Date: 01-14-2017

Case Style:

Case Number: 05-15-01051-CR

Judge: Lana Myers

Court: In The Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney:

Faith Johnson  
Brian Higginbotham  

Defendant's Attorney:

Ronald L. Goranson  

Description: In his first issue, appellant contends the trial court committed fundamental error when it
“tried to define what ‘reasonable doubt’ was not.”
During voir dire, the trial court instructed the panel on the State’s burden of proof as
follows:
Well, in all criminal cases, okay, the burden of proof is the highest standard of
proof that exists in our legal system. It is known as beyond a reasonable doubt. Many of you that watch the various TV shows or movies––or legal shows may have heard the burden of proof being referred to as beyond a shadow of a doubt. I think they use that term because in the media because it has a more dramatic effect. But the actual term is beyond a reasonable doubt.
Two things I can tell you about this burden or this standard of proof, okay, one, it is the highest standard of proof that exists in our legal system. Two, it is not 100 percent proof. Highest standard or burden of proof, but not 100 percent proof, okay.
Now, some of you may be thinking out there, well, it is a criminal proceeding and an individual is looking at going to the penitentiary or going to jail, I would need 100 percent proof before I could vote guilty, given the consequences of what is at stake in that particular type of proceeding. And that’s one of those human-naturetype things that I can understand and appreciate. But the reason it is not 100 percent proof is because in order for you to be 100 percent certain of a fact, of an incident, the only way that you can be 100 percent certain of that is to observe that fact or that indent [sic] itself, okay. And it logically follows that if you observe a fact or incident pursuant to a particular case, it would be improper for you to sit as a juror to hear that case, okay.
Appellant maintains that the trial court erred because the above comments attempted to
define what reasonable doubt “was not.” Ordinarily, to preserve error for appellate review, the
complaining party must make a timely, request, objection, or motion. TEX. R. APP. P. 33.1(a)(1);
see Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999) (defendant waived complaint
about trial court’s explanation of reasonable doubt standard during voir dire by failing to renew
objection when trial court repeated explanation); Marshall v. State, 312 S.W.3d 741, 743 (Tex.
App.––Houston [1st Dist.] 2009, pet. ref’d) (to preserve error for review one must object to trial
court’s voir dire comments).
Appellant admits he did not object and, therefore, did not preserve the issue for appellate
review. However, he argues that the trial court’s comments, in particular the comment that “it is
not 100 percent proof” and the court’s subsequent “attempt to explain what proof beyond all
doubt would be,” amounted to fundamental error because it tainted appellant’s right to the
presumption of innocence. Fundamental error occurs when a “trial [court’s] comments r[i]se to


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such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury.”
Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001); Thomas v. State, No. 01–14–
00332–CR, 2015 WL 5076292, at *11 (Tex. App.––Houston [1st Dist.] Aug. 27, 2015, no pet.)
(mem. op., not designated for publication).
In this case, the trial court’s comments do not rise to the level of fundamental error.
Indeed, the comments are reminiscent of those made in O’Canas v. State, 140 S.W.3d 695 (Tex.
App.––Dallas 2013, pet. ref’d), where the trial court stated in the charge that “it is not required
that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s
proof excludes all reasonable doubt concerning the defendant’s guilt.” Id. at 700. We concluded
the trial court did not commit error, but rather that it “simply state[d] the legally correct
proposition that the prosecution’s burden is to establish proof beyond a reasonable doubt and not
all possible doubt.” Id. at 702. While the Texas Court of Criminal Appeals has held it is the
“better practice” for trial courts not to define the term “reasonable doubt,” and that the meaning
of the term should be left for the jurors themselves to supply, according to their own common
sense understanding of the words, there is no general constitutional prohibition on a trial court
defining reasonable doubt. See Fuller v. State, 363 S.W.3d 583, 587 (Tex. Crim. App. 2012);
Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000); Castillo v. State, 913 S.W.2d 529,
535 (Tex. Crim. App. 1995); see also Denver v. State, Nos. 05–14–00817–CR, 05–14–00818–
CR, & 05–14–00819–CR, 2016 WL 661034, at *2 (Tex. App.––Dallas Feb. 18, 2016, pet. ref’d)
(mem. op., not designated for publication).
Furthermore, other courts, including this Court, have concluded that comments similar to
those made here do not rise to the level of fundamental error. See, e.g., Wilkerson v. State, 347
S.W.3d 720, 726 (Tex. App.––Houston [14th Dist.] 2011, pet. ref’d) (no fundamental error when
a trial court defined reasonable doubt as “the same kind of doubt in making any kind of decision


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in our lives” and commented that “[t]he only way you can prove something beyond a shadow of
a doubt would be if all 12 jurors were eyewitnesses to the scene.”); Mohammed v. State, 331
S.W.3d 187, 194 (Tex. App.––Houston [1st Dist.] 2011, pet. ref’d) (comments on reasonable
doubt that “[i]t’s not 100 percent” and that “the law does not require that you be convinced 100
percent” did not rise to the level of fundamental error); McLean v. State, 312 S.W.3d 912, 915–
18 (Tex. App.––Houston [1st Dist.] 2010, no pet.) (trial court’s voir dire comments, which
included “the permissibility of convicting a defendant based on a single witness,” not
fundamental error); Marshall, 312 S.W.3d at 742–45 (trial court’s voir dire comments, “the
Legislature has not given me a definition” of reasonable doubt and “the Legislature figures
everybody is reasonable and they would know a reasonable doubt when they see it,” not
fundamental error); Perez v. State, No. 05–14–01196–CR, 2016 WL 58810, at *1–2 (Tex.
App.—Dallas Jan. 5, 2016, no pet.) (mem. op., not designated for publication) (trial court did not
commit fundamental error when it said the standard was “not proof beyond all doubt” and that
“there is no expectation of 100 percent proof”); Meadows v. State, Nos. 01–09–00443–CR & 01–
09–00444–CR, 2010 WL 2874199, at *6 (Tex. App.––Houston [1st Dist.] July 22, 2010, pet.
ref’d) (mem. op., not designated for publication) (trial court did not commit fundamental error in
stating, among other things, that reasonable doubt was “[y]ou know, kind of like obscenity, you
know it when you see it, that kind of thing,” and that “it is a very high standard but it’s not 100
percent proof,” because court did not convey any opinion as to defendant’s guilt or innocence).
Appellant admits that “[t]his Court of Appeals has held the issue to not be fundamental
error.” He invites us to revisit the issue, but has not cited a single case where comments by a
trial court similar to those made here were held to constitute fundamental error, nor have we
found such a case. We therefore decline appellant’s invitation and conclude the trial court’s
comments do not rise to the level of fundamental error, and that appellant failed to preserve any


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further complaint about the above comments by not objecting to them in the trial court. We
overrule appellant’s first issue.
II. Jury Argument
In his second issue, appellant argues the prosecutor’s jury argument “that the
presumption of innocence ended when the jury began to hear evidence” constituted fundamental
error.
The complained-of argument occurred during the State’s closing argument at the guilt
and innocence phase of the trial. The prosecutor stated in part:
He has the right to the presumption of innocence. But that presumption of innocence only goes until you start to hear evidence from the State. Because remember, the State has the burden of proof to each and every one of the elements. And we brought witnesses who testified to each and every one of those elements. And you started with the presumption of innocence, but once you started hearing all of the testimony, seeing all the different documents, photos, physical evidence that was placed into evidence, we have proved to you beyond a reasonable doubt that the defendant committed these two offenses.
There was no objection to the above comments.
To preserve error regarding improper jury argument for appellate review, a defendant
must object and pursue his objection to an adverse ruling. See Estrada v. State, 313 S.W.3d 274,
303 (Tex. Crim. App. 2010); see also TEX. R. APP. P. 33.1(a). A defendant must
contemporaneously object to the statement, request an instruction that the jury disregard the
statement if the objection is sustained, and move for a mistrial if an instruction to disregard is
given. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). A defendant’s failure to
object to a jury argument, or failure to pursue an adverse ruling to his objection to the jury
argument, forfeits his right to complain about the jury argument on appeal. Cockrell v. State,
933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Even if the jury argument error was such that it
could not be cured by an instruction, a defendant is still required to object and request a mistrial.
Mathis v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002).


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Appellant concedes his failure to object to the allegedly improper jury argument, but he
argues the State’s comments constituted fundamental error because they deprived him of the
presumption of innocence. However, the court of criminal appeals has repeatedly held that a
defendant must object to preserve a complaint that the State’s jury argument was improper. See
Mays v. State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010) (because appellant failed to object
to propriety of prosecutor’s jury arguments at trial, he failed to preserve any issue for appeal);
Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (because appellant failed to
object to jury argument at trial, he forfeited right to raise issue on appeal); Mathis, 67 S.W.3d at
926–27 (reiterating rule that even if jury argument error could not be cured by instruction,
defendant is still required to object and request mistrial). The case that is discussed at length by
appellant, Miles v. State, 204 S.W.3d 822 (Tex. Crim. App. 2006), is distinguishable because it
did not concern a State’s allegedly improper jury argument, but a defendant’s jury argument that
was improperly limited by the trial court when it sustained the State’s objection. See id. at 827.
As such, Miles did not present a preservation issue like the one we face here. Appellant has not
cited authority showing that a State’s jury argument rose to the level of fundamental error such
that the appellant did not have to object to preserve the issue for review, nor has our own
research found such authority. Accordingly, because appellant failed to object at trial, he lost the
right to complain about the allegedly improper jury argument on appeal. We overrule
appellant’s second issue.
III. Sufficiency of the Evidence
In his third issue, appellant contends the evidence is insufficient to support the jury’s
guilty verdict.
In reviewing the sufficiency of the evidence, we consider all the evidence in the light
most favorable to the jury’s verdict and determine whether any rational trier of fact could have


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found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). The trier
of fact is the sole judge of the weight and credibility given to witness testimony. Cain v. State,
958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not act as the “thirteenth juror” and
reweigh the jury’s determinations of the weight or credibility of the evidence. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The standard is the same for both direct and
circumstantial evidence. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). The State
need not disprove all reasonable hypotheses that are inconsistent with the defendant’s guilt. Id.
Rather, a court considers only whether the inferences necessary to establish guilt are reasonable
based upon the cumulative force of all the evidence when considered in the light most favorable
to the verdict. Id.; see also Hooper v. State, 214 S.W.3d 9, 12 (Tex. Crim. App. 2007).
Appellant was convicted of aggravated robbery. Section 29.03(a) of the Texas Penal
Code provides that a person commits the offense of aggravated robbery if he commits robbery
and he (1) causes serious bodily injury to another; (2) uses or exhibits a deadly weapon; or (3)
causes bodily injury to another person or threatens or places another in fear of imminent bodily
injury or death, if the other person is sixty-five years of age or older or a disabled person. TEX.
PENAL CODE ANN. § 29.03(a)(1)–(3). A person commits robbery if, in the course of committing
theft, and with intent to obtain or maintain control of the property, he intentionally or knowingly
threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a)(2). A
firearm is a deadly weapon. Id. § 1.07(a)(17)(A).
The record shows that on the evening of April 29, 2014, Megersa Degechisa was working
as a cashier at the In and Out Food Mart, a convenience store located at the 2900 block of
Walnut Hill Lane in Dallas, Texas. Shortly after 11:00 p.m., a man, later identified as appellant,
entered the store and went up to the counter as though he was going to buy a bag of peanuts.


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When Degechisa started to ring up the transaction, the man pointed a gun at the cashier and
ordered him to hand over all of the money he had. Degechisa feared the man would kill him. He
begged the man not to kill him, offered to give him all of the money, and told the man he had
children.
Degechisa opened the register and gave the man $200 from the “safe drop” and the rest of
the money that was in the register––mostly fives, tens, and assorted bills. The man grabbed the
money and moved towards the entrance, firing the gun in Degechisa’s direction before leaving.
The shot did not hit the cashier but he feared at that moment, according to Degechisa’s
testimony, that he would be killed. As he told the jury, he believed that he was dead when he
saw the man fire the gun. Degechisa called 9-1-1 after the man left the store. The incident was
captured on in-store surveillance camera video that was admitted into evidence and played for
the jury. Degechisa identified the robber as appellant.
Meanwhile, at around 11:00 p.m. on that evening, Vanessa Renteria had parked her 2005
Ford Explorer in front of her townhome at the 9900 block of Brockbank Drive, which was
located behind the In and Out Food Mart. She left the vehicle running with the hazard lights on
so she could run inside and grab her wallet. Her mother, Maria Lopez, stood at the front door
and kept watch on the vehicle. Lopez saw a man walking across the street from where she was
standing. He was a light-skinned male who appeared to be Hispanic, “kind of tall,” and was
wearing a dark hoodie with white lettering and dark pants. Lopez noticed that the man seemed
“kind of nervous” and was “fidgeting” as he crossed the street. Then the man jumped in the
Explorer and drove away. He did not say anything. Renteria, who was upstairs at the time,
heard her mother yell, “He just took off in your truck.” They called the police and reported that
the vehicle had been stolen.
Dallas Police Department Officers Terry Paxton and Armando de la Luz were on patrol


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that evening when they saw a blue Ford Explorer stopped at a red light at the 2000 block of
Lombardy Lane without its headlights on. The officers decided to perform a traffic stop and
turned around to get behind the Explorer, but before they could do so the vehicle drove off at a
high rate of speed through the intersection while the light was still red. In keeping with
departmental policy, the officers did not pursue the vehicle for the traffic violation. They
followed it and tried to stay in contact, but lost the vehicle as it drove away. At around this time,
the officers received a dispatch about a blue Ford Explorer that had been stolen, and they
suspected that the Explorer they had just seen was the suspect vehicle. The officers continued
searching the area, finding the vehicle less than a minute later wrecked in front of a Pappa
Brothers’ restaurant at the 10,000 block of Lombardy Lane. The vehicle had left the street and
was at the bottom of an embankment with a broken wheel well. The driver was nowhere to be
found. The officers asked some workers standing outside a nearby Pappadeaux’s restaurant
where the driver was, and they told the officers that he had gotten out of the vehicle and was
headed in a northwest direction. Officer Paxton reported this information over the police radio.
Officer Richard Stewart, who was a “plain clothes” undercover officer, heard the report
about the wrecked vehicle and that the suspect had fled the scene. The suspect was described as
a Latin male wearing a green shirt. Officer Stewart talked to the Pappadeaux’s restaurant
employees who had been standing outside, and they told him that they saw someone run across
the parking lot and jump the fence. Officer Stewart drove around to the front side of the
business, where the suspect had last been seen. Close to a nearby Valero gas station and a bank,
he saw a “Latin male” in a green sweatshirt who was walking toward Northwest Highway.
Officer Stewart was in plain clothes and in an unmarked vehicle, so he did not approach the
individual, identified in court by Officer Stewart as appellant, but the officer reported this
information over the police radio. As squad cars arrived at the location, Officer Stewart saw the


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individual pulling money out of his pockets and throwing it into the bushes. Uniformed officers
took appellant into custody. When Officer Stewart went over to the area where appellant had
been standing, he found some money, a receipt to a gas station, and a bank deposit slip.
Officer David Pillar was one of the officers who arrested appellant. He testified that he
had been on patrol in the area when he heard over the radio that “a Latin male with a green
hoodie with white lettering” was suspected of being involved in a robbery and had fled on foot.
Officer Pillar drove around to the 2200 block of Northwest Highway, pulled into a gas station,
and saw appellant walking across a nearby bank’s parking lot. Officer Pillar testified that
appellant matched the physical description of the suspect. The officer got out of his vehicle and
approached appellant. Appellant put his hand into his pocket, at which point Pillar drew his
service weapon. Appellant pulled his hand out of his pocket and threw money into the bushes.
Officer Pillar took appellant into custody. After appellant was placed under arrest, the officer
searched the area and found money in the bushes and a deposit slip that was from the In and Out
Food Mart.
Other Dallas officers also found money in addition to other evidence. Officer Manuel
Ortiz testified that, after appellant’s arrest, he observed “several bills and a receipt . . . from the
In and Out that had just been robbed” in the bushes near the bank. When Officer Ortiz searched
the gas station, he found a Glock 9 millimeter pistol in “very close proximity” to where appellant
had been arrested. Officer Santiago Carrasco, a crime scene analyst, likewise testified that he
saw “a good amount of money, bills[,] in the bushes.” He also found, next to the money, a bank
deposit receipt that had the address of the In and Out Food Mart that had been robbed. The
receipt had the name “Megersa” handwritten across the top. Officer Carrasco collected the 9
millimeter pistol and took pictures of the wrecked Explorer. Renteria testified that the wrecked
Ford Explorer was the vehicle that had been stolen from her on the night of the In and Out Food


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Mart robbery. Detective Steve Hough of the crime scene unit found a Winchester 9 millimeter
cartridge case on the floor of the In and Out Food Mart. He also fingerprinted the counter and
took a DNA swab of the bag of nuts, which was still sitting on the counter.
Susan Kerr, a forensic firearms examiner with the Dallas Police Department, testified that
she compared the 9 millimeter shell casing found at the In and Out Food Mart to a test-fired
casing from the Glock 9 millimeter pistol found near where appellant was arrested, and
concluded that the shell casing found at the In and Out Food Mart had been fired from the Glock
pistol.
Appellant argues the evidence is insufficient to show he committed the robbery of the In
and Out Food Mart on April 29, 2014. He asserts there is no testimony that the person captured
in the video was identified as appellant; that no one stated that appellant dropped the deposit
receipt from the food mart or the pistol; that no one identified appellant as the driver of the stolen
vehicle; and that no one identified the money appellant was seen throwing into the bushes as the
money taken from the In and Out Food Mart.
However, the record shows that Degechisa identified appellant in court and told the jury
that appellant was the man who robbed him. Renteria testified that the wrecked Ford Explorer
was the same one that had been stolen from her earlier that night near the In and Out Food Mart.
Officers Stewart, Pillar, and Ortiz also identified appellant in court. The green hoodie with white
lettering was admitted into evidence, and Degechisa and Officer Pillar agreed it was the same
sweatshirt appellant was seen wearing that night. The in-store surveillance video, shell casing,
handgun, and safe-drop receipt, all admitted into evidence, also support the jury’s verdict.
Therefore, we conclude there is sufficient evidence upon which a rational jury could have found
beyond a reasonable doubt that appellant committed aggravated robbery as charged in the
indictment. We overrule appellant’s third issue.

Outcome: