      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00487-CR



                                Stephen Douglas James, Appellant

                                                  v.

                                   The State of Texas, Appellee


    FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
        NO. 11,046, HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING



                                           OPINION


               On July 16, 2007, Stephen Douglas James pleaded guilty to two counts of aggravated

sexual assault of a child under the age of fourteen. See Tex. Penal Code Ann. § 22.021

(West Supp. 2007). The trial court accepted James’s pleas, and the issue of punishment was

submitted to the jury. The jury sentenced him to life imprisonment on each count. In two issues on

appeal, James argues that (1) the trial court’s failure to admonish him in accordance with article

26.13(a)(5) of the code of criminal procedure was harmful error and (2) his trial was fundamentally

unfair because of the trial court’s improper and prejudicial comments regarding a witness. We

overrule James’s issues and affirm the judgment.


                                           DISCUSSION

               Because James does not challenge the sufficiency of the evidence supporting his

conviction, we will recite the facts only as they are relevant to the issues he raises.
Admonishment

                In his first issue, James argues that it was error for the trial court to fail to admonish

him on the record that, as a condition of any future parole, release to mandatory supervision, or

community supervision, he would be required to register as a sex offender. See Tex. Code Crim.

Proc. Ann. art. 26.13(a)(5) (West Supp. 2007). The court’s failure to properly admonish him, James

contends, rendered his guilty plea involuntary, and accordingly, his plea must be set aside and the

cause remanded for new trial.1 The State concedes that the trial court failed to admonish James in

this regard, but correctly argues that article 26.13(h) expressly provides that the failure of the court

to admonish a defendant of the registration requirement “is not a ground for the defendant to set

aside the conviction, sentence, or plea.” Id. art. 26.13(h). The Legislature added this provision to

article 26.13 in 2005, making it applicable to “a plea of guilty or a plea of nolo contendere that is

entered on or after [September 1, 2005,] the effective date of this Act.” Tex. Code Crim. Proc.

Ann. art. 26.13(h) historical note (West Supp. 2007) [Act of June 18, 2005, 79th Leg., R.S., ch.

1008, § 1.03, 2005 Tex. Gen. Laws 3419, 3419].

                It is undisputed in this case that James’s plea was entered in July of 2007, nearly two

years after the effective date of the amendment. Therefore, his complaint about the voluntariness

of his plea is governed by the amended statute, current article 26.13(h).2


        1
          Although James did not timely object to the trial court’s failure to properly admonish him,
the court of criminal appeals has held that an appellant is entitled to assert this challenge for the first
time on appeal, “despite not having made the claim in the trial court.” Bessey v. State, 239 S.W.3d
809, 813 (Tex. Crim. App. 2007).
        2
         The authorities James cites in his brief all pre-date the 2005 amendment to article 26.13(h),
and his argument does not address either the fact of the statute’s amendment or the amendment’s
bearing on this case.

                                                    2
               Prior to the 2005 amendment to article 26.13, Texas courts analyzed a trial court’s

failure to properly admonish a defendant of the registration requirement under the harm analysis of

Texas Rule of Appellate Procedure 44.2(b), which provides that any non-constitutional error, defect,

irregularity, or variance that does not affect substantial rights must be disregarded. See Tex. R.

App. P. 44.2(b); see also Bessey v. State, 239 S.W.3d 809, 813 (Tex. Crim. App. 2007). “In

applying Rule 44.2(b) to the failure to give an admonition, the court considers the record as a whole

to determine whether, in this particular case, the error affected substantial rights.” Bessey,

239 S.W.3d at 813 (citing Anderson v. State, 182 S.W.3d 914, 918 (Tex. Crim. App. 2006)). In

conducting its determination, the reviewing court will consider the strength of the evidence of guilt,

whether the record indicates that the appellant was aware of the requirement, and whether the

omitted admonition actually applied to the appellant’s situation. Anderson, 182 S.W.3d at 919-21.

               In Bessey, a case decided under the pre-amendment version of article 26.13(h), the

court of criminal appeals acknowledged that the legislature had recently amended the law governing

the sex-offender registration requirement. See 239 S.W.3d at 814 n.6. The court further stated, “We

do not address the proper harm analysis under the current 26.13(h) for a failure to admonish

regarding sex-offender registration.” Id. There has been no subsequent pronouncement by the court

of criminal appeals as to what the proper harm analysis would require under article 26.13(h) as

amended—or if any such analysis is necessary or appropriate under the new law. Only one other

court of appeals has addressed this argument under the amended version of article 26.13(h). See

Standifer v. State, No. 05-06-00078-CR, 2006 Tex. App. LEXIS 9358, at *7 (Tex. App.—Dallas

Oct. 30, 2006, no pet.) (mem. op., not designated for publication). The Dallas court held that


                                                  3
appellant’s argument necessarily failed in light of the legislative amendment, concluding, “Because

Standifer’s sole complaint about his plea in the sexual assault case is the court’s failure to admonish

him concerning the sex offender registration requirement, we resolve Standifer’s third issue against

him.” We agree with our sister court that the legislature, by amending article 26.13(h), has

foreclosed the relief James now requests on appeal, and we overrule his first issue.3


Trial court’s comments

                In his second issue, James argues that he was denied due process as a result of the trial

court’s “improper and prejudicial comments regarding a witness.” The complained-of remarks were

made during the defense’s cross-examination of State’s witness Mike Berry, a sergeant in the

Galveston County Sheriff’s Office. Counsel had been questioning Sergeant Berry regarding an

inconsistency in Berry’s testimony about whether he had authored two investigative

reports describing James’s demeanor following the victim’s outcry and James’s subsequent

confession to police:




        3
           Assuming arguendo that the court’s failure to admonish James of the registration
requirement remains subject to harmless-error analysis, under the Anderson factors, James’s
substantial rights were unaffected. See Anderson v. State, 182 S.W.3d 914, 918 (Tex. Crim. App.
2006). The evidence of James’s guilt included his written and videotaped confessions detailing his
three-year sexual relationship with his adopted daughter, the child-victim in this case, as well as the
victim’s extensive testimony during the punishment phase of the trial. James offered no objection
to the admission of his two confessions, nor did he contest any of the allegations made by the victim.
Moreover, while the requirement to register as a sex offender upon parole would actually apply to
James, the fact that he received two life sentences for offenses that would preclude his parole
eligibility until he had served at least thirty years (some time after James’s 80th birthday), diminishes
the likelihood that the failure to admonish in this case would result in actual harm.

                                                   4
        Q.      Let me show you another report if I might. This is indicating original
                investigator Deputy Martinez. May I ask you if you’re able to tell by looking
                at it who generated that report?

        A.      My mistake. This is my supplement. Here’s my name.

        Q.      Exactly. So let’s get back to—since I came up here with this document—

        A.      Okay.

        Q.      —and you realized your innocent mistake, let’s get to this document please.
                On that document does it say that Ken Jones said my client was jovial? Take
                your time.

        [Prosecutor]: Judge, I’m going to ask defense counsel to stop badgering the witness
                      and I would agree to—

        The Court:      He can probably take it. I bet he’s taken a lot more than that.


                James asserts that this remark by the trial court “was an improper comment about the

credibility of a witness,” and that it was prejudicial because the trial court “did not [take] any steps

to cure its own misconduct and essentially placed its stamp of approval on the witness’s testimony.”

                The State responds that the trial court’s statement was merely a response to the State’s

objection to badgering Sergeant Berry on cross-examination and made no reference whatsoever to

the witness’s credibility. According to the State, the trial court’s comment was only a reference to

the witness’s perceived mental or emotional capacity to endure pointed cross-examination, given his

law-enforcement training and background.

                James did not object to the trial court’s comments. Ordinarily, the failure to object

at trial results in forfeiting the complaint on appeal. See Tex. R. App. P. 33.1(a)(1)(A). The

contemporaneous-objection requirement encompasses improper comments by the trial court


                                                   5
concerning matters of weight and credibility.       See Peavey v. State, 248 S.W.3d 455, 470

(Tex. App.—Austin 2008, no pet. h.). However, a plurality of the court of criminal appeals has held

that no trial objection is necessary where the trial judge’s improper comments were fundamental,

reversible error. See Blue v. State, 41 S.W.3d 129, 131-33 (Tex. Crim. App. 2000) (plurality op.).

Fundamental error is present if the judge’s comments imparted information to the jury that “tainted

the presumption of innocence.” Id. at 132. That is not the case here.

               Taken in context, the trial court’s remark merely addressed the State’s objection to

defense counsel’s aggressive cross-examination of the State’s witness. It did not follow any

statement made by the witness, such that it might convey approval of the witness’s testimony. If

anything, the comment was made to explain the court’s reason for not sustaining the State’s

objection and allowing the defense to continue questioning Sergeant Berry in this manner.

Furthermore, any error resulting from this comment could have been cured by an instruction to

disregard. The comment certainly did not constitute fundamental error or deprive James of

due process.

               Absent fundamental error, James needed to object during trial if he believed the

judge’s comment was improper. He did not; therefore, any error is waived. See Tex. R. App. P.

33.1(a). We overrule James’s second issue.


                                        CONCLUSION

               Because the trial court did not commit reversible error in failing to admonish James

of the sex-offender registration requirement, and because any comments made by the trial court did



                                                6
not constitute fundamental error, we resolve James’s points of error against him and affirm the

judgment of conviction.



                                           ___________________________________________

                                           Diane M. Henson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: July 2, 2008

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