                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-06-450-CR


DEREK SANFORD PHELPS                                               APPELLANT

                                              V.

THE STATE OF TEXAS                                                      STATE

                                          ------------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

                                          ------------

      Appellant Derek Sanford Phelps appeals his conviction for indecency with

a child by exposure. In his sole point, he argues that he was deprived of a fair

and impartial tribunal at the punishment hearing because the trial judge failed

to consider the full range of punishment by improperly holding appellant’s

failure to testify during the punishment phase against him and then assessing

punishment near the top of the punishment range. We affirm.


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          … See T EX. R. A PP. P. 47.4.
                                Background Facts

      On August 31, 2006, a jury convicted appellant of the offense of

indecency with a child by exposure.         See T EX. P ENAL C ODE A NN. § 21.11

(Vernon 2003). Although appellant testified during the guilt/innocence phase

of the trial, he did not testify at the punishment hearing.     On December 8,

2006, the trial court assessed punishment at eight years’ confinement.

                               Standard of Review

      To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. T EX. R. A PP. P. 33.1(a)(1); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

1070 (1999). Further, the trial court must have ruled on the request, objection,

or motion, either expressly or implicitly, or the complaining party must have

objected to the trial court’s refusal to rule. T EX. R. A PP. P. 33.1(a)(2); Mendez

v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Preservation of error

is a systemic requirement that this court should review on its own motion.

Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007); Jones v. State,

942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997).




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                             Analysis

After sentencing appellant, the trial judge stated the following:

[The Court]:      Any legal reason why I shouldn’t sentence him at
                  this time?

[Mr. Rannefield]: No, Your Honor.

[The Court]:      I’ll sentence you to eight years in this case and
                  I’ll direct you to the sheriff of this county to
                  deliver you to the Director for you to serve out
                  your time. I’ll give you credit for time served.

                  The interesting thing about this case is that there
                  were actually two cases, two little girls were
                  involved in this, which is very serious. And
                  based upon your view, you have denied it all
                  along.     You still even to the presentence
                  investigator you have denied that that even
                  happened. So basically what you’re saying is
                  that the little girls were lying and that you were
                  here basically to take care of the mother and
                  those children.

                  And putting you on probation and requiring you
                  to go through all of the various sex offender
                  treatment programs, it just would not have
                  worked. The first thing a person has to do is
                  admit that he did, in fact, commit these offenses
                  and then it’s opened up for you to address the
                  situation, follow the rules, and try to turn your
                  life around. You go in denying it, it never works.

                  I mean, they can’t even assess you properly
                  when you go in denying because you have to
                  take these various tests. So you would not have
                  been a good candidate for a probation. These
                  cases themselves are so serious, I just don’t

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                         think that a probation would have been in order
                         in this particular case.

                         All right. That’s going to be [the] order of the
                         Court.

      [Mr. Poe]:         Thank you, Your Honor.

      Here, appellant did not object to the sentence at trial; therefore, any error

is waived. T EX. R. A PP. P. 33.1(a)(1); Mosley, 983 S.W.2d at 265; Thompson

v. State, 243 S.W.3d 774, 775-76 (Tex. App.—Fort Worth 2007, pet. filed).

      Appellant, however, relies on Blue v. State, in which the court of criminal

appeals held that the lack of an objection will not waive a similar error. 41

S.W.3d 129, 132-33 (Tex. Crim. App. 2000) (plurality op.); see T EX. R. E VID.

103(d). In Blue, a majority of the court of criminal appeals–in a plurality and

in concurring opinions–upheld the general rule that error in a trial court’s

comments to a jury is waived absent a timely objection. Blue, 41 S.W.3d at

133 (“This case is highly unique and litigants should not view this holding as

an invitation to appeal without making proper, timely objections.”), 134

(Mansfield, J. concurring) (same), 139 (Keasler, J. concurring) (same); see also

Davenport v. State, No. 02-05-00170-CR, 2006 W L 1653320, at *3 (Tex.

App.—Fort Worth Jun. 15, 2006, pet. ref’d) (mem. op., not designated for

publication). The plurality opinion in Blue went on to hold, however, that in

that particular case the trial court’s comments explaining to the jury that the

                                        4
defendant attempted to enter into a plea bargain with the State and that the

trial court would have preferred a guilty plea “vitiated the presumption of

innocence” before the venire and constituted fundamental error.          Blue, 41

S.W.3d at 133; see also Davenport, 2006 WL 1653320, at *3.                   Such

fundamental error did not require preservation by objection. 2 Blue, 41 S.W.3d

at 133; see also Davenport, 2006 WL 1653320, at *3.

      In this case, unlike in Blue, the trial court’s comments did not taint

appellant’s presumption of innocence in front of a jury. In fact, the trial court’s

comments were made during the punishment stage after the jury had found him

guilty and after the trial court had assessed punishment; the jury had already

been dismissed. Cf. Blue, 41 S.W.3d at 133. Because appellant did not object

to his sentence and because the alleged error was not fundamental, appellant

failed to preserve this issue for review.      See T EX. R. A PP. P. 33.1(a)(1);

Davenport, 2006 WL 1653320, at *3. Furthermore, the trial court’s comments

show that it was considering statements made by appellant to the presentence

investigation officer, not appellant’s failure to testify at punishment; those

statements related to whether appellant could be rehabilitated or whether he




      2
      … Because there is no majority opinion in Blue, it is not binding
precedent. See Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex. Crim. App.
1999).

                                        5
was a good candidate for probation, which appellant had specifically requested.

Thus, the trial court’s comments did not bear on appellant’s failure to testify at

the punishment hearing or show that appellant was denied an impartial tribunal.

See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). Therefore,

we overrule appellant’s sole point.

                                   Conclusion

      Having overruled appellant’s sole issue, we affirm the trial court’s

judgment.




                                                  TERRIE LIVINGSTON
                                                  JUSTICE

PANEL B:     LIVINGSTON, HOLMAN, and GARDNER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: April 24, 2008




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