John Anthony Pree v. State ( 2007 )

  Opinion issued April 12, 2007  

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-05-01179-CR

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JOHN ANTHONY PREE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 40,460

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MEMORANDUM OPINION

A jury convicted appellant, John Anthony Pree, of aggravated robbery and sentenced him to 40 years' confinement. Tex. Pen. Code Ann. § 29.03 (Vernon 2003). On appeal, appellant complains that (1) the trial court erred in extensively examining the venire panel and (2) the prosecutor erred in expressing his personal belief during voir dire that appellant was guilty. Neither of these complaints was asserted at trial. We hold that appellant has, therefore, waived each of his complaints on appeal, and we affirm the judgment of the trial court.Trial Court's Voir Dire

In his first point of error, appellant complains that, under article 35.17(2) of the Texas Code of Criminal Procedure, it was improper for the trial court to extensively examine the members of the venire panel. Tex. Code Crim. Proc. Ann. art. 35.17(2) (Vernon 2006). Specifically, appellant complains that the trial court improperly questioned the panel on the principles of bias and prejudice, burden of proof, reasonable doubt, presumption of innocence, Fifth Amendment privilege, and range of punishment. Relying further on the authority of article 35.17(2), appellant asserts that the trial court may inquire into these areas only in capital cases. ⁽¹⁾ Appellant, however, has waived this complaint.

To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a). It is well-established that almost every right may be waived by failing to object. See Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999) (waiver of complaint about trial court's explanation of reasonable doubt standard during voir dire where appellant failed to renew objection when explanation was later repeated by the trial court); see also Moore v. State, 907 S.W.2d 918, 923 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd) (waiver of complaint about trial court's comment on the weight of the evidence during voir dire). Absent fundamental error, we cannot reverse on grounds of which the trial court was not made aware. See Moore, 907 S.W.2d at 922 (objection required because right to be free of judge's comment is not fundamental).

Here, as previously stated, the trial court instructed and examined the venire on the principles of bias and prejudice, burden of proof, return of indictment by grand jury, presumption of innocence, credibility of witnesses, Fifth Amendment privileges, and range of punishment. The trial court's exchange with the venire spans approximately 15 pages in the record. Absent from these pages is any objection from appellant to either the trial court's instructions or questions on these issues. The error complained of is not fundamental, and, therefore, an objection was required to preserve the issue for appellate review. See id. Because he failed to object, appellant has waived this complaint.

Accordingly, we overrule appellant's first point of error.

Prosecutor's Voir Dire

In his second point of error, appellant complains that it was improper for the prosecutor to state his personal belief during voir dire that appellant was guilty. Appellant, however, has also waived this complaint.

During voir dire, the following exchange occurred between the prosecutor and a venireperson.

VENIREPERSON NO. 19: This is going to be really unfair, but as a prosecutor, is your mind already made up before you hear the evidence?

[PROSECUTOR]: What do you mean, is my mind made up, sir?

VENIREPERSON NO. 19: Guilty or innocent, is your mind - are you convinced he's guilty before the trial?

[PROSECUTOR]: Sir, of course, I am, okay? But I'm not the one that matters here. All right?

Appellant concedes that he failed to object to the prosecutor's statements and argues that, because the harm resulting from the prosecutor's comments was incurable, an objection was not required. We disagree. "When an appellant complains about an improper remark by the prosecutor during voir dire, appellant must object when the remark is made." Espinosa v. State, 194 S.W.3d 703, 708 (Tex. App.--Houston [14th Dist.] 2006, no pet.). Because an objection was required to preserve any error for review, appellant has waived this complaint on appeal. See Tex. R. App. P. 33.1(a).

Accordingly, we overrule appellant's second point of error.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Alcala, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).

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