tex. Crim. App. 

2003); Hay v. State, 472 S.W.2d 157, 161 (Tex. Crim. App. 1971); Harlan v. State, 416 

S.W.2d 422, 423-24 (Tex. Crim. App. 1967).

Texas Rule of Appellate Procedure 33.1 generally provides:

As a prerequisite to presenting a complaint for appellate review, the record 

must show that:

(1) the complaint was made to the trial court by a timely request, 

objection, or motion . . . and

(2) the trial court . . . ruled on the request, objection, or motion . . . .

TEX. R. APP. P. 33.1(a). “The only essential requirement to ensure preservation is a 

specific, timely request that is refused by the trial court.” Cruz v. State, 225 S.W.3d 546, 

548 (Tex. Crim. App. 2007); accord Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 

2004). Rule 33.1 is a “‖judge-protecting‖ rule[] of error preservation.” Reyna v. State, 168 

S.W.3d 173, 177 (Tex. Crim. App. 2005) (quoting Martinez v. State, 91 S.W.3d 331, 335 

(Tex. Crim. App. 2002)). “[T]he party complaining on appeal . . . about a trial court‖s” 
Rocha v. State Page 4

ruling “must, at the earliest opportunity, have done everything necessary to bring to the 

judge‖s attention the . . . rule or statute in question and its precise and proper 

application to the” matter “in question.” Id. (quoting Martinez, 91 S.W.3d at 335-36) 

(alterations added). “Except for complaints involving systemic (or absolute) 

requirements, or rights that are waivable only[,] . . . all other complaints, whether 

constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 

33.1(a).” Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004) (quoting Mendez v. 

State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004)) (bracketed alteration added); see 

Cameron v. State, 241 S.W.3d 15, 22 (Tex. Crim. App. 2007); Amador v. State, 221 S.W.3d 

666, 671 n.9 (Tex. Crim. App. 2007); Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. 

App. 1993).

Error pursuant to Code of Criminal Procedure Article 38.05, in particular, is 

forfeited by failure to object. See Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 

1983); Downey v. State, 505 S.W.2d 907, 909 (Tex. Crim. App. 1974); Steese v. State, 170 

Tex. Crim. 269, 272-73, 340 S.W.2d 49, 52 (1960); Resendez v. State, 160 S.W.3d 181, 189-90 

(Tex. App.—Corpus Christi 2005, no pet.).

Rocha failed to object to the trial court‖s admonishments at trial. But Rocha argues 

that the admonishments “being fundamental error, no objection was required.” (Br. at 9 

(citing, e.g., Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op)).) In 

Blue v. Texas, the four-judge plurality of the Texas Court of Criminal Appeals held that 

“comments of the trial judge, which taint [the] appellant‖s presumption of innocence in 

front of the venire, [a]re fundamental error of constitutional dimension and require[] no 
Rocha v. State Page 5

objection.” Blue, 41 S.W.3d at 132 (plurality op.); see Brumit v. State, 206 S.W.3d 639, 641, 

644-45 (Tex. Crim. App. 2006); Sanchez v. State, 120 S.W.3d 359, 366 n.18 (Tex. Crim. 

App. 2003). In a concurrence, one judge would have held that a comment on the weight 

of the evidence in violation of Article 38.05 can constitute such fundamental error. Blue, 

41 S.W.3d at 133, 134-35 (Mansfield, J., concurring); see Sanchez, 120 S.W.3d at 366 n.18.

“Many . . . admonitory or cautionary instructions are customarily used by criminal 

trial judges at the time of the voir dire examination of the jury panel and at various 

intervals of a trial to guard against jury misconduct. The giving of such instructions is 

largely within the discretion of the court . . . .” Walker v. State, 440 S.W.2d 653, 658 (Tex. 

Crim. App. 1969) (internal citation omitted); see Hernandez v. State, 169 Tex. Crim. 418, 

421, 334 S.W.2d 299, 301-302 (1960); see generally Green v. State, 934 S.W.2d 92, 106 (Tex. 

Crim. App. 1996); Etheridge v. State, 903 S.W.2d 1, 9 (Tex. Crim. App. 1995); Nunfio v. 

State, 808 S.W.2d 482, 484 (Tex. Crim. App. 1991).

Rocha complains of the following admonishments:

[The defendant] . . . is presumed innocent until the State meets its burden and 

proves the defendant guilty. That presumption of innocence is just that. It is a 

presumption. It does not mean that a defendant in any given criminal trial is 

actually innocent. It simply means that they must be presumed innocent until

the State satisfies and meets its obligation of proving the defendant guilty.

. . . .

The defendant, if they choose to, never has to lift a finger or say a word, and 

you must still presume them innocent until the State has convinced you 

otherwise.

(Rocha Br. at 7 (quoting 3 R.R. at 12, 15) (emphasis and alterations added by Rocha).) 

Rocha argues, “By repeatedly using the work ―until‖ instead of ―unless,‖ the judge 

made it plain to the jury panel that the judge fully expected the State to be able to prove 
Rocha v. State Page 6

its case.” (Br. at 7.) As Rocha argues, too, “The presumption embodies the fact that the 

State has the burden of proof, and that the defendant may remain inactive until that 

burden is met.” (Id. at 7-8 (citing Miles, 204 S.W.3d at 825) (emphasis added).) 

In evaluating the trial court‖s admonishments to the venire panel, we consider all of 

those admonishments. See, e.g., Blue, 41 S.W.3d at 130 (plurality op.). Here, for 

example, immediately before the admonishments of which Rocha complains, the trial 

court admonished the panel as follows:

A criminal case in the State of Texas—in fact, in most states—proceeds along 

two possible paths. The first part of the trial, the jury that is actually selected 

will hear facts about the allegations and about the offense charged. That‖s 

called the guilt/innocence phase of the trial. . . . If and when the defendant is 

found guilty, and only if the defendant is found guilty, does a criminal trial 

proceed to the second part of the trial called the punishment phase where the 

jury will determine what the appropriate punishment will be. At the first 

phase of the trial, the one I just described to you, the guilt/innocence phase, 

the State has what is called the burden of proof. They are the ones who have to 

bring forward the evidence in the case and try to convince the jury beyond a 

reasonable doubt of the defendant‖s guilt. The State always has that burden of 

proof at the guilt/innocence phase of the trial. It never shifts to the defendant. 

The defendant in this case or any other criminal case never has to prove 

anything. All they have to do is be there. They don‖t have to say a word. 

They don‖t have to put on any evidence. They don‖t have to do anything 

because it‖s the State‖s responsibility to convince the jury of the defendant‖s 

guilt. These are the same rights that you have if you‖re charged with an 

offense, the same rights that I have, the same rights that we have throughout 

this country based on the constitution of the United States and of our own state 

constitution and our state laws. . . .

As I have already alluded, the State has the burden of proof . . . .

(3 R.R. at 10-12.)

Rocha does not show that the trial court‖s admonishments tainted Rocha‖s 

presumption of innocence or commented on the evidence by suggesting that the trial 
Rocha v. State Page 7

court believed that the State would successfully prove the case against Rocha, or that 

the trial court abused its discretion in its admonishments. Rocha forfeits her complaint. 

We overrule Rocha‖s first issue.

Jury Charge. In Rocha‖s second and third issues, she contends that the trial court 

erred in its instructions to the jury.

Texas Code of Criminal Procedure Article 36.19, governing review of charge error, 

provides:

Whenever it appears by the record in any criminal action upon appeal that 

any requirement of Articles 36.14 [or] 36.16 . . . has been disregarded, the 

judgment shall not be reversed unless the error appearing from the record was 

calculated to injure the rights of [the] defendant, or unless it appears from the 

record that the defendant has not had a fair and impartial trial. 

TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 2006); see id. art. 36.14 (Vernon 2007), art. 

36.16 (Vernon 2006); Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006) (citing 

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh‖g). Among the 

requirements of Article 36.14 is that the charge must “distinctly set[] forth the law 

applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14.

“Article 36.19 . . . sets” two “standards for reversal; error that was called to the 

court‖s attention will lead to reversal if there was some harm to the appellant, but 

unobjected-to error calls for reversal only if it was so egregious as to deprive the 

appellant of a fair and impartial trial.” Flores v. State, 224 S.W.3d 212, 212-13 (Tex. Crim. 

App. 2007); accord Williams v. State, No. AP-74,391, 2008 Tex. Crim. App. LEXIS 692, at 

*53 (Tex. Crim. App. June 11, 2008); Oursbourn v. State, No. PD 1687-06, 2008 Tex. Crim. 
Rocha v. State Page 8

App. LEXIS 686, at *28, *42-43, *48-49 (Tex. Crim. App. June 4, 2008); Almanza, 686 

S.W.2d at 171-72. 

Under the latter standard, error may be “regarded as ―fundamental‖—that is to say, 

it may subject the conviction to reversal on appeal regardless of whether the appellant 

raised an objection to it in the trial court—if the error caused the appellant ―egregious 

harm.‖” Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006) (quoting Almanza, 

686 S.W.2d at 171, 172). “Errors that result in egregious harm are those that affect ―the 

very basis of the case,‖ ―deprive the defendant of a valuable right,‖ or ―vitally affect a 

defensive theory.‖” Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005) (quoting 

Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)); accord Madden v. State, 242 

S.W.3d 504, 513 (Tex. Crim. App. 2007); Almanza at 172.

In evaluating the harm from charge error, we consider:

(1) the charge itself;

(2) the state of the evidence including contested issues and the weight of the 

probative evidence;

(3) arguments of counsel; and

(4) any other relevant information revealed by the record of the trial as a 

whole.

Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006) (citing Hutch, 922 S.W.2d at 

171); accord Almanza, 686 S.W.2d at 171.

Guilt-or-Innocence. In Rocha‖s second issue, she complains of the charge in the guiltor-innocence phase of trial. 
Rocha v. State Page 9

Code of Criminal Procedure Article 36.14 provides:

[I]n each felony case . . . , the judge shall, before the argument begins, deliver to 

the jury . . . a written charge distinctly setting forth the law applicable to the 

case; not expressing any opinion as to the weight of the evidence, not summing 

up the testimony, discussing the facts or using any argument in his charge 

calculated to arouse the sympathy or excite the passions of the jury. Before 

said charge is read to the jury, the defendant or his counsel shall have a 

reasonable time to examine the same and he shall present his objections thereto 

in writing, distinctly specifying each ground of objection. . . .

TEX. CODE CRIM. PROC. ANN. art. 36.14; see id. art. 38.05.

Code of Criminal Procedure Article 36.16 provides:

After the judge shall have received the objections to his main charge, 

together with any special charges offered, he may make such changes in his 

main charge as he may deem proper, and the defendant or his counsel shall 

have the opportunity to present their objections thereto . . . , and thereupon the 

judge shall read his charge to the jury as finally written, together with any 

special charges given, and no further exception or objection shall be required of 

the defendant in order to preserve any objections or exceptions theretofore 

made. . . . The failure of the court to give the defendant or his counsel a 

reasonable time to examine the charge and specify the ground of objection 

shall be subject to review either in the trial court or in the appellate court.

TEX. CODE CRIM. PROC. ANN. art. 36.16.

In concluding reading from its written charge, the trial court instructed the jury, “―If 

you disagree about the evidence, the presiding juror may apply to the Court and have 

the court reporter‖s notes read to the jury.‖” (6 R.R. at 133 (quoting I C.R. at 91).) 

The trial court, no longer reading from its written charge, then stated as follows, of 

which statement Rocha complains:

Ladies and gentlemen, I want to talk to you a moment about that last sentence 

there about communicating with the Court and disagreeing with the evidence. 

It is not infrequent that we will get a communication from the jury asking to 

have the transcript of testimony given to you, testimony transcribed by the 

court reporter. I will not be able to comply with that request if you send one 
Rocha v. State Page 10

out unless it meets the very stringent and specific terms. The only time you 

can get the court[] reporter‖s notes is if you have a specific disagreement about 

a specific piece of testimony. Let‖s say in this case it concerns one of the bottles 

and you remember one witness saying this, something about it, and you 

remember another witness saying something else. If you tell me what the 

specific disagreement is about the specific point in the trial and point that out 

to me in your request, then and only then can we get that small portion of the 

court reporter‖s notes sent in to you.

(Rocha Br. at 13 (quoting 6 R.R. at 133-34) (bracketed alteration added).)

In referring to evidence of “one of the bottles,” (see 6 R.R. at 134), the trial court 

refers to evidence of three bottles found at the crime scene. A carbonated drink bottle 

had the fingerprint of State‖s witness Rory Pullen. The lid of an ammonia bottle had a 

mixture of the DNA of Rocha and the victim. The mouth of a bleach bottle had a 

mixture of the DNA of Rocha, the victim, and an unknown person. 

Rocha argues: 

First, this portion of the charge was not in writing. Second, the judge 

commented on the weight of the evidence by indicating to the jury his opinion 

that the DNA evidence was important to its decision. Third, there was no 

opportunity for defense counsel to make objections; he did not have an 

opportunity to. Furthermore, in addition to violations of article 36.14, article 

36.16 was violated: “The failure of the court to give the defendant or his 

counsel a reasonable time to examine the charge and specify the ground of 

objection shall be subject to review either in the trial court or in the appellate 

court.”

(Br. at 13-14 (internal citation omitted) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.16)); 

TEX. CODE CRIM. PROC. ANN. art. 36.14. 

We assume without deciding that, as Rocha argues, the trial court‖s statements 

constitute charge error. But we cannot assume, as Rocha argues, that Rocha preserved a 

charge objection. We perceive no hindrance to Rocha‖s objecting at the time that the 
Rocha v. State Page 11

trial court made the statements of which Rocha complains. Accordingly, we evaluate 

those statements for egregious harm rather than, as Rocha argues, for some harm.

As to the entirety of the charge, Rocha argues that what she calls the trial court‖s 

“‖oral‖ jury-charge instruction stood out precisely because it was oral.” (Br. at 15.) But 

the trial court at the same time instructed the jury on, for example, jury notes and the 

responses thereto. Rocha makes no other objection to the guilt-or-innocence charge. 

The State argues that the instruction of which Rocha complains was a correct statement 

of the law. See TEX. CODE CRIM. PROC. ANN. art. 36.28 (Vernon 2006); Howell v. State, 175 

S.W.3d 786, 790-92 (Tex. Crim. App. 2005); Robison v. State, 888 S.W.2d 473, 480-81 (Tex. 

Crim. App. 1994); Moore v. State, 874 S.W.2d 671, 673 (Tex. Crim. App. 1994). The trial 

court also instructed the jury against considering anything the trial court said as a 

comment on the weight of the evidence in the following terms:

You are instructed that you are not to allow yourselves to be influenced in 

any degree whatsoever by what you may think or surmise the opinion of the 

Court to be. The Court has no authority by word or act to indicate an opinion 

regarding any matter of fact involved in this case, nor to indicate any desire 

respecting the outcome. The Court has not intended to express any opinion 

upon any matter of fact in this case, and if you have observed anything which 

you have interpreted as the Court‖s opinion upon any matter of fact in this 

case, you must wholly disregard it.

(I C.R. at 91; see 6 R.R. at 132-33.)

As to the trial evidence, Rocha argues that Pullen and another State‖s witness “had 

equal access to” the victim, and challenges those witnesses‖ credibility. (Br. at 15.) 

Rocha argues that Rocha‖s DNA evidence on two of the bottles “was the only physical 

evidence linking [Rocha] to the murder.” (Id.) The State‖s theory of the case was that 
Rocha v. State Page 12

Pullen‖s fingerprint corroborates that he was at the scene of the crime, and that Rocha‖s 

DNA evidence on the cleaner bottles shows that she used them to attempt to clean up 

the scene. 

As to the argument of counsel, Rocha points out that the State‖s argument, and 

Rocha‖s to a lesser degree, relied on the DNA evidence. The State emphasized the 

presence of Rocha‖s DNA evidence and Pullen‖s fingerprint evidence; Rocha 

emphasized that the DNA evidence showed the presence of an unknown person.

As to other evidence, Rocha argues that there is no other relevant evidence. The 

State argues that in referring to the bottles, the trial court did not clearly refer to the 

incriminating DNA evidence on two of the bottles.

Rocha did not suffer egregious harm from the trial court‖s suggestion that the jury 

might disagree about witness testimony so as to call into question the State‖s evidence.

We overrule Rocha‖s second issue.

Punishment. In Rocha‖s third issue, she complains of the charge in the punishment 

phase of trial. 

Rocha complains of the following instruction:

Do not let personal bias, prejudice, sympathy or resentment on your part, or 

any such personal emotion on your part, enter into your deliberations or affect 

your verdict in this case.

(Br. at 18 (quoting C.R. at 97-98); see 7 R.R. at 58.)

Rocha argues that “it violates the Eighth and Fourteenth Amendments for the jury 

to be instructed not to consider sympathy during punishment.” (Br. at 18); see U.S.

CONST. amend. VIII, amend. XIV, § 1. But the United States Supreme Court has held 
Rocha v. State Page 13

that the jurors need not “be allowed to base the sentencing decision upon the sympathy 

they feel for the defendant after hearing his mitigating evidence.” Saffle v. Parks, 494 

U.S. 484, 489 (1990); accord Wilson v. State, No. 10-07-00171-CR, 2008 Tex. App. LEXIS 

5138, at *8-11 (Tex. App.—Waco July 9, 2008, no pet. h.).

The trial court did not err in its anti-sympathy instruction. We overrule Rocha‖s 

third issue.

CONCLUSION. Having overruled Rocha‖s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurs in the judgment with a note) *

Affirmed

Opinion delivered and filed September 24, 2008

Do not publish

[CRPM]

* “(The Bench Book for Texas Trial Judges sets forth the proper way to qualify a 

panel of prospective jurors and introduce the voir dire process in criminal cases. Bench 

Book for the Texas Judiciary, Part III, pp. 3-244 – 3-257, Texas Center for the Judiciary 

(2004). The trial judge expanded those instructions in this case in a way I do not think 

proper. See Carr v. State, 249 S.W.3d 502, 504-05 (Tex. App.—Waco 2007, pet. ref‖d) 

(error for the trial judge to speculate why defendant might choose not to testify); Duffey 

v. State, 249 S.W.3d 507, 510-11 (Tex. App.—Waco 2007, pet. ref‖d) (same). I would hold 

that the instructions beyond the scope of the Bench Book were erroneous and sustain 

issue one. I would, however, find the error harmless and affirm the judgment.)”