COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-450-CR
DEREK SANFORD PHELPS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Derek Sanford Phelps appeals his conviction for indecency with
a child by exposure. In his sole point, he argues that he was deprived of a fair
and impartial tribunal at the punishment hearing because the trial judge failed
to consider the full range of punishment by improperly holding appellant’s
failure to testify during the punishment phase against him and then assessing
punishment near the top of the punishment range. We affirm.
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… See T EX. R. A PP. P. 47.4.
Background Facts
On August 31, 2006, a jury convicted appellant of the offense of
indecency with a child by exposure. See T EX. P ENAL C ODE A NN. § 21.11
(Vernon 2003). Although appellant testified during the guilt/innocence phase
of the trial, he did not testify at the punishment hearing. On December 8,
2006, the trial court assessed punishment at eight years’ confinement.
Standard of Review
To preserve a complaint for our review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling if they are not apparent from the context of the
request, objection, or motion. T EX. R. A PP. P. 33.1(a)(1); Mosley v. State, 983
S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.
1070 (1999). Further, the trial court must have ruled on the request, objection,
or motion, either expressly or implicitly, or the complaining party must have
objected to the trial court’s refusal to rule. T EX. R. A PP. P. 33.1(a)(2); Mendez
v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Preservation of error
is a systemic requirement that this court should review on its own motion.
Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007); Jones v. State,
942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997).
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Analysis
After sentencing appellant, the trial judge stated the following:
[The Court]: Any legal reason why I shouldn’t sentence him at
this time?
[Mr. Rannefield]: No, Your Honor.
[The Court]: I’ll sentence you to eight years in this case and
I’ll direct you to the sheriff of this county to
deliver you to the Director for you to serve out
your time. I’ll give you credit for time served.
The interesting thing about this case is that there
were actually two cases, two little girls were
involved in this, which is very serious. And
based upon your view, you have denied it all
along. You still even to the presentence
investigator you have denied that that even
happened. So basically what you’re saying is
that the little girls were lying and that you were
here basically to take care of the mother and
those children.
And putting you on probation and requiring you
to go through all of the various sex offender
treatment programs, it just would not have
worked. The first thing a person has to do is
admit that he did, in fact, commit these offenses
and then it’s opened up for you to address the
situation, follow the rules, and try to turn your
life around. You go in denying it, it never works.
I mean, they can’t even assess you properly
when you go in denying because you have to
take these various tests. So you would not have
been a good candidate for a probation. These
cases themselves are so serious, I just don’t
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think that a probation would have been in order
in this particular case.
All right. That’s going to be [the] order of the
Court.
[Mr. Poe]: Thank you, Your Honor.
Here, appellant did not object to the sentence at trial; therefore, any error
is waived. T EX. R. A PP. P. 33.1(a)(1); Mosley, 983 S.W.2d at 265; Thompson
v. State, 243 S.W.3d 774, 775-76 (Tex. App.—Fort Worth 2007, pet. filed).
Appellant, however, relies on Blue v. State, in which the court of criminal
appeals held that the lack of an objection will not waive a similar error. 41
S.W.3d 129, 132-33 (Tex. Crim. App. 2000) (plurality op.); see T EX. R. E VID.
103(d). In Blue, a majority of the court of criminal appeals–in a plurality and
in concurring opinions–upheld the general rule that error in a trial court’s
comments to a jury is waived absent a timely objection. Blue, 41 S.W.3d at
133 (“This case is highly unique and litigants should not view this holding as
an invitation to appeal without making proper, timely objections.”), 134
(Mansfield, J. concurring) (same), 139 (Keasler, J. concurring) (same); see also
Davenport v. State, No. 02-05-00170-CR, 2006 W L 1653320, at *3 (Tex.
App.—Fort Worth Jun. 15, 2006, pet. ref’d) (mem. op., not designated for
publication). The plurality opinion in Blue went on to hold, however, that in
that particular case the trial court’s comments explaining to the jury that the
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defendant 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 and constituted fundamental error. Blue, 41
S.W.3d at 133; see also Davenport, 2006 WL 1653320, at *3. Such
fundamental error did not require preservation by objection. 2 Blue, 41 S.W.3d
at 133; see also Davenport, 2006 WL 1653320, at *3.
In this case, unlike in Blue, the trial court’s comments did not taint
appellant’s presumption of innocence in front of a jury. In fact, the trial court’s
comments were made during the punishment stage after the jury had found him
guilty and after the trial court had assessed punishment; the jury had already
been dismissed. Cf. Blue, 41 S.W.3d at 133. Because appellant did not object
to his sentence and because the alleged error was not fundamental, appellant
failed to preserve this issue for review. See T EX. R. A PP. P. 33.1(a)(1);
Davenport, 2006 WL 1653320, at *3. Furthermore, the trial court’s comments
show that it was considering statements made by appellant to the presentence
investigation officer, not appellant’s failure to testify at punishment; those
statements related to whether appellant could be rehabilitated or whether he
2
… Because there is no majority opinion in Blue, it is not binding
precedent. See Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex. Crim. App.
1999).
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was a good candidate for probation, which appellant had specifically requested.
Thus, the trial court’s comments did not bear on appellant’s failure to testify at
the punishment hearing or show that appellant was denied an impartial tribunal.
See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). Therefore,
we overrule appellant’s sole point.
Conclusion
Having overruled appellant’s sole issue, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL B: LIVINGSTON, HOLMAN, and GARDNER, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: April 24, 2008
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