                        NO. 07-06-0354-CR and 07-06-0369-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 JANUARY 2, 2008
                         ______________________________

                         JOHNNY LEWIS MONK, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

             NO. 51,457-A, 51,456-A; HONORABLE HAL MINER, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Johnny Lewis Monk, appeals his convictions for the offenses of

aggravated sexual assault of a child and indecency with a child and sentences of 45 years

and 15 years, respectively, incarceration in the Institutional Division of the Texas

Department of Criminal Justice. Appellant’s sole issue is whether a comment made by the

trial court during voir dire denied appellant due process of law. We affirm.
                                          Background


         Appellant was charged with the above-identified offenses. On motion of the State,

the causes were consolidated for trial. Prior to trial, appellant made an election to have the

jury assess punishment in each cause, should they convict him. During voir dire, the State

questioned the venire panel extensively regarding whether they could consider the full of

range of punishment for the offenses alleged. After a few potential jurors indicated that

they might have a problem doing so, the trial court made the following statement to the

panel:


         Ladies and gentlemen, what she [the prosecutor] is trying to explain is this.
         You can’t serve on this jury unless you can at least just say you will consider
         the full range of punishment. You don’t have to commit to any of it now, and
         you just have to tell her, yes, I can consider the full range of punishment
         theoretically in a case of this nature. That’s all you have to be able to do.


Appellant did not object to the trial court’s statement. Further, appellant’s trial counsel

made no inquiry into the jury panel’s ability to consider the full range of punishment during

voir dire.


         By his appeal, appellant contends that the above-quoted statement by the trial court

“effectively instructed the prospective jurors how to avoid elimination from the jury” and

“denied Appellant a fair trial because jury panel members who were unwilling to consider

the minimum punishment were unable to be disqualified . . . .” We conclude that, to

preserve error, if any, in regard to the trial court’s statement, appellant was obligated to

make a timely objection. Because he failed to do so, nothing is presented for our review.



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                                           Analysis


       Appellant acknowledges that he failed to object to the challenged statement of the

trial court, but he maintains that the statement was fundamental error for which an

objection is not required.


       As a general rule, to preserve a complaint for appellate review, a party must have

made a timely objection to the trial court and obtained a ruling on the objection. TEX . R.

APP . P. 33.1; Munoz v. State, 485 S.W.2d 782, 784 (Tex.Crim.App. 1972). Failure to

object to a trial court’s statement during voir dire results in error not being preserved for

appellate review. See Rodriguez v. State, No. 07-97-0453-CR, 1999 Tex.App. LEXIS

3870, at *4 (Tex.App.–Amarillo May 24, 1999, no pet.) (not designated for publication)

(citing Butler v. State, 872 S.W.2d 227, 240 (Tex.Crim.App. 1994)). However, remarks or

conduct of the trial court may be challenged on appeal if fundamentally erroneous, even

though no objection was raised.        Id. (citing Brewer v. State, 572 S.W.2d 719, 721

(Tex.Crim.App. 1978)).


       Fundamental error is error that is so egregious and creates such harm that it

deprives the defendant of his right to a fair and impartial trial. Id. at *4-*5 (citing Almanza

v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984)). Egregious harm is presented when

the error made the case for conviction or punishment clearly and significantly more

persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991). Generally,

an instruction to the jury to disregard a comment of the trial court is sufficient to cure error,

if any. See Marks v. State, 617 S.W.2d 250, 252 (Tex.Crim.App. 1981). However, error


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is fundamental when the error is so egregious that it would be impossible to withdraw the

impression produced on the jury’s minds even with an instruction to disregard. See

Rodriguez v. State, 646 S.W.2d 539, 542-43 (Tex.App.–Houston[1st Dist.] 1982, no writ).

Thus, our review of whether the trial court’s comment constituted fundamental error is

guided by whether the comments could have been cured by a jury instruction to disregard.


       In the present case, appellant contends that the statement made by the trial court

could be interpreted by the jury panel as an instruction on how to avoid elimination from

the jury, even if the prospective juror could not, in fact, consider the full range of

punishment for the offenses for which appellant was charged. Even were we to presume

that appellant’s interpretation of the statement was how it was interpreted by the members

of the jury panel,1 the error could have been easily cured by a clarification or an instruction

to disregard. However, because appellant failed to raise any objection to the statement,

the trial court was denied the opportunity to cure the error.2 Thus, we do not find the trial

court’s challenged statement to be so egregious or to have created such harm that it

deprived appellant of his right to a fair and impartial trial. Almanza, 686 S.W.2d at 157.




       1
          “When there are two possible interpretations which can be given to the utterances
of a trial judge, we will not assume the worst and presume error.” Tuttle v. State, No. 06-
06-00251-CR, 2007 Tex.App. LEXIS 6468, at *7 (Tex.App.–Texarkana August 16, 2007,
no pet. h.) (not designated for publication) (citing State v. Ross, 32 S.W.3d 853, 857
(Tex.Crim.App. 2000)).
       2
          In addition, we note that any harm that may have been caused by the panel
misinterpreting the trial court’s statement may have been cured even in the absence of a
clarification or instruction to disregard. During voir dire, had appellant inquired into the jury
panel’s ability to consider the full range of punishment, any misunderstanding regarding
the jury’s duty to consider the full range of punishment may have been discovered.

                                               4
Thus, appellant’s failure to preserve error waives his claim of error and presents nothing

for our review. See Butler, 872 S.W.2d at 240.


                                        Conclusion


       The comments of the trial court complained of on appeal do not constitute

fundamental error and were not preserved by timely objection. Accordingly, appellant’s

issue is overruled and the judgment of the trial court is affirmed.




                                                 Mackey K. Hancock
                                                      Justice



Do not publish.




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