Affirmed and Memorandum Opinion filed March 13, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-01-01152-CR
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GEORGE LOUIS WEBER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 878,482
M E M O R A N D U M O P I N I O N
Appellant, George Louis Weber, appeals his felony conviction for driving while intoxicated. See Tex. Pen. 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 (ADWI@). 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 B that is a given. Just because B 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 Afact@ 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. Pen. 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).[1]
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 Aprefer 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.
Ineffective Assistance B Motion for New Trial
In his second point of error, appellant contends he received ineffective assistance of counsel during the thirty-day period after sentencing for filing a motion for new trial. See Tex. R. App. P. 21.4. The trial court imposed sentence on October 4, 2001. On October 9, appellant filed a written notice of appeal, signed by his trial counsel. On November 19, 2001, after the time for filing a motion for new trial had lapsed, the trial court signed an order appointing appellant=s current counsel, Angela Cameron, as appellate counsel. Appellant then filed in this court a motion to abate the appeal, claiming that, had appellate counsel been appointed sooner, she would have filed a motion for new trial alleging ineffective assistance of counsel. We denied appellant=s motion to abate, as well as a motion to reconsider. Appellant now argues on direct appeal that he was denied effective assistance of counsel during the period he could have filed a motion for new trial. Because appellant has not affirmatively established that he was without counsel during this time, his complaint fails.
This court has held that a defendant has a right to counsel during the time for filing a motion for new trial. See Hanson v. State, 11 S.W.3d 285, 288 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). The trial court appointed Cameron as appellant=s counsel on appeal on November 19, 2001, sixteen days after the time for filing a motion for new trial had passed. However, the record contains no evidence suggesting that appellant=s trial counsel abandoned him or otherwise believed his duties were complete before this time period had expired.[2] To the contrary, five days after appellant was sentenced, appellant filed a written notice of appeal that was signed by his trial counsel. The only other evidence the record contains is the district clerk=s assignment letter, dated November 16, indicating that appellant=s attorney of record on appeal is to be determined. This letter does not support appellant=s claim that he was denied the assistance of counsel up until November 5, the deadline for filing his motion for new trial. We conclude that the record in this case is insufficient to rebut the presumption that, during the time period for filing a motion for new trial, appellant was represented by counsel and counsel acted effectively. See Oldham v. State, 977 S.W.2d 354, 362B63 (Tex. Crim. App. 1998). We overrule appellant=s second point of error.
Ineffective Assistance B Punishment Phase
Finally, appellant claims his trial counsel was ineffective during the punishment phase of the trial. At one point during appellant=s testimony in the punishment phase, his counsel asked him about the circumstances behind appellant=s previous conviction for misdemeanor theft. The State objected to the question, and the trial court sustained the objection. Appellant argues that this testimony was admissible and that his trial counsel=s failure to take the necessary steps to preserve this complaint for appeal constitutes ineffective assistance. See Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999) (AError in the exclusion of evidence may not be urged unless the proponent perfected an offer of proof or a bill of exceptions.@).
The standards for reviewing claims of ineffective assistance under the Sixth Amendment are well established. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Appellant=s ineffective-assistance claim fails because he presents no evidence to overcome the strong presumption that his counsel=s conduct fell within the wide range of reasonable representation. See McFarland, 928 S.W.2d at 500. It could be that appellant=s trial counsel changed his mind about presenting evidence concerning appellant=s theft conviction, and therefore he made a strategic decision not to challenge the court=s adverse ruling. In the absence of any evidence to the contrary, we cannot conclude the performance of appellant=s trial counsel was deficient. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
Furthermore, appellant has not affirmatively proven prejudice. See McFarland, 928 S.W.2d at 500. The record in this case contains no indication of what appellant=s excluded testimony would have been. Thus, we cannot determine whether there is a reasonable probability that, but for the failure to preserve appellant=s complaint regarding the exclusion of his testimony, a different outcome would have resulted. See id. We overrule appellant=s third point of error.
We affirm the trial court=s judgment.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Memorandum Opinion filed March 13, 2003.
Panel consists of Justices Yates, Anderson, and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] A sixth judge, Judge Meyers, concurred in the judgment but did not join any opinion.
[2] Appellant attempts to rely on an affidavit he submitted to this court in support of his motion to abate the appeal. Because this affidavit was never before the trial court, it is not part of the appellate record, and we may not consider it as part of this direct appeal. See Yarbrough v. State, 57 S.W.3d 611, 616 (Tex. App.CTexarkana 2001, pet. ref=d) (citing Tex. R. App. P. 34.1).