Opinion to issue: October 22, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00734-CR

umekki marshall, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1136263

Concurring opinion

I write in concurrence to emphasize that any attempt by the trial court to “clarify” the notion of “beyond a reasonable doubt” for the venire could, depending upon the tone of voice and other mannerisms used, easily be construed by a juror as a gloss intended to minimize the import of this standard by which a juror is to arrive at his or her very important and potentially life-altering decision.

Here, the language used was both inartful and confusing. Absent an audio recording, we cannot know, nor should we speculate as to, the tone of voice or other mannerisms possibly employed by the trial court in its communications with the venire.  That a trial judge would risk prejudicing a defendant at voir dire by speaking of legal concepts best left to trial counsel (who bear the responsibility to do so), is ill-advised.

                                                             Jim Sharp

                                                             Justice

Panel consists of Justices Jennings, Higley, and Sharp.

Publish. Tex. R. App. P. 47.2(b).

Justice Sharp, concurring.