Opinion
No. 11-04-00032-CR
August 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Ector County.
OPINION
Jeremy Dwuan Hall appeals his conviction by a jury, following his plea of guilty, of the offense of aggravated robbery. The jury assessed his punishment at 55 years in the Texas Department of Criminal Justice, Institutional Division. He contends in a single issue that the comments by the trial court during voir dire were comments on the weight of the evidence and were so prejudicial that they deprived him of a fair and impartial trial. We affirm. The record reflects that Hall and a companion stole beer from a convenience store; then returned; got money from the cash register; and, in the process, punched the cashier's face, body, and chest, and kicked and stomped him. The attack resulted in the cashier suffering severe closed head trauma. In discussing the range of punishment with the jury, the trial court said, "Now the question that Mr. Hadden is asking you about punishment in a way has nothing to do with this case." The court went on to describe a situation where someone comes into a store because his or her family is starving, grabs a loaf of bread, pushes the clerk down, and the clerk suffers serious bodily injury when they hit their head when being pushed down. The court suggested that was a situation where the jury might consider a punishment in the lower range. Next, the court described a situation where a person goes in to rob someone, pistol whips them, ties them up, and does all kinds of terrible things to them, and suggested that that is a case where it might be appropriate to consider the maximum punishment. After this explanation of the reason for having a range of punishment, the trial court stated, "Do you see now why that is the reason for the range of punishment? It has nothing to do with this case." Rather than object to the court's comments, Hall waited until the conclusion of the voir dire, moving to quash the jury panel or "for lack of a better word mistrial." When a party's first action is to move for mistrial, the scope of appellate review is limited to the question of whether the trial court erred in not taking the most serious action of ending the trial. Young v. State, 137 S.W.3d 65, 70 (Tex.Cr.App. 2004). An event that could have been prevented by timely objection or cured by instruction to the jury will not lead an appellate court to reverse a judgment on appeal by the party who did not request these lesser remedies in the trial court. Id. The record reflects that the trial court was using two examples: one that would possibly justify a lower punishment and one that would possibly justify a higher punishment. The trial court made clear that the examples were used to explain the concept and that they had nothing to do with Hall's case. We, therefore, do not accept Hall's assertion that the trial court's comments could reasonably be interpreted to mean that the trial court was suggesting that the jury should assess the maximum punishment for Hall. Even if the trial court's comments could be construed to be comments on the weight of the evidence, we hold that any such error in the trial court's comments could be cured by an instruction to disregard. Consequently, the trial court did not err by overruling Hall's motion to quash the panel or motion for mistrial. We disagree with Hall's assertion that an instruction to disregard would not have cured the error. Consequently, we overrule Hall's sole issue. The judgment is affirmed.