Opinion
No. 05-06-00598-CR
Opinion Filed March 20, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F05-71797-LQY.
Before Justices WRIGHT, BRIDGES, and MAZZANT.
MEMORANDUM OPINION
James Earl Manus appeals his conviction for aggravated sexual assault of a child. After the jury found appellant guilty, it assessed punishment at 99 years' confinement. In a single issue, appellant contends the trial judge committed fundamental error by commenting on the weight of the evidence. We overrule appellant's issue and affirm the trial court's judgment. Appellant maintains his right to a fair and impartial trial was violated by comments of the trial judge. Specifically, appellant complains of the following explanation of the verdict form:
The last page, ladies and gentlemen, is the verdict form. On the top it says: "We, the jury, find the defendant guilty of the offense of aggravated sexual assault of a child, as charge[d] in the indictment. And then it has a signature for the presiding juror. If you would also print your name underneath it so I could read who it was. And then, "Or, We, the jury, find the defendant, not guilty." And then there is a line also for the presiding juror to sign if that is your verdict.As a general rule, trial counsel must object to preserve error, even if it is "incurable" or "constitutional." See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Here, appellant acknowledges that he did not object to the comments, but, relying on Blue v. State, 41 S.W.3d 129 (Tex.Crim.App. 2000), he maintains the comments constituted fundamental error requiring reversal. We disagree. In Blue, the trial judge apologized to the venire for its long wait, stated the delay was due to the defendant's indecisiveness on whether to accept a plea bargain, and expressed his preference for the defendant to plead guilty. Blue, 41 S.W.3d at 130. A plurality of the court of criminal appeals held that a trial judge's comments "which tainted [the defendant's] presumption of innocence in front of the venire were fundamental error of constitutional dimension and required no objection." Id. at 132. A plurality opinion, however, is not binding precedent. Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001) (acknowledging Blue as plurality opinion that court was not bound to follow). Further, even if Blue were binding authority, the complained-of comment in this case does not rise to this level. Although inartfully worded, when the trial judge's explanation of the verdict form is considered as a whole, the trial judge merely explained that the presiding juror should print their name underneath the signature line for either a guilty or a not guilty verdict, whichever was appropriate. Thus, we cannot conclude the complained-of comment in any way prejudiced the jury to the degree discussed in Blue. We conclude appellant has not shown the fundamental error doctrine applies in this circumstance. Because appellant did not object at trial, he has waived his complaint. We overrule appellant's sole issue. Accordingly, we affirm the trial court's judgment.