DAVID S. VERA v. THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

    NUMBER 13-01-285-CR

    COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

DAVID VERA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 117th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Justice Ya ez

A jury convicted appellant, David Vera, of aggravated sexual assault of a child and assessed punishment at twenty years of confinement. See Tex. Pen. Code Ann. ' 22.021 (Vernon Supp. 2002). By one issue, appellant contends the trial court erred in granting the conviction because the trial court=s comments duringvoir dire examination were calculated to discourage and cut off truthful answers to important questions, thereby depriving the appellant of a fair trial with impartial adjudicators. We overrule the issue and affirm the decision of the trial court.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here. Tex. R. App. P. 47.1.

In order to preserve a complaint for appellate review, a party must have presented the trial court with a timely objection, or request, stating the specific grounds for the ruling he desires. Tex. R. App. P. 33.1(a)(1) (Vernon 2002). Absent a timely objection, error is waived with regard to such issue. See Nelson v. State, 661 S.W.2d 122, 124 (Tex. Crim. App. 1983); Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. 1980); Crocker v. State, 573 S.W.2d 190, 205 (Tex. Crim. App. 1978). More specifically, the court in Nelson reiterated the necessity of objection during voir dire examination to preserve error on appeal. Nelson, 661 S.W.2d at 124.

As the court=s record reflects and the appellant concedes, no objection was raised by defense counsel at the time the trial judge made any of the comments now complained of. Both the prosecutor and defense counsel continued with the voir dire examination after the judge's comments. Thus, no objection was raised to the trial court=s comments.

Defense counsel relies on Blue v. State in support of his contention that no objection is necessary to preserve such an error on appeal. See Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App 2000)(plurality op.). We conclude, however that this reliance is misplaced. In Blue, the court found that the judge=s comments tainted the trial court=s presumption of innocence before the venire and thus were fundamental errors of constitutional dimension requiring no objection. Id. at 132. However, the holding in Blue does not extend to the instant case. Id. at 131. As a concurring opinion in Blue makes clear, the holding is limited to those cases where the trial court itself was biased. Id. at 134. In the present case, the comments made by the trial court do not reference the defendant=s guilt or innocence and show no indication of bias by the court. Id.; See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). Therefore, we hold that Blue is inapplicable and appellant was required to object in order to preserve error. See Nelson, 661 S.W.2d at 124.

Appellant failed to raise this issue in the trial court, and has thus failed to preserve it for review. Tex. R. App. P. 33.1 (a)(1). We overrule appellant=s sole issue.

The judgment of the trial court is affirmed.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

15th day of August, 2002.