Opinion
No. 14-08-00433-CR
Opinion filed September 10, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 177th District Court Harris County, Texas, Trial Court Cause No. 1129234.
Panel consists of Chief Justice HEDGES and Justices YATES and FROST.
MEMORANDUM OPINION
Appellant, Ralph Arnold Jackson, appeals from his felony theft conviction for which he was sentenced to 15 years in prison. In his sole issue, appellant contends that the trial court committed fundamental error by making an improper comment on the weight of the evidence during voir dire. We affirm.
BACKGROUND
Appellant was charged with theft of property, namely cash money, under $1,500. The theft charge was elevated from a misdemeanor to felony third-offender theft with the inclusion of two enhancement paragraphs alleging that appellant had been previously convicted of felony theft on July 8, 2005 in the 351st District Court in cause number 1005119, and on June 3, 2003 in the 182nd District Court in cause number 930468. A jury subsequently found appellant guilty of felony third-offender theft and assessed punishment at 15 years in prison. In his sole issue, appellant contends that during voir dire, the trial court explained the jury charge in a way that (1) lessened the State's burden of proof at trial, (2) tainted the appellant's constitutional and statutory right to be presumed innocent, and (3) resulted in an unfair and partial trial.TRIAL COURT'S COMMENT
During voir dire, the trial court made the following statements:. . . Let me talk about the case that he's charged with. . . . This is called a theft, third offender, case. And what it means is, I'm sure y'all know with a DWI, if you get a DWI the first time, it's a misdemeanor. The second time, it's a misdemeanor. Third time, you're coming to felony court. Because you have been convicted twice before, it brings you to felony court.
It's the same way with thefts. The legislature has decided that if the State can prove you have been convicted two times before of a theft, even if it's, like, for 5 cents, even if it's for $20, if you have been convicted two times before and then commit another theft, you're coming to felony court, not misdemeanor court.The trial court further explained that:
. . . [T]he State has to prove to you beyond a reasonable doubt, one, that the new theft happened so you're convinced that the defendant is guilty of the new theft. And, two and three, that he's been convicted two times before. They have to prove that to you beyond a reasonable doubt.
. . .
. . . [T]hey have to go on to prove to you that before this offense happened, on July 8th, 2005, in Cause No. 1005119 in the 351st of Harris County, Texas, the defendant was convicted of the felony offense of theft.
And then they also have to prove that in Cause No. 930468 in the 182nd District Court of Harris County, Texas, the defendant was convicted of the felony offense of theft.
That's what they have to prove to you. If they miss anything in the indictment, it's a not guilty. . . . [T]hey have to prove that he has these two prior convictions and that he is the one that is convicted in these cause numbers.Appellant complains of the above bolded statements, "Because you have been convicted twice before, it brings you to felony court," and "[I]f you have been convicted two times before and then commit another theft, you're coming to felony court, not misdemeanor court." Appellant contends that these comments equate to an affirmative assertion by the trial court that appellant indeed had been twice previously convicted. Appellant argues that because it is the State's burden to prove the two prior convictions alleged in the underlying indictment, the trial court's comments regarding prior convictions: (1) violated article 38.05 of the Texas Code of Criminal Procedure, which prohibits a judge from commenting on the weight of the evidence or conveying a personal opinion about the case, (2) lessened the State's burden of proof, (3) tainted his constitutional and statutory right to be presumed innocent, and (4) resulted in an unfair and partial trial. In response, the State contends that appellant has waived error by failing to object in the trial court. Appellant acknowledges on appeal that no objection was made below, but contends that this issue is preserved for review because the trial court's comments constitute fundamental error. Without a contemporaneous objection, a defendant generally waives error, and in that instant, a reviewing court may only review fundamental error. See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001); Ganther v. State, 187 S.W.3d 641, 650 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd); Tex. R. Evid. 103(d). Because appellant failed to object at trial, the comments must rise to the level of fundamental error to be preserved for appeal. To support his fundamental-error argument, appellant relies primarily on Blue v. State. 41 S.W.3d 129 (Tex. Crim. App. 2000). In Blue, a plurality of the Court of Criminal Appeals held that the trial court's comments explaining to the jury that the defendant had attempted to enter into a plea bargain with the State and that the trial court would have preferred a guilty plea vitiated the presumption of innocence before the venire, constituting fundamental error and, therefore, requiring no objection. Id. at 132-33. The plurality opinion in Blue is not binding precedent. See Jasper, 61 S.W.3d at 421 (acknowledging Blue as a plurality opinion that the court was not bound to follow). However, even if Blue were binding on this court, the trial court's comments in this case did not rise to such a level as those in Blue. The comments in Blue touched upon the core issue of a defendant's guilt or innocence. See Blue, 41 S.W.3d at 132 ("A juror who hears the judge say that he would have preferred that the defendant plead guilty might assume that the judge knows something about the guilt of the defendant that the juror does not. Surely, no trial judge would want an innocent man to plead guilty, no matter how much delay and expense he might be causing."). In contrast, the trial court in this case properly laid out the manner in which a misdemeanor theft offense was enhanced to a felony third-offender offense and described the State's burden in a felony third-offender case. Taken in context, the trial court explained to the venire that there must be an allegation of two prior theft convictions to charge a defendant with felony third-offender theft. The trial court further explained that appellant was guilty only if the State proved beyond a reasonable doubt that appellant had been previously convicted of the two prior felony thefts alleged in the indictment and proved beyond a reasonable doubt that he had committed the underlying theft offense. These statements neither tainted appellant's presumption of innocence nor compromised the impartiality of the jury. See Jasper, 61 S.W.3d at 421 (holding that, even under the reasoning of the Blue plurality, the trial judge's comments would not rise to the level of fundamental error); Ganther, 187 S.W.3d at 650-51 (concluding that, even if court of appeals were bound by the Blue plurality, the trial judge's comments during voir dire did not rise to the level of tainting the presumption of innocence or vitiating the impartiality of the jury). We reject appellant's characterization of the trial court's comments and conclude from our review of the record that none of the court's complained-of comments rise to the level of fundamental error obviating the need to object in the trial court. See Jasper, 61 S.W.3d at 421; Ganther, 187 S.W.3d at 650-51. Because appellant did not object to the trial court's comment and because the alleged error was not fundamental error, appellant's complaint is forfeited. See Jasper, 61 S.W.3d at 421. We overrule appellant's sole issue and affirm the trial court's judgment.