DAMION DARNELL JONES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued June 18, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00219-CR
............................
DAMION DARNELL JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-66926-NR
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OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Whittington
        Damion Darnell Jones appeals his conviction for aggravated robbery with a deadly weapon. See Tex. Penal Code Ann. § 29.03 (Vernon 2003). After appellant pleaded guilty, the trial judge sentenced him to twelve years' imprisonment. In four issues, appellant claims the trial judge abused his discretion in assessing a grossly disproportionate sentence and in questioning a witness. In a fifth issue, he contends he received ineffective assistance of counsel at trial. We affirm the trial court's judgment.
        Appellant was indicted for aggravated robbery with a deadly weapon. He waived his right to a jury trial and pleaded guilty without a plea agreement as to punishment. He signed a judicial confession and a stipulation of evidence. Appellant acknowledged the range of punishment for aggravated robbery with a deadly weapon was imprisonment for life or a term of not more than ninety-nine years or less than five years and a fine not to exceed $10,000. Following the punishment hearing, the trial judge sentenced appellant to twelve years' imprisonment. This appeal followed.
        In his first three issues, appellant contends the trial judge abused his discretion in assessing the twelve-year sentence. Under these issues, appellant claims his sentence is excessive and constitutes cruel and unusual punishment under both the United States and Texas Constitutions. To preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must first present his complaint to the trial judge by way of a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a); Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002); Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd). Appellant did not complain about his sentence at the time it was imposed nor did he challenge the sentencing in his motion for new trial. Therefore, we conclude appellant has failed to preserve these issues for our review. See Hull, 67 S.W.3d at 217; Castaneda, 135 S.W.3d at 723.
        Moreover, we note the twelve-year sentence assessed was within the range of punishment. See Tex. Penal Code Ann. §§ 12.32, 29.03(b) (Vernon 2003) (first degree felony punished by imprisonment for life or for term of not more then ninety-nine years or less than five years); see Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd) (punishment assessed within statutory range is not constitutionally cruel and unusual) (citing Carpenter v. State, 783 S.W.2d 232, 232-33 (Tex. App.-Dallas 1989, no pet.)). Nothing in the record indicates the judge did not consider the full range of punishment before sentencing appellant. Thus, even if we were to consider appellant's firs three complaints, we would conclude they lack merit. We overrule his first three issues.
        In his fourth issue, appellant claims the trial judge abused his discretion by sua sponte questioning a witness. Under this issue, appellant suggests the trial judge abandoned his role as impartial arbiter and that, by becoming “involved in the fray,” the judge reacted harshly as evidenced by his assessing a twelve-year sentence. We disagree.
        As was the case in the previous three issues, appellant failed to object during the hearing to the trial judge's questioning of a witness at the time it occurred. In light of this, we conclude appellant waived this issue. See Tex. R. App. P. 33.1(a).
        Even if we address his complaint, we would not conclude the trial judge erred. “In the Texas adversarial system, the judge is a neutral arbiter between the advocates; he is the instructor in the law to the jury, but he is not involved in the fray.” Brown v. State, 122 S.W.3d 794, 797 (Tex. Crim. App. 2003). A trial judge “shall not discuss or comment upon the weight of the evidence or its bearing” in a case nor should the judge “make any remark calculated to convey to the jury his opinion of the case.” Rodrigues v. State, 8 S.W.2d 149, 150, 110 Tex. Crim. 267, 269 (1928) (per curiam). Nevertheless, in a nonjury trial, the trial judge may question a witness to clarify or obtain information about the facts of the case. See Cleveland v. State, 588 S.W.2d 942, 945 (Tex. Crim. App. [Panel Op.] 1979); Marshall v. State, 297 S.W.2d 135, 136-37, 164 Tex. Crim. 167, 168 (1956).
        In this case, appellant waived his right to a jury trial, signed a judicial confession, and pleaded guilty. Keaondra Woodson testified she was working at the Kentucky Fried Chicken on June 9, 2006. Shortly after the lunch hour, two males rushed in and ran up to the counter where Woodson was standing. The first male had a gun and pointed it at her, demanding money. After Woodson testified, she was cross-examined by appellant's counsel. The trial judge then asked several questions addressing the time of day the robbery occurred, where the gun was pointed during the robbery, what the man with the gun said to Woodson and the tone of voice he used, how many people were in the restaurant at the time, and the duration of the robbery. Thereafter, appellant testified about the robbery. Appellant admitted he (i) committed the robbery, (ii) held the gun during the robbery, and (iii) pointed the gun in Woodson's direction but not directly at her. Under these facts and circumstances, we cannot conclude the trial judge's questions seeking clarification of Woodson's testimony was erroneous. See Cleveland, 588 S.W.2d at 945 (because trial judge's questions were relative to evidence appellant raised, no error in judge's interrogation); Navarro v. State, 477 S.W.2d 291, 292 (Tex. Crim. App. 1972) (contention that trial judge indicated bias by asking questions of witness without merit; case was tried to judge on appellant's guilty plea and questions by judge were to clarify witness's testimony); Ash v. State, 420 S.W.2d 703, 705 (Tex. Crim. App. 1967) (when trial court participates in questioning of witnesses seeking information only, no error is committed); Marshall, 297 S.W.2d at 136-37, 164 Tex. Crim. at 168 (court had right to question witness in order to obtain clearer idea of merits of case, and in nonjury trial, judge's action could not have injured appellant); Rodrigues, 8 S.W.2d at 150 (judge appeared to have been asking information when he questioned witness about location of car). We overrule appellant's fourth issue.
        In his final issue, appellant claims he received ineffective assistance of counsel at trial. Specifically, he claims counsel was ineffective for failing to object to the trial judge's questioning of the witness. Trial counsel is not ineffective for failing to make futile objections. See Bourque v. State, 156 S.W.3d 675, 678-79 (Tex. App.-Dallas 2005, pet. ref'd) (because no transfer orders were required, trial counsel could not be ineffective for failing to file pleas to jurisdiction complaining of lack of transfer orders.); Wood v. State, 4 S.W.3d 85, 91 (Tex. App.-Fort Worth 1999, pet. ref'd) (because trial court's charge on issue of intent was not erroneous, trial counsel did not render ineffective assistance of counsel by failing to object to charge); Thacker v. State, 999 S.W.2d 56, 67 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (trial counsel not ineffective for failing to file motion to quash or object to indictment when indictment was legally sufficient). Because we already concluded the trial judge did not err in questioning the witness, it follows that trial counsel could not be ineffective for failing to object. We overrule appellant's final issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070219F.U05