IN THE
TENTH COURT OF APPEALS
No. 10-11-00091-CR
WILLIAM CHARLES WEBB,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law No. 2
McLennan County, Texas
Trial Court No. 20102004CR2
MEMORANDUM OPINION
Raising three issues, William Webb appeals his misdemeanor conviction for
criminal mischief ($50 or more but less than $500) and 180-day jail sentence with a
$2,000 fine. The alleged criminal mischief was Webb’s breaking his ex-girlfriend’s car
window with a rock.
In his first issue, Webb asserts that a comment by the trial judge during voir dire
tainted his presumption of innocence and adversely affected his right to a fair trial. At
the beginning of voir dire, the trial judge stated to the jury panel: “”I’m the Judge of
County Court at Law No. 1. I’ll be presiding over this case. Actually, it was filed in
another court and there was a conflict of interest there, so it was sent to my court to
handle.”
Webb, who represented himself at trial, did not object. We assume without
deciding that a timely and specific objection was not required. See Blue v. State, 41
S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.) (“comments of the trial judge,
which tainted appellant’s presumption of innocence in front of the venire, were
fundamental error of constitutional dimension and required no objection”); see also
Mason v. State, 237 S.W.3d 800, 802, 805 (Tex. App.—Waco 2007, pet. ref’d).
Webb contends that the trial judge’s comment that there was a “conflict of
interest” alerted the jury panel that Webb had a prior criminal background and tainted
the presumption of innocence. Webb argues that the “obvious implication” from the
statement was that the newly elected judge of County Court at Law No. 2 could not
preside over Webb’s trial because he had previously represented Webb in a criminal
case.
We agree with the State that the statement did not prejudice Webb in any way.
The statement did not refer to Webb or any act by him. The trial judge expressed no
opinion about Webb nor directly gave the jury any impression that Webb had a criminal
record. Moreover, given the general content of the statement, there is no connection
between the conflict of interest and Webb’s having a criminal record. The statement
does not implicate a prior representation of Webb in a criminal case. We overrule issue
one.
Webb v. State Page 2
We next turn to Webb’s third issue, which asserts that the trial court erred in
failing to instruct the jury, sua sponte, that it could not consider extraneous-offense
evidence, in assessing punishment, unless it found that the extraneous offenses were
proved beyond a reasonable doubt. The State agrees that the trial court should have
given this instruction. See Delgado v. State, 235 S.W.3d 244, 252 (Tex. Crim. App. 2007)
(“the trial judge must sua sponte instruct the jury at the punishment phase concerning …
the fact that the State must prove any extraneous offenses beyond a reasonable doubt”).
We thus review the error for egregious harm. Martinez v. State, 313 S.W.3d 358,
365 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); see Almanza v. State, 686 S.W.2d 157
(Tex. Crim. App. 1985) (op. on reh’g) (holding that unobjected-to jury charge error will
not result in reversal in the absence of “egregious harm”). In examining the record for
egregious harm, we consider the entire jury charge, the state of the evidence, the final
arguments of the parties, and any other relevant information revealed by the record of
the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury
charge error is egregiously harmful if it affects the very basis of the case, deprives the
defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218
S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.
App. 2006).
Despite the omitted instruction on extraneous-offense evidence, the charge did
state: “The burden of proof in all criminal cases rests upon the State throughout the
trial and never shifts to the defendant.”
Webb v. State Page 3
The State presented evidence of Webb’s extensive criminal record consisting of
numerous convictions, including two felony convictions, and several cases that were
dismissed in connection with guilty pleas in other cases. Webb did not object to their
admission, and when he testified, he did not deny his prior criminal record.
The victim and a detective collectively testified to the following extraneous
offenses allegedly committed by Webb: another occasion where Webb allegedly broke
another window on the victim’s car; and Webb allegedly put water in the victim’s gas
tank and put a water hose in the victim’s dryer vent at her house. Another extraneous
offense was Webb’s allegedly sending threatening letters to the victim while he was in
jail, in violation of a protective order. At the time of trial, that charge was still pending,
but on cross-examination, Webb admitted to sending the letters. He also did not deny
committing any of the alleged extraneous offenses.
In closing argument, in addition to discussing Webb’s prior convictions, the State
generally mentioned the several unadjudicated extraneous offenses against the victim.
Webb’s argument included his statement that he had “paid [his] dues” for the crimes he
had committed, but he did not address the several unadjudicated extraneous offenses.
The State did not discuss them in rebuttal.
Viewing the record as a whole, and especially considering Webb’s undisputed
and extensive history of criminal convictions and his admission to writing the
threatening letters to the victim and thus violating the protective order, we cannot say
that egregious harm occurred in the punishment phase. Issue three is overruled.
Webb v. State Page 4
Webb’s second issue complains that the judgment is defective because, in reciting
the jury’s punishment verdict, it erroneously reflects the jury found Webb guilty of the
offense of “assault family violence,” rather than criminal mischief. We agree with the
parties’ suggestions that we should modify the judgment to correct this clerical error.
See TEX. R. APP. P. 43.2(b). Accordingly, we sustain the second issue, and the judgment
is modified to state that, in the jury’s verdict on punishment, the jury had found Webb
guilty of the offense of criminal mischief.
Webb also points out that the sixth sentence in the judgment incorrectly refers to
him as “her;” accordingly, we modify that sentence to reflect that “the Court found him
guilty of the offense of CRIMINAL MISCHIEF.”
As modified, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed October 18, 2012
Do not publish
[CR25]
Webb v. State Page 5
William Charles Webb v. State
Combined Opinion