Opinion
No. 14-01-01152-CR.
Memorandum Opinion Filed March 13, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause No. 878,482. AFFIRMED.
Before Justices YATES, ANDERSON, and FROST.
MEMORANDUM OPINION
Appellant, George Louis Weber, appeals his felony conviction for driving while intoxicated. See TEX. PENAL. CODE ANN. §§ 49.04, 49.09(b) (Vernon Supp. 2003). In three points of error, appellant claims (1) the trial court improperly commented on the weight of the evidence during voir dire, (2) appellant was denied effective assistance of counsel during the time for filing a motion for new trial, and (3) his trial counsel was ineffective during the punishment phase of the trial. We affirm. Appellant was charged with the offense of driving while intoxicated ("DWI"). The indictment further alleged appellant had two previous DWI convictions. The jury found appellant guilty of felony DWI and sentenced him to eight years' confinement in the Institutional Division of the Texas Department of Criminal Justice.
Statements During Voir Dire
In his first point of error, appellant claims the trial court erred by commenting on the weight of the evidence during voir dire. During the court's portion of the voir dire, the court informed the venire that the indictment alleged that appellant had two previous DWI convictions. Later, the following exchange occurred between the court and one of the venire members:VENIREPERSON:. . . . [Y]ou state that Mr. Weber had already been convicted of two DWIs, then the probability of him being guilty on the third one goes up, okay?. . . .
THE COURT: Thank you very much. And that is a very good point you made and I must now tell you, and I will instruct you in the written charge, the fact that the defendant has previously been convicted of driving while intoxicated is no evidence at all that he was intoxicated on the occasion in question, okay?
And of course you have to — that is a given. Just because — I mean, let's say I had been convicted of theft before and I was charged with theft again. Just because I was previously convicted of theft wouldn't be any evidence that I committed theft this time. Same principle applies in this.Appellant complains that the court erroneously stated as a "fact" that appellant had two previous DWI convictions, when that is an element of the offense of felony DWI and thus must be proven by the State. See TEX. PENAL. CODE ANN. § 49.09(b). Appellant admits, however, that he did not object to the court's statements at trial. As a general rule, failure to object to the trial court's comments during voir dire waives any error. See TEX. R. APP. P. 33.1; Fuentes v. State, 991 S.W.2d 267, 276 (Tex.Crim.App. 1999). Appellant claims he was not required to object in this case, citing Blue v. State, 41 S.W.3d 129 (Tex.Crim. App. 2000). Because we hold that Blue does not apply to our facts, we disagree. In Blue, the Court of Criminal Appeals reversed a conviction based on comments made by the trial court during voir dire even though the appellant failed to object at trial. Specifically, the court was apologizing to a group of prospective jurors for their long wait and stated, among other things, the following:
[T]he attorney has been speaking to his client about what does he want to do. . . . Frankly, an offer has been made by the State or do I go to trial. And he has been back and forth so I finally told him I had enough of that, we are going to trial. . . . Frankly, obviously, I prefer the defendant to plead because it gives us more time to get things done and I'm sure not going to come out here and sit. . . .41 S.W.3d at 130. A majority of the court concluded that the trial court's comments constituted reversible error despite appellant's failure to object at trial, although the judges did not agree as to the reason why. Four of the court's judges concluded that the trial court's statements tainted the appellant's presumption of innocence and thus constituted fundamental error that required no objection. See id. at 132 (plurality opinion). Judge Keasler wrote a concurring opinion in which he agreed that the appellant did not waive his complaint; however, he reasoned that these statements showed partiality and thus violated the appellant's absolute right to an impartial judge. See id. at 139 (Keasler, J., concurring). Under either analysis, the trial court's statements in this case do not rise to the level of the comments held to constitute nonwaivable error in Blue. The objectionable statements in Blue touched on the core issue of the appellant's guilt or innocence for the underlying offense. By suggesting he would "prefer the defendant to plead," the trial court may have cast substantial doubts in the jurors' minds about the appellant's presumed innocence or the court's views on the appellant's guilt. Here, at worst, the trial court's comments reduced the State's burden as to a single, undisputed element of the charged offense. We cannot say that the court's statement as fact (rather than as an allegation) that appellant had previously been convicted of driving while intoxicated tainted the presumption of appellant's innocence for the present offense or in any way suggested the trial judge was not impartial. Thus, we conclude Blue does not apply and the trial court's error, if any, was not fundamental. Because appellant did not object to the court's statements during voir dire, he waived his right to complain on appeal. We overrule appellant's first point of error.