Starsky Holmes v. the State of Texas

AFFIRMED and Opinion Filed June 7, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00834-CR

STARSKY HOLMES, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 22-50175-422F

MEMORANDUM OPINION
Before Justices Smith, Miskel, and Breedlove
Opinion by Justice Breedlove
Appellant Starsky Holmes was convicted of aggravated assault with a deadly

weapon after a jury trial and sentenced to 42 years in prison. In three issues, appellant

asserts that the trial court erred by: (1) commenting on appellant’s status as a repeat

offender; (2) permitting the State to inform the venire panel about the punishment

range for repeat offenders; and (3) submitting an incorrect and incomplete jury

instruction on parole law. We affirm the trial court’s judgment.
BACKGROUND1

Ethan Womble openly flirted with Keroneshia Jackson in front of the father

of her children at a party where both were intoxicated. Appellant, a family friend of

Jackson’s, arrived at the party, and the father of Jackson’s children confronted

Jackson about Womble’s flirting. At some point, the men at the party gathered

outside while the women stayed inside. Later, Jackson heard a commotion and went

outside. Jackson saw that the men were in a group with Womble on the side. Jackson

heard from the others that Womble had been making racist comments, and the group

scattered. Jackson went back inside for a while, before returning outdoors. When she

stepped out her front door, Jackson saw appellant run up and hit Womble with a gun.

When appellant struck Womble with the gun, it went off. Womble fell to the ground,

and Jackson believed he had been shot and was dead because of how he fell.

Jackson’s brother took Womble to the hospital where he was treated for a fractured

jaw.

Appellant was indicted for aggravated assault with a deadly weapon and pled

not guilty. He was tried before a jury, which found appellant guilty, and sentenced

to 42 years in prison. This appeal followed.

1
The facts of the case are known to the parties—therefore, we include only those facts necessary for
context. See TEX. R. APP. P. 47.1.
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DISCUSSION

Issue 1: Trial Court Comments During Voir Dire

We first address appellant’s assertion that the trial court erred by commenting

on appellant’s status as a repeat offender. During voir dire, the State informed the

panel that appellant was charged with aggravated assault with a deadly weapon. The

State explained that the charge was a second-degree felony punishable between two

years and twenty years in prison, and that this charge coupled with a prior felony

proven by the State increases the punishment range. Defense counsel requested to

approach the bench and a discussion took place off the record. Following the bench

conference, the trial court provided clarification to the jury regarding why the State

was addressing punishment ranges during voir dire. Appellant argues that during the

judge’s comments, the trial judge implied that appellant was a repeat offender by

instructing the jury that “the range of punishment in this case is anywhere from two

years as the minimum all the way up to 99 years or life” (emphasis added).

When prior convictions are alleged for purposes of enhancement, the

enhancement paragraphs may not be read to the jury until the punishment phase of

the trial. TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(1). Both the State and the

defendant may qualify the jury panel on the punishment range applicable to an

offense which contains enhancement paragraphs. Bevill v. State, 573 S.W.2d 781,

783 (Tex. Crim. App. 1978) (en banc). In so qualifying a jury panel, neither party

may mention the specific allegations contained in the enhancement paragraphs but

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must use only hypothetical terms. See Frausto v. State, 642 S.W.2d 506, 509 (Tex.

Crim. App. [Panel. Op.] 1982).

Appellant never asked the trial court to clarify its statements to the jury or

objected to the court’s statements. See TEX. R. APP. P. 33.1(a) (requiring a timely

request, objection, or motion to preserve a complaint for appellate review).

Appellant does not address whether this type of error can be raised for the first time

on appeal; he only argues that this issue is a “constitutional error,” and that, as such,

it is automatically subject to a harmless error review. The Texas Court of Criminal

Appeals has rejected any common law “fundamental error” exception to the rules of

error preservation based upon harm. See Proenza v. State, 541 S.W.3d 786, 796

(Tex. Crim. App. 2017) (citing Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim.

App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex.

Crim. App. 1997)). Instead, the question of error preservation turns upon the

“nature” of the right allegedly infringed. Id.

Under Marin, there are three categories of rights: (1) absolute systemic

requirements; (2) rights of litigants which must be implemented unless expressly

waived; and (3) rights of litigants which are to be implemented upon request. Id. at

279; see also Jacobs v. State, No. 05-22-00248-CR, 2023 WL 5621672, at *2–3

(Tex. App.—Dallas Aug. 31, 2023, no pet. h.) (mem. op., not designated for

publication) (detailing Marin’s categories and preservation requirements). Only the

first two categories of errors may be raised for the first time on appeal. See Proenza

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v. State, 541 S.W.3d 786, 798 (Tex. Crim. App. 2017) (citing Marin, 851 S.W.2d at

280). In Proenza, the court of criminal appeals concluded that a complaint a trial

judge’s comments to a witness violated Code of Criminal Procedure article 38.05

was “at least” a waivable-only right under Marin and, therefore, may be raised for

the first time on appeal. 541 S.W.3d at 801. We conclude that, because the record

does not reflect that appellant plainly, freely, and intelligently waived his right to the

trial judge’s compliance with article 38.05, his claim has not been forfeited and may

be raised for the first time on appeal. See id.; see also Skinner v. State, No. 05-17-

00153-CR, 2018 WL 3545023, at *3 (Tex. App.—Dallas July 24, 2018, pet. ref’d).

A trial judge must not comment on the evidence in a manner that conveys his

opinion of the case to the jury as “[j]urors are prone to seize with alacrity upon any

conduct or language of the trial judge which they may interpret as shedding light

upon his view of the weight of the evidence, or the merits of the issues involved.”

Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003) (quoting Lagrone v.

State, 209 S.W. 411, 415 (Tex. Crim. App. 1919)). A trial judge improperly

comments on the weight of the evidence if he makes a statement that implies

approval of the State’s argument, indicates disbelief in the defense’s position, or

diminishes the credibility of the defense’s approach to the case. Clark v. State, 878

S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.); Nguyen v. State, 506 S.W.3d

69, 83 (Tex. App.—Texarkana 2016, pet. ref’d). To constitute reversible error in

violation of article 38.05, the comment in question must be such that it is reasonably

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calculated to benefit the State or prejudice the defendant’s rights. Marks v. State,

617 S.W.2d 250, 252 (Tex. Crim. App. [Panel Op.] 1981); see also Clark, 878

S.W.2d at 226.

Appellant relies on Clark v. State to support his contention that the trial court’s

comments were reversible error. Appellant contends the trial court went beyond the

permissible boundary of hypothetically informing the jury on the range of

punishment. We disagree. In Clark, the trial court stated that the allegations in the

enhancement paragraphs meant that the defendant had been previously convicted of

two felony offenses. Clark, 878 S.W.2d at 225. The trial court’s statements were an

improper comment on the evidence’s weight and violated article 38.05 of the code

of criminal procedure. Id. at 226.

The trial court told the jury that “the minimum range of punishment in this

case is anywhere from two years as the minimum all the way up to 99 years or life.”

Taken alone, we agree with appellant that this statement likely extended beyond the

permissible boundary of hypothetically informing the jury on the range of

punishment. However, the context in which this statement was made alleviates the

concerns expressed in Clark: the trial court prefaced its remarks by saying that

“generally we just give the ranges of punishment,” and that “there have been no facts

alleged related to this defendant.” See Frausto, 642 S.W.2d at 509. The trial court

never stated that appellant had been convicted of the offenses alleged in the

enhancement paragraphs. The trial court could qualify the jury panel on the

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punishment range applicable to an offense that is enhanced by previous convictions.

See Bevill, 573 S.W.2d at 783. Because the trial court phrased its comments

hypothetically, we conclude the trial court did not err. We overrule appellant’s first

issue.

Issue 2: State’s Comments During Voir Dire

Having concluded that the trial court did not err in commenting on the range

of possible punishments in appellant’s case, we turn to appellant’s second issue. In

this issue, appellant argues that the trial court erred when it permitted the State to

inform the venire panel about the punishment range for repeat offenders, denying

appellant of an impartial jury. See Frausto, 642 S.W.2d at 509. As with issue one,

appellant did not preserve this issue by timely motion or objection.2 Therefore, the

first question we must answer is whether by failing to properly preserve this issue,

appellant has waived it.

As discussed in more depth above, under Marin, there are three categories of

rights: (1) absolute systemic requirements; (2) rights of litigants which must be

implemented unless expressly waived; and (3) rights of litigants which are to be

implemented upon request. Marin, 851 S.W.2d at 279; see also Jacobs, 2023 WL

2
Appellant’s brief notes that immediately after the allegedly improper comments from the State,
defendant’s counsel requested a bench conference at which, presumably, defendant objected to the State’s
comments. However, the contents of the bench conference are not included in the record, nor was any
objection re-urged once counsel went back on the record. Therefore, we cannot speculate as to the contents
of defense counsel’s objection, if any, and must treat the issue as if it had not been preserved. See TEX. R.
APP. P. 33.1(a).
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5621672, at *2–3. Only the first two categories of errors, may be raised for the first

time on appeal. See Proenza, 541 S.W.3d at 798 (citing Marin, 851 S.W.2d at 280).

Therefore, appellant’s second issue must implicate a “systemic” right or a

“waivable-only” right in order to be raised for the first time on appeal.

Appellant does not cite any cases in which similar voir dire statements were

held to rise to the level of structural or fundamental error. To the contrary, a

defendant’s failure to object to improper voir dire statements has been held to waive

the complaint on appeal. See Beltran v. State, 99 S.W.3d 807, 812 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d); Dowdy v. State, No. 03-01-00571-CR, 2002

WL 1987642, at *2 (Tex. App.—Austin Aug. 30, 2002, no pet.); Campos v. State,

946 S.W.2d 414, 416–18 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (holding

failure to object to improper prosecutorial statement waives error); Jenkins v. State,

870 S.W.2d 626, 629 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d); Draughon

v. State, 831 S.W.2d 331, 336–37 (Tex. Crim. App. 1992); Boyd v. State, 811 S.W.2d

105, 113 (Tex. Crim. App. 1991). Having reviewed the record in its entirety, we do

not believe that the prosecutor’s statement rose to the level of structural or

fundamental error. See Dowdy, 2002 WL 1987642, at *2; Draughon, 831 S.W.2d at

336–37; Boyd, 811 S.W.2d at 113; Jenkins, 870 S.W.2d at 629. Thus, an objection

was necessary to preserve appellant’s complaint on appeal. No such objection having

been raised, appellant has waived his complaint on appeal. TEX. R. APP. P. 33.1(a).

We overrule appellant’s second issue.

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Issue 3: Jury Instruction on Parole Law

We turn to appellant’s final issue. In this issue, appellant argues that the trial

court erred in submitting an incorrect and incomplete jury instruction on parole law.

In reviewing jury-charge error, we first determine whether error exists. Price v.

State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) (citing Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)); Ngo v. State, 175 S.W.3d

738, 743 (Tex. Crim. App. 2005) (internal citations omitted). If we find error, we

must then determine whether the error caused sufficient harm to require reversal.

Ngo, 175 S.W.3d at 743. The standard of review differs depending on whether the

defendant made a timely objection at trial. Jordan v. State, 593 S.W.3d 340, 346

(Tex. Crim. App. 2020) (citing Almanza, 686 S.W.2d at 171). If the error was the

subject of a timely objection, reversal is required if there is some harm to the

defendant as a result of the error. Id. (citing Almanza, 686 S.W.2d at 171); TEX.

CODE CRIM. PROC. ANN. art. 36.19. If no proper objection was made at trial, reversal

is required only if the error is so egregious that the defendant was denied a fair and

impartial trial. Id. It is undisputed that appellant did not make a proper objection in

this case.

The trial court’s charge on punishment states:

Under the law applicable to this case, the defendant, if sentenced to a
term of imprisonment, may earn time off the period of incarceration
imposed through the award of good conduct time. Prison authorities
may award good conduct time to a prisoner who exhibits good
behavior, diligence in carrying out prison work assignments, and

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attempts at rehabilitation. If a prisoner engages in misconduct, prison
authorities may also take away all or part of any good conduct time
earned by the prisoner.

It is also possible that the length of time for which the defendant
will be imprisoned might be reduced by the award of parole.

(emphasis added.). The code of criminal procedure provides:

The length of time for which a defendant is imprisoned may be reduced
by the award of parole.

Under the law applicable in this case, the defendant, if sentenced to a
term of imprisonment, may earn early parole eligibility through the
award of good conduct time. Prison authorities may award good
conduct time to a prisoner who exhibits good behavior, diligence in
carrying out prison work assignments, and attempts at rehabilitation. If
a prisoner engages in misconduct, prison authorities may also take away
all or part of any good conduct time earned by the prisoner.
...
It cannot accurately be predicted how the parole law and good
conduct time might be applied to this defendant if sentenced to a
term of imprisonment, because the application of these laws will
depend on decisions made by prison and parole authorities.

TEX. CODE CRIM. PROC. ANN. art. 37.07 (emphasis added).

Appellant asserts the charge error had the potential of influencing the jury to

assess a greater sentence, requiring reversal. We disagree.

At punishment, the State admitted a penitentiary packet from the Texas

Department of Criminal Justice that contained judgments from appellant’s prior

convictions for aggravated assault with a deadly weapon, unlawful possession of a

firearm by a felon, and evading arrest and detention with a vehicle. The State’s

fingerprint expert testified that the fingerprints and personal information for each

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prior conviction matched those of appellants. The State also put Womble on the

stand who testified to the pain and fear he experienced during the altercation as well

as while watching the recording of the incident for the first time. He also testified to

the long-term recovery process, medical procedures, and the long-term impact of his

injuries on his body, mental health, and personal life. The State presented no other

evidence at punishment, but the defense called appellant’s mother to testify. She

testified about their relationship, appellant’s relationship with his adult son, and

appellant’s mental health issues.

The punishment range for the offense, as enhanced, was twenty-five to ninety-

nine years. After considering the evidence, the jury assessed punishment of forty-

two years’ confinement, on the lower end of the punishment range.

Upon reviewing the entire record and considering the relevant factors, we

conclude nothing in the record shows the jury charge error affected the very basis of

the case, deprived appellant of a valuable right, or vitally affected a defensive theory.

The record does not show the charge error caused egregious harm; any purported

harm is only theoretical. We overrule appellant’s third issue.

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CONCLUSION

We affirm the trial court’s judgment.

/Maricela Breedlove/
MARICELA BREEDLOVE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)

230834F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

STARSKY HOLMES, Appellant On Appeal from the 422nd Judicial
District Court, Kaufman County,
No. 05-23-00834-CR V. Texas
Trial Court Cause No. 22-50175-422-
THE STATE OF TEXAS, Appellee F.
Opinion delivered by Justice
Breedlove. Justices Smith and Miskel
participating.

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

Judgment entered June 7, 2024

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