Michael L. Thompson v. State ( 2000 )

Michael L. Thompson v. The State of Texas

    IN THE

TENTH COURT OF APPEALS

No. 10-99-202-CR

     MICHAEL L. THOMPSON,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 33133

O P I N I O N

            The jury convicted Michael Lee Thompson of three counts of aggravated sexual assault (counts one, two and three), four counts of indecency with a child by contact (counts four, five, seven and eight), and one count of indecency with a child by exposure (count six). The jury sentenced him to a term of life imprisonment on each count of aggravated sexual assault, and fifty years’ imprisonment on each of the remaining counts. He claims in thirteen issues that the trial court erred by: erroneously overruling his challenges for cause against twelve veniremen who stated an unequivocal bias against the minimum punishments for the offenses charged (twelve issues); and the trial court improperly commented on the evidence when admonishing the jury during deliberations.

        An erroneously denied challenge for cause by the defense must be preserved for appeal by showing that the defendant: (1) exhausted all peremptory challenges, (2) asked for and was refused additional peremptory strikes, and (3) was then forced to take an identified objectionable juror whom appellant would not otherwise have accepted had the court granted his challenge for cause. See Burks v. State, 876 S.W.2d 877, 893 (Tex. Crim. App. 1994); Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993); Jones v. State, 833 S.W.2d 118 (Tex. Crim. App. 1993). The absence of any one of the elements will not preserve error on appeal.

       In this case, the record clearly reflects that defense counsel made an initial challenge for cause to twelve veniremen. The state rehabilitated the veniremen and the court overruled Thompson’s challenges for cause. The record is completely devoid of any effort by defense counsel to preserve the overruled challenges for cause for appeal. Therefore, we conclude that Thompson did not preserve error on the overruled challenges for cause. Accordingly, we overrule issues one through twelve.

       Thompson claims the trial court erred when it commented on the sentence delivered by the jury on count six. The State called it to the attention of the court that the jury answered two enhancement paragraphs “yes.” The jury answered with a sentence of twenty years imprisonment. The judge admonished the jury that the sentence assessed was not within the range of punishment for count six and sent the jury back to deliberate. The jury then returned a verdict for fifty years’ imprisonment on count six. To preserve this error for appeal, the complaining party must make a timely and specific objection. Harvard v. State, 800 S.W.2d 195, 211 (Tex. Crim. App. 1989) (citing Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977)). Thompson made no objection to the judge’s comments and therefore did not preserve his error for appeal. Accordingly, we overrule issue thirteen.

       We affirm the trial court’s judgment.

                                                                   REX D. DAVIS

                                                                   Chief Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed October 11, 2000

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[CV06]