Shawne Forrest v. the State of Texas

AFFIRMED and Opinion Filed August 13, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01209-CR

SHAWNE FORREST, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-83400-2017

MEMORANDUM OPINION
Before Justices Carlyle, Goldstein, and Breedlove
Opinion by Justice Goldstein
Shawne Forrest appeals his injury to an elderly person with a deadly weapon

conviction. A jury convicted appellant and sentenced him to seven years’

confinement. In three issues, appellant argues statements made by the trial court

during voir dire violated his due process rights, the trial court erred in denying his

request to admit video-recorded statements of a deceased witness, and the evidence

is legally insufficient to support his conviction. We affirm the trial court’s judgment.
BACKGROUND

In October 2017, appellant was charged by indictment with (1) causing

serious bodily injury to Landi Dyess by gouging Dyess’ eye with appellant’s finger

and, during the commission of the offense, appellant used or exhibited a deadly

weapon, his hand and finger and (2) causing serious bodily injury to Dyess, an

individual 65 years of age or older, by gouging Dyess’ eye with appellant’s hand and

finger. The indictment alleged the offense occurred on or about November 24, 2015,

and noted the indictment was a “re-indictment of 366-81380-2016.”

At the beginning of voir dire in October 2022, the trial court made the

following opening remarks to the jury:

And we have our jury system. People have fought and bled for it, right?
They died for those things in the Constitution, and because of that, it's
really important to me. I’ve taken a lot of oaths. Oaths to become a
citizen, to become an officer in the Air Force, to become a judge, to
become a lawyer. Those are all very important to me. And at the heart
of it we also promise to defend the Constitution. And it is, again, very
important to me that we do so. And you guys showed up and that’s part
of it. Again, that’s why we’re here. We have this system where 12
people make a decision as to what happened on a particular day. That’s
really what we’re doing on any kind of case, whether it’s a car wreck
case, felony trial or family law matter. We usually get 12 people to
decide what did or didn’t happen. And, you know, sometimes people
have an issue with that. They say, oh, well, I don’t want to come down
here because I don’t want to judge people or do any of those things.
You’re not. Again, we’re asking you in most of those situations to
make a decision about what happened on a particular day. And that’s
what a jury does. And it’s like you’re writing a little bit of a law. We,
the people of Texas, agree that on such and such date something
happened.

...

–2–
But there’s a process to what we have to do. And, again, the process is
a lot of just making sure that the rules are being followed so that we get
the right kind of people to sit on this jury, which is why we have 70 of
you guys in here today. We have 70 people. From that, we’re going to
get our 12 jurors to sit on the jury and resolve our issue for us, right?
Because there’s two sides. There’s two sides. One side thinks this, the
other side thinks this. We need 12 people to make that decision as to
which side has it right.

And I will tell you it’s an amazing thing when you get 12 strangers in a
room and they can come to a decision. It is, I think, just an amazing,
amazing thing that happens, again, not many places in the world. And
so the fact that 12 strangers come together and can make a decision like
that on a regular basis, I think just, again, gives credence to the idea that
we’re doing things the right way here. It may not be perfect. It certainly
isn’t. But it is the best there is and I can tell you that from experience,
and I tell you that from being other places. This is a system that works
really, really well.

Appellant did not object to the trial court’s comments.

The State called two witnesses in its case-in-chief, and the defense called the

appellant and two additional witnesses. Trial progressed, and the witnesses testified1

as follows.

1. Complaining Witness: Dyess testimony

Dyess testified that he was born in September 1948. On November 24, 2015,

Dyess visited several stores looking for items his daughter asked him to bring for

Thanksgiving. Dyess was driving his “old Chevy van,” and he returned to his

apartment complex, parked, briefly went inside his apartment, and returned to sit in

his van and text his daughter. Dyess heard a bump and looked into his side mirror

1
We have only addressed testimony necessary for a determination of the issues raised on appeal.
–3–
where he saw appellant approaching. Appellant’s face was “all distorted,” and he

was mumbling. Appellant said, “handicapped man, I’m going to kill you,” grabbed

the door handle, and opened the door. Appellant grabbed Dyess by the chin and the

back of the head, “spinning” Dyess’ head three times before lifting Dyess out of the

van and throwing him to the ground. Appellant jumped on Dyess and put him in a

headlock. Dyess was able to turn so that he could “breathe into [appellant’s] armpit,

but this made appellant “even more agitated.” Appellant “stuck his finger in

[Dyess’] eye” and “just kept doing it.” Dyess “hear[d] a voice and it said, ‘in your

pocket.’” Dyess “had a calm, a peace over” him, and he reached his free right hand

into his pocket and got a “little knife”2 out of his pocket and “squeezed it open.”

Dyess “stuck it to [appellant’s] back” and “thought he’s going to run,” but appellant

“didn’t do anything.” Dyess considered reaching up and raking appellant with the

knife, but he “had another thought” that he should not do that because then appellant

would get the knife and Dyess would be “the one that’s going to die.” When

appellant did not react to repeated stabbing, Dyess started “sewing machine-type

stabbing” and called for help. A neighbor heard Dyess, and the neighbor and

“somebody else come running” and pulled appellant off Dyess. Dyess pulled

himself under the van and said “don’t let him get me again.” When Dyess came out

from under the van, someone helped him call his daughter and told her he had been

2
The State introduced a photo of Dyess’ knife showing that it was “about three and a half inches long”
and had a “little indentation so that you can open it with one hand.”
–4–
attacked. Dyess’ daughter “got there before the police did.” Meanwhile, Dyess got

in his van and “just wanted to get away,” so he “drove around little a horseshoe,” hit

the brake, and “may have gone out then” because he did not remember “them taking

me out of the van or anything.” As a result of the assault, Dyess permanently lost

the sight in his right eye.

2. Eyewitness testimony:

Andrea Quinonez testified she lived in Dyess’ apartment complex in

November 2015. On the evening of the offense, Quinonez was driving back to her

assigned parking spot with her mother and sister in the car when she saw that a van

was parked across from her parking spot so that she could not pull in. Quinonez

recognized the van “because it belonged to someone that lived there.” Quinonez

looped around to park in the visitor’s parking. On her way, she saw a man standing

in the roadway. The man’s “pants were very low and he was very agitative.” The

man’s hands were in the air, and he was screaming “something about aliens” and

jumping. Because it was so cold outside, “he had all this smoke so, obviously, he

was sweating a lot.” Quinonez was “fearful” of the man and concerned because she

had her mother and sister in the car. Once Quinonez parked her car, the man was

right behind her, and she made sure the doors were locked and told her mother and

sister not to get out of the car. The man “kept saying stuff about the aliens and the

end of the world.”

–5–
Quinonez called 9-1-1 and told the operator there was a strange man in her

apartment complex and she was scared. As she continued to speak with the operator,

Quinonez decided to back up her car, and the 9-1-1 operator asked for the man’s

location. Quinonez answered that she could not see because the man “sprinted pretty

quickly towards that way where my parking spot was.” As Quinonez drove back to

her parking spot, she saw the man and another gentleman “and he was on top of that

gentleman against that van that was parked behind my car.” Quinonez identified the

man as appellant and the other gentleman as Dyess, whom she knew. When

Quinonez saw that appellant had Dyess in a headlock, she “started honking to see if

[she] could get anyone’s attention.” Quinonez’ mother told her to “keep going

because she was scared of the situation,” so Quinonez looped around and got out of

the apartment complex before coming back to the area.

When she returned to the scene, Quinonez saw that appellant and Dyess had

been separated by other neighbors, but Dyess “was on the floor and he was holding

his face.” Dyess was “very distraught” and “screaming a lot.” Appellant was

“jumping” and doing “jumping jacks”; appellant “was bleeding but he was

completely acting really crazy.” Quinonez could see that appellant was hurt, but it

did not seem to phase him.

3. Defendant’s testimony: Self Defense

Appellant testified that, on November 24, 2015, he lived in the same

apartment complex as Dyess. At approximately 7:00 p.m., appellant was walking

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around the apartment complex when he was “clipped by a van” on his shoulder, and

the van “drove off.” Appellant described this incident as “tragic” because he had

been struck by a car four months earlier. Appellant “stumbled around” and fell

down. A “red kind of boxcar” drove past, and appellant thought “that car may have

witnessed what happened.” After the red car parked, appellant stopped behind the

car and was “going to go up and say, did you see anything?” but appellant “did not

interact with them.”

Appellant saw the van that hit him double-parked about “100 feet to 150 feet

away,” and he “jumped up and down again” to “try to get their attention while

saying, hey, you hit me.” However, “[n]obody appeared to react in – in any way

that would be conducive to somebody who had just stumbled around in the middle

of a parking lot.” When it did not appear “that anybody was responding,” appellant

“ran over to the van.” Appellant first “knocked on the back of the window because

it was dark and [he] didn’t want to scare anyone” and then “walked over to the side”

and knocked on the side window. The van’s “windows were completely blacked

out,” and appellant could not tell if anyone was in the driver’s seat, yet appellant

testified he could see “a shadow that [was] leaning over.” Appellant’s “first instinct

[was] this guy is probably a drunk driver.” Appellant “slapped [his] hands together

one more time to see if [he] could get his attention,” but there was “no reaction,” so

appellant attempted to open the door, which was locked.

–7–
Appellant testified the “door swung open,” and a “six-foot-two giant stepped

out with a knife saying this is not your vehicle, sir.” Appellant spoke words in

Korean that meant, “I’m so sorry. Please forgive me.” Dyess “became aggressive

with the knife,” and appellant and Dyess “tangled up” in a standing position. At

some point in the ensuing fight, Dyess dragged appellant to the ground. Appellant

received, “[b]etween stabbing and slashing,” seventeen stab wounds: no wounds on

the “front of [his] trunk,” but stab wounds on his back, elbow, cheek, and neck. After

falling to the ground, appellant “restrained” the knife and “clearly said stop.” A

“very large gentleman was standing right above” appellant and Dyess, and appellant

“was so thankful that someone had come to stop the fight;” however, both the very

large gentleman and Dyess “continued to assault” appellant. Dyess “stabbed

[appellant] and the other gentleman was attempting to restrain” appellant. Appellant

then “clawed [Dyess’] eye in self-defense as I was suffocating to death.” Appellant

was able to run away “for about five seconds before passing out from blood loss.”

After he collapsed, appellant did not remember anything that happened except

“[m]aking [his] peace with God.”

On cross-examination, appellant testified he was diagnosed as bipolar in 2012

and takes a mood management stabilizer to treat his condition. At times, appellant

self-medicated with marijuana for “cancer treatment,” and he had smoked marijuana

on the night of the assault. In response to questioning, appellant testified Dyess “did

say a lot about Satan when he was stabbing me” and called appellant “a servant of

–8–
Satan.” Appellant admitted he “locked up with” Dyess, one of appellant’s hands

was behind Dyess’ neck, and appellant threw Dyess to the ground “[u]sing his

forward movement towards” appellant. Appellant testified that, after he was

released from the hospital where his wounds suffered in the assault were treated, his

mother “forced” him to go to Green Oaks “because [he] was talking crazy.” At

Green Oaks, appellant stated he was “[u]nder the influence of the trazodone, Latuda,

and plenty of opiates from pain medication and benzodiazepine.” Appellant, when

asked if it was his testimony that “that those other medications made [him] make a

false admission as to the attack on Mr. Dyess,” responded “I don’t think a rational

person would discuss a case as critical as this in a mental hospital.” In response to

the question “[y]ou admitted on more than one occasion, didn’t you, that you

committed this offense to the doctors and nurses at Green Oaks, didn’t you,” he

responded that he did not remember his time at Green Oaks. At the conclusion of

the evidence, the jury convicted appellant of injury to an elderly individual and found

appellant used or exhibited a deadly weapon, his hand and fingers, during the

commission of the offense. This appeal followed.

ANALYSIS

1. Legal Sufficiency Challenge

We first address appellant’s third issue in which he argues the evidence is

legally insufficient to support the jury’s verdict of guilty to the charged offense of

injury to an elderly individual. We do so because, if this issue is sustained, acquittal

–9–
on the underlying offense is required. See Burks v. United States, 437 U.S. 1, 18

(1978) (“Since . . . the Double Jeopardy Clause precludes a second trial once a

reviewing court has found evidence legally insufficient, the only ‘just’ remedy

available for that court is the direction of a judgment of acquittal.”); Winfrey v. State,

393 S.W.3d 763, 774 (Tex. Crim. App. 2013) (after concluding evidence was

insufficient, court reversed judgment of the court of appeals, rendered judgment of

acquittal, and cited Burks as requiring the remedy of appellate acquittal on grounds

of evidentiary sufficiency); Tuazon v. State, 661 S.W.3d 178, 181 (Tex. App.—

Dallas 2023, no pet.).

When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational trier of

fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d

893, 899 (Tex. Crim. App. 2010) (plurality op.).

The factfinder is the sole judge of witness credibility and the weight to be

given testimony. See Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021).

We may not re-evaluate the weight and credibility of the evidence or substitute our

judgment for that of the factfinder. Bohannan v. State, 546 S.W.3d 166, 178 (Tex.

Crim. App. 2017). “When the record supports conflicting inferences, we presume

that the factfinder resolved the conflicts in favor of the verdict, and we defer to that

determination.” Murray v. State, 457 S.W.3d 446, 448–49 (Tex. Crim. App. 2015).

–10–
Appellant complains the jury’s verdict is “not legally sufficient based on the

law and evidence to support its conviction” of appellant for the charged offense of

injury to an elderly individual.” Appellant bases this complaint on the fact that,

although the “Term Definitions” section of the charge defined “Elderly Individual”

as “a person 65 years of age or older,” the “Application of Law to the Facts” section

omitted this element of the offense as follows:

If you find from the evidence beyond a reasonable doubt that on or
about the 24th day of November, 2015, in Collin County, Texas, the
defendant SHAWNE FORREST, intentionally or knowingly, caused
serious bodily injury to Landi Dyess by gouging Landi Dyess’ eye with
defendant’s hand and finger, then you will find the defendant guilty as
charged.

Appellant “does not dispute that testimony was presented from Landi Dyess at trial

regarding his date of birth and age at the time of the offense”—sixty-seven years

old.

We measure the evidence by the elements of the offense as defined by the

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997). This standard recognizes the trier of fact as the sole judge of the weight

and credibility of the evidence after drawing reasonable inferences from the

evidence, and on review, we determine whether the necessary inferences made by

the trier of fact are reasonable, based upon the cumulative force of all of the

evidence. Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011).

The jury charge defined “Elderly individual” as a “person 65 years of age or

older.” The hypothetically correct jury charge in this case would have included in
–11–
the application paragraph the element that Dyess was sixty-five years old or older at

the time of the offense. See Malik, 953 S.W.2d at 240. Measuring the evidence by

the elements of this hypothetically correct jury charge, we conclude the evidence

was sufficient to show Dyess was an “elderly individual” sixty-five years old or

older at the time of the offense. See id.

Appellant next argues that the evidence was insufficient to support his

conviction because “the record clearly favors” his version of the incident, and the

evidence showed his conduct was justified as a means of self-defense.

The charge included the following self-defense instruction on “Justification –

Self Defense”:

If you have found the defendant guilty of Injury to an, Elderly
Individual, you will next consider whether the offense was committed
in self-defense.

A person is justified in using force against another when and to the
degree, he reasonably believes the force is immediately necessary to
protect himself against the other’s use or attempted use of unlawful
force.

The use of force against another is not justified in response to verbal
provocation alone.

“Reasonable belief” means a belief that would be held by an ordinary
and prudent person in the same circumstances as the defendant.

“Unlawful” means criminal or tortious or both and includes what would
be criminal or tortious but for a defense not amounting to justification
or privilege.

A person who has a right to be present at the location where the force
is used, who has not provoked the person against whom the force is
used, and who is not engaged in criminal activity at the time the force
is used is not required to retreat before using force.
–12–
In determining whether an actor who has a right to be present at the
location, who had not provoked the person against whom the force was
used, and who was not engaged in criminal activity at the time,
reasonably believed that the use of force was necessary, you may not
consider whether the actor failed to retreat.

Therefore, if you find from the evidence beyond a reasonable doubt that
the defendant, SHAWNE FORREST, is guilty of Injury to an Elderly
Individual, but you further find, or have a reasonable doubt thereof, that
the defendant reasonably believed, or is presumed to have reasonably
believed, that force, if any, was immediately necessary to protect
himself against Landi Dyess’ use or attempted use of unlawful force,
then you will find SHAWNE FORREST conduct was justified and find
the defendant “not guilty.”

When it comes to sufficiency review of a self-defense claim, the court of

criminal appeals has stated the following:

[I]n a claim of self-defense or defense of third persons that would
justify a defendant’s use of force against another, the defendant bears
the burden to produce evidence supporting the defense, while the State
bears the burden of persuasion to disprove the raised issues. Zuliani v.
State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804
S.W.2d 910, 913–14 (Tex. Crim. App. 1991). The defendant’s burden
of production requires him to adduce some evidence that would support
a rational finding in his favor on the defensive issue. Krajcovic v. State,
393 S.W.3d 282, 286 (Tex. Crim. App. 2013). By contrast, the State’s
burden of persuasion “is not one that requires the production of
evidence; rather it requires only that the State prove its case beyond a
reasonable doubt.” Zuliani, 97 S.W.3d at 594 (citing Saxton, 804
S.W.2d at 913). Thus, “[i]n resolving the sufficiency of the evidence
issue, we look not to whether the State presented evidence which
refuted appellant’s self-defense testimony, but rather we determine
whether after viewing all the evidence in the light most favorable to the
prosecution, any rational trier of fact would have found the essential
elements of [the offense] beyond a reasonable doubt and also would
have found against appellant on the self-defense issue beyond a
reasonable doubt.” Saxton, 804 S.W.2d at 914.

Braughton v. State, 569 S.W.3d 592, 608–09 (Tex. Crim. App. 2018).

–13–
A person commits injury to an elderly individual if he intentionally,

knowingly, recklessly, or with criminal negligence, by act or intentionally,

knowingly, or recklessly by omission, causes to an elderly individual serious bodily

injury. TEX. PENAL CODE § 22.04(a)(1). However, it is a defense to prosecution that

the conduct in question is justified under Chapter 9 of the penal code. Id. § 9.02. A

person is justified in using force against another when and to the degree the actor

reasonably believes the force is immediately necessary to protect the actor against

the other’s use or attempted use of unlawful force. Id. § 9.31(a). A person is justified

in using deadly force against another if the actor would be justified in using force

against the other under section 9.31 and when and to the degree the actor reasonably

believes the deadly force is immediately necessary to protect the actor against the

other's use or attempted use of unlawful deadly force. Id. § 9.32(a).

Here, appellant and Dyess presented conflicting versions of events. Appellant

cast himself as the victim of a hit-and-run incident with a van and an attack by a

“six-foot-two giant . . . with a knife” who stepped out of his van and “became

aggressive” with the knife. In the altercation that followed, appellant “clawed his

eye in self-defense as I was suffocating to death.” Dyess depicted appellant as the

aggressor and testified that appellant approached his van, his “face was just all

distorted,” and he grabbed the door and said “handicapped man, I’m going to kill

you.” He related appellant then opened the van door and grabbed Dyess by the chin

and the back of the head, “spinning” Dyess’ head. Dyess heard “the bones cracking,”

–14–
“it was painful,” and appellant did this three times before lifting Dyess out of the

van and throwing him to the ground. Appellant jumped on Dyess and put him in a

headlock. Appellant “stuck his finger in [Dyess’] eye” and “just kept doing it.”

Dyess was able to reach into his pocket and get a “little knife” and “stuck it to

[appellant’s] back,” but appellant “didn’t do anything.” When appellant did not react

to repeated stabbing, Dyess started “sewing machine-type stabbing” and called for

help. A neighbor heard Dyess, and the neighbor and “somebody else come running”

and pulled appellant off Dyess. As a result of the incident, Dyess permanently lost

the sight in his right eye.

We presume that the jury resolved the conflicts in favor of the verdict, and we

defer to that determination. Murray, 457 S.W.3d at 448–49. On this record, we

conclude a rational trier of fact would have found the essential elements of injury to

an elderly individual beyond a reasonable doubt and also would have found against

appellant on the self-defense issue beyond a reasonable doubt. Saxton, 804 S.W.2d

at 914. Accordingly, the evidence was sufficient to support appellant’s conviction

and the jury’s rejection of his claim of self-defense. See Jackson, 443 U.S. at 319;

Braughton, 569 S.W.3d at 608–09. We overrule appellant’s third issue.

2. Voir Dire Statements

In his first issue, appellant argues the trial court made improper statements

during voir dire that “violated the presumption of innocence and impermissibly

created a burden to the defense.” Specifically, appellant complains of the trial

–15–
court’s statement that “the jury’s role in trial is to decide which party, the State or

the defense, is right.” In his brief, appellant makes the following argument:

In this case, the court stated to the venire panel that the trial is a contest
between both sides, and the jury’s role is to find out which side is right.
This statement is clearly erroneous. It denied Appellant his Due
Process right to a fair trial in that a criminal defendant is presumed
innocent and does not carry the burden of proof. A criminal trial is not
a contest between the State and the Defense. The court essentially told
the venire panel that a criminal trial is a civil trial. Rather, the trial court
should have stated that Due Process mandates that a criminal defendant
is presumed innocent at trial, and the State carries the burden of proof
to prove all the elements of the charged offense beyond a reasonable
doubt.

We note that the word “contest” does not appear in the reporter’s record of voir dire;

therefore, appellant’s contention that “the court stated to the venire panel that the

trial is a contest between both sides” is a misstatement of what was said. It is true

that the trial court, as quoted previously in this opinion, stated that “[w]e need 12

people to make that decision as to which side has it right.” However, this statement,

taken in context, albeit ill-phrased, was made in a discussion of the jury’s function

in making a “decision about what happened on a particular day.” We read these

comments by the trial court as referring to the jury’s role as factfinder, not to the

jury’s ultimate determination of whether a defendant is guilty or not guilty. Again,

the jury, as factfinder, is the sole judge of witness credibility and the weight to be

given testimony. See Martin, 635 S.W.3d at 679. Thus, the trial court was correct

in stating it is the jury’s role to determine “which side has it right” in determining

“what happened on a particular day.” See id.

–16–
It is also true that the trial court’s complained-of comments at this point in

voir dire did not reference the State’s burden of proof beyond a reasonable doubt or

the presumption of innocence applicable to appellant. We surmise this is because

the trial court was not yet addressing the issues of the burden of proof and the

presumption of innocence. Elsewhere during the trial court’s opening remarks, the

record reflects that the trial court stated the following:

Okay. So how many of y’all ever heard of the presumption of
innocence? Right. Everybody should raise your hands. Civics class.
Something -- so the presumption of innocence is in the Constitution.
Again, it’s a rule that we follow that says anybody is presumed innocent
until they have been found guilty, right? So as -- everybody in this
courtroom will be y’all -- have heard zero evidence about this case. So
if I asked you whether or not you could find somebody guilty, the
answer is no because you haven’t heard any evidence. And so the
answer is, no, I can’t find that person guilty. What’s the verdict? Not
guilty. That is the presumption of innocence.

And, again, this rule that we all know people fought and bled for, right?
Died for. We have this rule that people sometimes have a -- again, just
kind of a misunderstanding as to how it’s applied or how we work that
situation.

So, again, right now I can tell you the State of Texas, the prosecutors
are sitting in here, the defense attorneys, the judge, everybody, that is
the right answer. There is no question about that. It is not guilty. That
is a -- that is the right answer because you haven’t heard the evidence.

Now, what happens in a trial is you do hear evidence. And when you
become convinced that somebody is, in fact, guilty, that’s when you
make that decision, after you’ve heard all of the evidence and you have
now become convinced. And what’s the phrase we use? Beyond?

(Venire panel answers simultaneously.)

THE COURT: Reasonable doubt. Somebody said “shadow.” Who said
shadow? You who watches TV? So that’s somebody there.

–17–
VENIREPERSON: Just me. I watch way too much TV.

THE COURT: Way too much TV. Beyond a shadow of a doubt is not
a thing. Okay? It’s beyond a reasonable doubt. And so the reason I
point that out is because there has to be reasonable doubt.

“Only when a trial court’s comments during voir dire are reasonably

calculated to benefit the State or prejudice the defendant’s rights will reversible error

occur.” Gardner v. State, 733 S.W.2d 195, 210 (Tex. Crim. App. 1987); Tuazon,

661 S.W.3d at 193. Here, when the trial court’s introductory statements during voir

dire are viewed in their entirety, the record shows that the trial court’s remarks at the

beginning of voir dire did address the presumption of innocence and the beyond-a-

reasonable-doubt standard, to which there is no objection on appeal. Under these

circumstances, we conclude the trial court’s remarks during voir dire did not

constitute reversible error.3 We overrule appellant’s first issue.

3. Evidentiary Ruling to Exclude Evidence

In his second issue, appellant argues the trial court erred in denying him the

opportunity to offer video recorded statements of a deceased witness.

3
Presumably because appellant did not object to the trial court’s remarks concerning “which side has
it right,” appellant argues at length that the complained-of remarks constitute fundamental error affecting
appellant’s substantial rights and a preservation of error analysis under rule 33.1 of the rules of appellate
procedure does not apply. See Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). In
circumstances not present here, but to which appellant analogizes his claims, certain waivable-only claims
may be argued for the first time on appeal and are not subject to a harm analysis. See Tuazon, 661 S.W.3d
at 186–94 (addressing violation of due process right not to have the trial court define reasonable doubt in a
manner that shifted the State’s burden of proof). We have addressed appellant’s first issue in the interests
of justice. Because we conclude the trial court did not err in its statements during voir dire, we do not
further address appellant’s characterization of the trial court’s statements or assertion of legal principles
that do not apply under the facts and circumstances of this case.
–18–
In order to preserve error regarding a trial court's decision to exclude evidence,

the complaining party must comply with Rule of Evidence 103 by making an “offer

of proof” which sets forth the substance of the proffered evidence. TEX. R. EVID.

103(a)(2); Mays v. State, 285 S.W.3d 884, 889–90 (Tex. Crim. App. 2009). Rule

103(a) provides: “A party may claim error in a ruling to admit or exclude evidence

only if the error affects a substantial right of the party and: (1) if the ruling admits

evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states

the specific ground, unless it was apparent from the context; or (2) if the ruling

excludes evidence, a party informs the court of its substance by an offer of proof,

unless the substance was apparent from the context.” TEX. R. EVID. 103(a). The

offer of proof may consist of a concise statement by counsel, or it may be in question-

and-answer form. Mays, 285 S.W.3d at 889 (citing Warner v. State, 969 S.W.2d 1,

2 (Tex. Crim. App. 1998)). If in the form of a statement, the proffer “must include

a reasonably specific summary of the evidence offered and must state the relevance

of the evidence unless the relevance is apparent, so that the court can determine

whether the evidence is relevant and admissible.” Mays, 285 S.W.3d at 890 (quoting

Warner, 969 S.W.2d at 2). The primary purpose of an offer of proof is to enable an

appellate court to determine whether the exclusion was erroneous and harmful. Id.

A secondary purpose is to permit the trial judge to reconsider his ruling in light of

the actual evidence. Id.

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Here, in a discussion outside the presence of the jury, the trial court noted that

the State objected because the State anticipated that the defense was going to try to

lay the foundation for the admissibility of a video involving a witness that was

deceased. The State objected under rule of evidence 804(b)(1)(B) that:

in order for something to be offered in a criminal case it must, number
one, be given as a witness at a trial or hearing of the current or a
different proceeding. And is now offered against a party who had
opportunity and similar motive to develop it by direct, cross-
examination, or redirect, or was taken in a deposition under and is now
offered in accordance with Chapter 39 of the Code of Criminal
Procedure.

Based on 804(b)(1)(B) none of those things have happened in this case.
The Defense is merely trying to get in a recorded statement that was
made -- an officer took of a witness that was there was no opportunity
for cross-examination, no redirect, no recross, nothing of that nature,
there’s no actual -- there was no hearing, there was no court proceeding
that this was done in, and there was no deposition of this witness that
was ever taken.

The law has to mean something and under what the Defense is trying
to do, anyone who could meet any of the things for being unavailable,
we would just offer those in willy-nilly without meeting any of these
requirements. Because those requirements are not met under
804(b)(1)(B), the video they are trying to admit is inadmissible.

The defense replied that the witness “appeared on every single witness list

that the State has provided over the last seven years of this trial.” Defense counsel

stated that the defense would “waive the fact that we have not had an opportunity to

talk to this person, whereas, the State likely has since it’s -- they are included on the

State’s witness lists and they likely spoke with them in preparation for one of the

several trial settings that have occurred over the last several years.” Defense counsel

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argued that the “subparts of 804(1)(b)(1) [sic] are not applicable to this very specific

set of facts” where the witness died suddenly and there was no opportunity to comply

with rule 804. The trial court and defense counsel continued a brief discussion of

the admissibility of the video recording, which the trial court ultimately ruled was

inadmissible. However, defense counsel did not make an offer of proof of the

contents of the video other than to state it contained “witness statements.” Under

these circumstances, we conclude appellant failed to preserve this issue for our

review. See TEX. R. EVID. 103(a)(2); Mays, 285 S.W.3d at 889–90. We overrule

appellant’s second issue.

We affirm the trial court’s judgment.

/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)

221209F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

SHAWNE FORREST, Appellant On Appeal from the 366th Judicial
District Court, Collin County, Texas
No. 05-22-01209-CR V. Trial Court Cause No. 366-83400-
2017.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice
Goldstein. Justices Carlyle and
Breedlove participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered August 13, 2024

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