                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS


                                                    §
  ALBERTO MONTELONGO,                                               No. 08-16-00001-CR
                                                    §
                            Appellant,                                   Appeal from
                                                    §
  v.                                                                 243rd District Court
                                                    §
  THE STATE OF TEXAS,                                             of El Paso County, Texas
                                                    §
                            Appellee.                               (TC # 20150D02224)
                                                    §


                                            OPINION

       A jury convicted Appellant Alberto Montelongo of attempted capital murder of multiple

persons and assault with bodily injury of a family member twice within twelve months. A jury

sentenced Appellant to confinement for a period of 99 years and 10 years, respectively. On

appeal, Appellant raises four issues for our consideration that arise in significant part from the trial

court’s acts and failure to act. We affirm the trial court’s judgment.

                                          BACKGROUND

       Appellant and Blanca Parra met while attending the United States Border Patrol Academy,

and eventually married on February 18, 2014.            Appellant eventually became a firing-range

instructor for Border Patrol, and estimated that he trained between 200 to 500 agents.

       In July 2014, Appellant and Parra separated, and their subsequent attempts at reconciliation
failed, in part because Appellant declined to move into the marital home. Appellant had a separate

home, and as Parra later learned, a lover.

       In December 2014, Parra concluded that she did not want to seek reconciliation and met

Jesus Rodriguez through an online website. They first met in January 2015 and went on several

dates during that month but never had sexual relations. After her third date with Rodriguez on

January 29, 2015, Parra was sleeping in her bed when Montelongo entered her bedroom, and

announced that God had told him to “get his woman to submit to him,” and that he wanted to

reconcile. Appellant became angry when Parra laughed, and when she began looking at her tablet

and ignoring Appellant, he grabbed her by the hair, and struck her head against the bed headboard

to the extent that Parra thought she would lose consciousness. During the one-minute attack,

Appellant informed Parra that she deserved this treatment because she had been unfaithful.

Appellant left and went home to his girlfriend.

       Parra suffered visible injuries to her face, called the sheriff, and subsequently sought a

protective order. Appellant was arrested, and was placed on administrative leave at the Border

Patrol, where he surrendered his service weapon.

       On the evening of February 2, 2015, after parking his car where Parra could not see it and

after observing Rodriguez arrive at Parra’s residence, Appellant approached the front door of the

house, observed Parra and Rodriguez hug and kiss, and then proceeded to enter the house through

the garage where he retrieved a handgun that he stated he had never fired. When Appellant

walked within two feet of Rodriguez, Parra walked between them. Appellant asked Rodriguez

how many times he had sex with Parra, pulled a gun out of his pocket and, holding the gun with

both hands and one finger on the trigger, pointed it at Parra and Rodriguez.


                                                  2
       When Parra’s daughter heard a commotion, entered the kitchen area and saw Appellant

holding the gun, and Rodriguez’ hands in the air, she returned to her bedroom and called 9-1-1.

She eventually escaped through her bedroom window.

       Appellant announced that he was going to kill Parra and Rodriguez, closed one eye, aimed,

fired the gun, and shot Rodriguez in the head above his right eye. Rodriguez crawled to a nearby

bathroom, and Appellant aimed the gun at Parra’s sternum, but the gun jammed and misfired.

Parra grabbed the gun and as she and Appellant struggled for control of the gun, they entered the

kitchen. Appellant released one hand from the gun, and removed a knife from a kitchen drawer.

Parra grabbed Appellant’s hand that was on the knife, while Appellant attempted to hit the gun on

the kitchen counter for the purpose of clearing the jammed round.

       After Sheriff’s Office personnel arrived, a communications robot was deployed which took

a photo of Appellant holding the knife while Parra held his hand that was bearing the knife.

Appellant allowed Parra to retrieve a phone that the Sheriff’s Office personnel had thrown inside

the house, she ran outside.

       Rodriguez underwent cranial surgery and bullet fragments remain lodged in his brain.

Parra suffered cuts to her hands.

                                        DISCUSSION

                                               I.

       In Issue One, Appellant contends the trial court abused its discretion by failing to hold a

hearing on his motion for new trial. We disagree.

                                     Motion for New Trial

       A defendant seeking a new trial must present his motion for new trial to the trial court


                                                3
within 10 days after the motion is filed. TEX.R.APP.P. 21.6. The presentment must result in

actual notice to the trial court and may be evidenced by a hearing date set on the docket. See

Carranza v. State, 960 S.W.2d 76, 79 (Tex.Crim.App. 1998). To be entitled to a hearing on his

motion for new trial, a defendant must first request it. Rozell v. State, 176 S.W.3d 228, 230-31

(Tex.Crim.App. 2005). When a motion for new trial is presented to the trial court, the burden of

ensuring that the hearing thereon is set for a date within the trial court’s jurisdiction is properly

placed on the party presenting the motion, not on the trial judge. See Oestrick v. State, 939 S.W.2d

232, 235-36 (Tex.App.--Austin 1997, pet. ref’d); Crowell v. State, 949 S.W.2d 37, 38 (Tex.App.-

-San Antonio 1997, no pet.). The trial court must rule on the motion within 75 days after imposing

or suspending sentence in open court. TEX.R.APP.P. 21.8(a). A motion not timely ruled on by

written order within the prescribed 75-day period will be deemed denied. TEX.R.APP.P. 21.8(c).

       “It is the duty of the appellate courts to ensure that a claim is preserved in the trial court

before addressing its merits.” Obella v. State, 532 S.W.3d 405, 407 (Tex.Crim.App. 2017),

quoting Wilson v. State, 311 S.W.3d 452, 473 (Tex.Crim.App. 2010). To preserve a complaint

for appellate review, the record must show that the complaining party made a timely motion to the

trial court and the trial court ruled on the motion either expressly or implicitly or refused to rule

on the motion and the complaining party objected to the refusal. TEX.R.APP.P. 33.1(a).

       In this case, the trial court entered judgment in open court on September 30, 2015.

Appellant filed his motion for new trial, which requested a hearing, on October 30, 2015. On

November 19, 2015, the trial court issued an order scheduling the motion to be heard on

December 8, 2015. The scheduling order is evidence that Appellant’s motion was presented to

the trial court. See Carranza, 960 S.W.2d at 79.


                                                 4
        On November 23, 2015, the trial court issued an order canceling the hearing on Appellant’s

motion for new trial, and facsimile transmission logs show that the order was sent to Appellant’s

trial and appellate counsel on that date. The record does not show or indicate the reason for the

trial court’s cancellation of the hearing, nor that the trial court expressly ruled or refused to rule on

the motion. The motion for new trial was overruled by operation of law. TEX.R.APP.P. 21.8(b).

        In the absence of a record showing appellant’s efforts to reschedule the hearing on his

motion for new trial, he cannot complain about the overruling of his motion by operation of law.

See Tello v. State, 138 S.W.3d 487, 496 (Tex.App.--Houston [14th Dist.] 2004), aff’d, 180 S.W.3d

150 (Tex.Crim.App. 2005), citing Johnson v. State, 925 S.W.2d 745, 748 (Tex.App.--Fort Worth

1996, pet ref’d)(defendant had burden to “develop some record, before the expiration of the court’s

jurisdiction, which demonstrated his efforts to reschedule the hearing” on his motion for new trial).

Nothing in the record on appeal shows that Appellant rescheduled or attempted to reschedule the

hearing on the motion for new trial, and Appellant has not developed a record of any effort to

reschedule the hearing. “Where a motion for new trial is overruled by operation of law, the trial

court’s failure to conduct a hearing, without more, is simply a ‘failure to rule’ on the request for a

hearing.” Oestrick, 939 S.W.2d at 235.

        Appellant did not obtain a ruling on his motion for new trial and did not object to a lack of

a ruling on his motion. See Oestrick, 939 S.W.2d at 235; see also Baker v. State, 956 S.W.2d 19,

24-25 (Tex.Crim.App. 1997)(appellant who failed to object to the untimely setting of a motion-

for-new-trial hearing within the 75-day jurisdictional period failed to preserve his complaint that

the trial judge should have held timely hearing). Consequently, Appellant has failed to preserve

this complaint for our review. Issue One is overruled.


                                                   5
                                                 II.

         Appellant next complains that his “6th Amendment right to the effective assistance of

counsel and his right to due process” were denied, in Issue Two, when the trial court repeatedly

threatened to hold defense counsel in contempt, and in Issue Three, when the trial court

erroneously held defense counsel in contempt after the conclusion of voir dire. In Issues Two and

Three, which Appellant presents together, he contends that after the trial court’s contempt ruling,

defense counsel “could not effectively represent Appellant due to a conflict of interest between

protecting himself and defending Appellant.” He asserts that defense counsel did not zealously

represent him because defense counsel feared that “he might be fined or jailed or both.”

         Appellant also argues that defense counsel’s performance was ineffective at trial because

defense counsel conducted a deficient voir dire that failed to address punishment issues, and failed

to present any meaningful punishment evidence, failed to make objections throughout trial, failed

to make objections to improper parole arguments during the State’s closing punishment argument,

failed to make objections to improper non-victim impact evidence, and because he agreed to admit

all of the State’s proffered exhibits. We first consider whether an actual conflict of interest is

shown.

                      Ineffective Assistance of Counsel Based on Conflict of Interest

         An actual conflict of interest which adversely affects a lawyer’s performance is one way

in which a counsel’s assistance may be rendered constitutionally ineffective. Strickland v.

Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).                To establish

ineffective assistance of counsel due to counsel’s conflict of interest, an appellant must show that

counsel had an actual conflict of interest, and the conflict actually colored counsel’s actions during


                                                  6
trial. Acosta v. State, 233 S.W.3d 349, 356 (Tex.Crim.App. 2007)(adopting the rule set out

in Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). The

appellant bears the burden of proof by a preponderance of the evidence on a claim of conflict-of-

interest ineffective assistance, which is to say that if “no evidence has been presented on the issue”

or in the event that “the evidence relevant to that issue is in perfect equipoise,” the appellant’s

claim will fail.    Odelugo v. State, 443 S.W.3d 131, 136-37 (Tex.Crim.App. 2014)(citations

omitted).

          “[A]n ‘actual conflict of interest’ exists if counsel is required to make a choice between

advancing his client’s interest in a fair trial or advancing other interests (perhaps counsel’s own)

to the detriment of his client’s interest.” Acosta, 233 S.W.3d at 355, citing Monreal v. State, 947

S.W.2d 559, 564 (Tex.Crim.App. 1997), quoting James v. State, 763 S.W.2d 776, 779

(Tex.Crim.App. 1989).        A defendant who did not object at trial must demonstrate by a

preponderance of the evidence that an actual conflict of interest adversely affected counsel’s

performance. Cuyler, 446 U.S. at 348; Odelugo v. State, 443 S.W.3d 131, 136-37 (Tex.Crim.App.

2014).

         A mere possibility of a conflict of interest is insufficient to overturn a criminal conviction.

See Cuyler, 446 U.S. at 345, 350. In a conflict-of-interest claim, there is a limited presumption

of prejudice, i.e., “[p]rejudice is presumed only if the defendant demonstrates that counsel ‘actively

represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his

lawyer’s performance.’” Strickland, 466 U.S. at 692, quoting Cuyler v. Sullivan, 446 U.S. at 350,

348, 100 S.Ct. at 1719 (footnote omitted)(until defendant shows counsel actively represented

conflicting interests, he does not establish constitutional predicate for claim of ineffective

                                                   7
assistance). Where no actual conflict of interest exists, we analyze the appellant’s ineffective-

assistance claim under the Strickland test.     See Acosta v. State, 233 S.W.3d 349, 355-56

(Tex.Crim.App. 2007); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).


                                Contempt and Threats of Contempt

       The trial court held defense counsel in contempt at the conclusion of voir dire, but did so

after the twelve jurors selected to hear Appellant’s case had left the courtroom, and while the judge

was speaking to the venirepersons who remained present in the courtroom. On the third day of

trial, the trial court sustained the State’s objection when defense counsel asked Blanca Parra during

cross-examination, “If I shoot a weapon . . . like he did that day, and he approached him, he was

pointing the weapon, and I would have grabbed the weapon, then that muzzle would be hot?”

After the trial court sustained the objection, defense counsel immediately asked Parra, “Correct?,”

and the trial court again stated, “Sustained.” When Defense counsel noted to the trial court,

“That’s my theory, Judge,” the trial court replied, “Sustained, Mr. Cervantes.” Defense counsel

asked Parra, “[Y]ou’re saying that at that time -- was the muzzle hot or not?,” and Parra stated that

she did not remember. Defense counsel again asked whether the gun was hot, the State objected,

and the court again sustained the State’s objection. When defense counsel subsequently asked

Parra, “And you’re telling the jury that you don’t know whether the muzzle was hot or not?,” the

trial court instructed counsel to approach and advised defense counsel, “I sustained that question

two times. The next one, hold you in contempt, and I will. I’m telling you right now, I’m going

to find you in contempt. Do you understand me?”

       Two days later, on the fifth day of trial, after the State had passed a State’s witness for

                                                 8
cross examination, the trial court instructed the prosecutor to return the exhibits to the court’s

reporter, instructed defense counsel to sit down, and thereafter informed defense counsel that he

was permitted to proceed. Defense counsel did not cross-examine the witness, a person who Parra

had met on an internet dating website. After excusing the witness, the trial court instructed

counsel to approach the bench, and then instructed defense counsel, “Mr. Cervantes, next time I

repeat an instruction to you I’m holding you in contempt, and don’t plan on going home. This is

your third admonishment. Do it again, you’re not going home.”1 When defense counsel asked,

“You don’t want me to stand at all?,” the trial court informed trial counsel, “I have told you six

times today, wait until [the prosecutor] sits down. Okay. You insist on jumping up and going to

the podium. It’s going to cost you. Do you understand?” Defense counsel acknowledged that

he understood the trial court’s instruction.

                                                       Analysis

           To support his contentions, Appellant relies on the affidavit he filed in support of his

motion for new trial. However, in addressing Issues Two and Three, we do not consider the

affidavits Appellant filed in support of his motion for new trial.

           A motion for new trial is not self-proving.                Rouse v. State, 300 S.W.3d 754, 762

(Tex.Crim.App. 2009); Jackson v. State, 139 S.W.3d 7, 20 (Tex.App.--Fort Worth 2004, pet.

ref’d), citing Lamb v. State, 680 S.W.2d 11, 13 (Tex.Crim.App. 1984). During a hearing on a

motion for new trial, a trial court may receive evidence by affidavits.                       TEX.R.APP.P. 21.7;

Jackson, 139 S.W.3d at 20. However, an affidavit attached to the motion is merely “a pleading

that authorizes the introduction of supporting evidence” and is not evidence itself. Dugard v.



1
    Appellant’s brief does not direct us to a third admonishment in the record, and we have found none.
                                                           9
State, 688 S.W.2d 524, 528, 529 (Tex.Crim.App. 1985), overruled on other grounds by Williams

v. State, 780 S.W.2d 802, 803 (Tex.Crim.App. 1989); Jackson, 139 S.W.3d at 20, quoting

Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex.Crim.App. 1973). To constitute evidence, the

affidavit must be introduced as evidence at the hearing on the motion. Rouse, 300 S.W.3d at 762;

Stephenson, 494 S.W.2d at 909-10; Jackson, 139 S.W.3d at 20. Because the affidavits in support

of Appellant’s motion were not introduced in evidence at a hearing, they constitute mere pleadings,

and are not evidence. Jackson, 139 S.W.3d at 21.

       We do not find Appellant’s complaints to be well-founded in the trial record on appeal.

We find nothing in the record that supports Appellant’s contention that the trial court’s contempt

ruling created an actual conflict of interest between defense counsel’s interests and those of

Appellant. The trial court’s post-voir dire contempt ruling was made outside the presence of the

jury at a time when the judge was addressing the non-selected venire panel regarding the

importance of jury service. Defense counsel was not advocating on behalf of Appellant and had

no advocacy role during the time the trial court addressed the remaining venirepersons after voir

dire had concluded and the jury had been selected and removed from the courtroom.

       Regarding the trial court’s two other contempt admonishments occurring on the third and

fifth days of trial, Appellant presents no evidence on the issue to show an actual conflict of interest,

that is, that counsel was required to make a choice between advancing Appellant’s interest in a fair

trial or advancing other interests to the detriment of Appellant’s interest. See Odelugo, 443

S.W.3d at 136-37; Acosta, 233 S.W.3d at 355; Monreal, 947 S.W.2d at 564; James, 763 S.W.2d

at 779. Nothing in the record shows that defense counsel did not zealously represent Appellant

because defense counsel harbored fear that “he might be fined or jailed or both” as asserted in


                                                  10
Appellant’s brief. The record bears no information showing what interest, if any, defense counsel

may have had that conflicted with and may have been detrimental to Appellant’s interests.

Because no actual conflict of interest is demonstrated in the trial record, we analyze the appellant’s

ineffective-assistance claim under the two-pronged Strickland test. See Acosta, 233 S.W.3d at

355-56; Strickland, 466 U.S. at 687.

                                 Ineffective Assistance of Counsel

       To prevail on a claim of ineffective assistance of counsel, the appellant must show that

counsel’s performance was deficient and that the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” Id. at 686, 104 S.Ct. 2064. The appellant bears the burden of

proving by a preponderance of the evidence that counsel was ineffective. Thompson v. State, 9

S.W.3d 808, 813 (Tex.Crim.App. 1999). Whether an appellant received effective assistance

of counsel is founded on the facts of each case. Id.

       Counsel’s performance is deficient if it falls below an objective standard of

reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. 2052.           “It is not sufficient that the

appellant show, with the benefit of hindsight, that his counsel’s actions or omissions during trial

were merely of questionable competence. Instead, the record must affirmatively demonstrate trial

counsel’s alleged ineffectiveness.” Mata v. State, 226 S.W.3d 425, 430 (Tex.Crim.App. 2007).

The defendant must overcome “the strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance” and that the conduct constituted sound trial


                                                 11
strategy. Prine v. State, 537 S.W.3d 113, 116-17 (Tex.Crim.App. 2017), quoting Thompson, 9

S.W.3d at 813; Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992).

       To defeat this presumption, “[a]ny allegation of ineffectiveness must be firmly founded in

the record and the record must affirmatively demonstrate the alleged ineffectiveness.”

McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Trial counsel should generally

be given an opportunity to explain his actions before being found ineffective. Rylander v. State,

101 S.W.3d 107, 111 (Tex.Crim.App. 2003).

       Courts will not speculate to find counsel ineffective. Ex parte Flores, 387 S.W.3d 626,

633 (Tex.Crim.App. 2012). We presume a reasonable trial strategy if any can be objectively

plausible. Id. In the absence of evidence of counsel’s reasons for the challenged conduct, we

commonly will assume a strategic motivation if any can possibly be imagined and will not

conclude the challenged conduct constituted deficient performance unless the conduct was so

outrageous that no competent attorney would have engaged in it. See Ex parte Saenz, 491 S.W.3d

819, 828 (Tex.Crim.App. 2016), quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.

2001)(internal citations omitted); see also Goodspeed v. State, 187 S.W.3d 390, 392

(Tex.Crim.App. 2005)(faced with undeveloped record, court should find counsel ineffective only

if conduct was so outrageous that no competent attorney would have engaged in it).

       To effectively argue an issue of ineffective assistance of counsel, a record focused on the

conduct of trial or appellate counsel should be developed. This is often best achieved in the

context of a hearing held in relation to an application for writ of habeas corpus. See Jackson v.

State, 877 S.W.2d 768, 772 n.3 (Tex.Crim.App. 1994)(Baird J. concurring)(noting also that

although such record may be developed during a hearing on a motion for new trial, doing so is


                                               12
most often impractical because of the time constraints under the rules of appellate procedure, and

because the trial record generally has not been prepared within the timeframe necessary to permit

use of the trial record during the new-trial hearing). The record on direct appeal is generally

insufficient to show that counsel’s performance was deficient. Bone v. State, 77 S.W.3d 828, 833

(Tex.Crim.App. 2002).

                                              Analysis

       Although Appellant has phrased Issues Two and Three in terms of a denial of right to

counsel and due process arising from the trial court’s contempt ruling and threats of making

additional contempt rulings, he also contends defense counsel’s performance was deficient

throughout trial. In support of his contention that defense counsel rendered ineffective assistance

at trial, Appellant complains that during voir dire, defense counsel failed to address punishment

issues, and that during trial defense counsel did not present meaningful punishment evidence, did

not object throughout trial, failed to object to improper parole arguments during the State’s closing

punishment argument and to improper non-victim impact evidence, and also agreed to admit all of

the State’s proffered exhibits.

       Appellant does not specify what punishment issues defense counsel should have addressed

during voir dire, nor does he identify what meaningful evidence should have been presented during

punishment. Appellant does not specify the objections he believes defense counsel should have

made “throughout trial,” and does not attempt to specify or direct us to the allegedly improper non-

victim impact evidence and punishment arguments to which he suggests defense counsel should

have voiced objection. Appellant does not suggest why defense counsel should not have agreed

to the admission of the State’s proffered exhibits. Moreover, at no time does Appellant attempt


                                                 13
to show that defense counsel’s allegedly deficient performance prejudiced his defense, and after

review, we conclude the record does not affirmatively demonstrate trial counsel’s alleged

ineffective assistance.

           In light of this undeveloped record which does not include trial counsel’s explanations for

his acts or omissions or his trial strategy, we are unable to conclude that defense counsel’s conduct

was so outrageous that no competent attorney would have engaged in it. Simply stated, Appellant

has failed to meet his burden of proving by a preponderance of the evidence that counsel was

ineffective, and has failed to overcome the strong presumption that defense counsel’s conduct fell

within the wide range of reasonable professional assistance and constituted sound trial strategy.

Issues Two and Three are overruled.

                                                           III.

           In Issue Four, Appellant complains he was denied his right to a fair and impartial trial when

the trial judge admonished prospective jurors who asserted they could not sit in judgment of others,

and accused another prospective juror of attempting to avoid jury duty.2 Appellant asserts that

because of the complained-of interactions, jurors were unlikely to answer the litigants’ questions

in a truthful manner for fear of reprisal by the trial court.

                                                Preservation of Error

           To preserve error regarding improper voir dire questions, a party must make a timely,

specific objection at the earliest possible opportunity.                     TEX.R.APP.P. 33.1(a)(generally, to

preserve an alleged error for appellate review, the record must show that the complaining party

raised the issue with the trial court in a timely and specific request, objection, or motion and



2
    The venirepersons with whom the trial court interacted did not serve as jurors at Appellant’s trial.
                                                            14
obtained a ruling or objected to the court’s refusal to rule); Ross v. State, 154 S.W.3d 804, 807

(Tex.App.--Houston [14th Dist.] 2004, pet. ref’d); see also Griggs v. State, 213 S.W.3d 923, 927

(Tex.Crim.App. 2007); McLean v. State, 312 S.W.3d 912, 915 (Tex.App.--Houston [1st Dist.]

2010, no pet.). However, Texas Rule of Evidence 103(e) provides that, “In criminal cases, a court

may take notice of a fundamental error affecting a substantial right, even if the claim of error was

not properly preserved.”       TEX.R.EVID. 103(e); see Jasper v. State, 61 S.W.3d 413, 420

(Tex.Crim.App. 2001)(where appellant claimed that his right to fair trial by impartial jury was

violated by comments of the trial judge, but appellant did not object at trial, it is within province

Court to “take notice of fundamental errors affecting substantial rights although they were not

presented to the court,” pursuant to Texas Rule of Evidence 103(d), now Rule 103(e)); McLean v.

State, 312 S.W.3d 912, 915 (Tex.App.--Houston [1st Dist.] 2010, no pet.)(applying former Rule

103(d), which provided, “In a criminal case, nothing in these rules precludes taking notice of

fundamental errors affecting substantial rights although they were not brought to the attention of

the court.”).

          As the State correctly observes, Appellant did not object to the trial court’s comments

during voir dire. TEX.R.APP.P. 33.1(a). Therefore, the alleged error is not preserved for our

consideration unless the error was fundamental and affected a substantial right. TEX.R.EVID.

103(e).

          The Sixth Amendment to the United States Constitution guarantees a trial before an

impartial jury. U.S. CONST. amend. VI. The process of voir dire is designed to effectuate a

defendant’s right to a fair trial by insuring, to the fullest extent possible, that the jury will be

intelligent and impartial. Armstrong v. State, 897 S.W.2d 361, 368 (Tex.Crim.App. 1995); see


                                                 15
also Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002)(trial court has broad discretion

over the process of selecting a jury).

       In Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App. 2000)(plurality op.), a plurality of

the Court 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.” In Jasper, 61 S.W.3d at 421, the Court of Criminal Appeals subsequently

determined that even if its plurality opinion in Blue was binding, the trial court’s comments in

Jasper had failed to rise to “such a level as to bear on the presumption of innocence or vitiate the

impartiality of the jury.” The Court therefore concluded that the trial court’s alleged improper

comments were not fundamental error. Id.

       In this case, the trial court questioned Veniremember 5 after she affirmatively answered

the State’s question which asked whether anyone felt he or she could not “judge the credibility of

another” for religious reasons. When asked by the trial court, Veniremember 5 acknowledged

that she was serving on a grand jury. The trial court asked whether the juror judged 20-30 people

every day during grand jury, noted that this meant she was passing judgment and indicting

someone who would stand trial, and asked whether she understood the prosecutor’s question and

what she does as a member of the grand jury. The juror’s response indicated her awareness of

her role in the grand jury, and although the trial court had clarified that Appellant’s charge was for

attempted murder, the juror noted that she had not indicted murder cases. The trial court then

commented, “So as long as you don’t know the defendant, you don’t . . . have a problem passing

judgment? Have a seat, ma’am.”

       After this exchange, Veniremember 40 voiced her feeling that she could not “judge the


                                                 16
credibility” of another. She was followed by Veniremember 51 who also acknowledged an

inability to “judge the credibility” of someone. When Veniremember 55 next stood in response

to the same question by the State, the trial court interjected:

         Let me -- did you people understand that question? Because it seems to me you
         pass judgment on people every single day.

         Single ladies, let me see your hands. Ever been asked out before in your life? Did
         you pass judgment? ‘He’s kind of ugly.’ ‘Not my type.’ ‘Doesn’t have a car.’
         Did you not pass judgment on another human being? Now, look, ladies, I’m not
         saying it’s going to be -- you know, have Smiling Jack pick you up and take you to
         the bus stop, have a nice dinner, McDonalds, come back home. Did you or did
         you not pass judgment on him? Did you understand the question? Can you judge
         another person?

         Stranger walks up to you. ‘I don’t’ want to talk to you. I don’t want to talk to
         you.’ Did you not pass judgment? All right.

The trial court then asked Veniremember 51 whether she understood the question, and she

answered, “Yes, sir.” When the trial court asked whether she had never passed judgment,

Veniremember 51 stated, “I honestly try not to.” The trial court asked Veniremember 51 whether

she had ever applied for a job and had judged the person interviewing her, and Veniremember 51

repeated that she tries not to judge others. When the trial court noted that it had not asked her

whether she tries not to judge others and asked, “You’re telling me you can’t pass judgment on a

human being?”       Veniremember 51 stated, “I shouldn’t.”        The trial court asked whether

Veniremember 51 passes judgment regarding the manner in which her sister and other women

dress.    Veniremember 51 answered, “Not my place,” and when the trial court asked

Veniremember 51 whether she ever passes judgment on the way people act in clubs, she answered,

“Yes, sir.” The trial court then asked, “Why would you pass judgment on other people? They’ve

got a right to act any way they want in a club. Sit down, 51.”


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       Prior to concluding its voir dire, the State asked the venire, “Is there anything or anyone

that I missed that would like to address the Court about serving on this jury, before I sit down, that

maybe you might not be the appropriate juror for this particular case?” Five veniremembers

raised issues, including Veniremember Number 40 who asked whether an inquiry had been made

regarding jury service in the preceding 24 months. The State’s prosecutor clarified that the trial

court had asked the question and noted that the veniremember could approach on that matter later

in the proceedings. The trial court asked, “Ma’am, you’re not trying to get out of jury, are -- jury

duty, are you?” and as Veniremember Number 40 began to answer, the trial court responded, “Then

have a seat. Thank you.” When defense counsel posed questions of the venire during voir dire,

veniremembers responded to questions posed.

       In support of his contention that the trial court’s comments rendered jurors unlikely to

answer the litigants’ questions honestly for fear of reprisal, such the comments constitute

reversible error that may be raised for the first time on appeal, Appellant directs us to Drake v.

State, 465 S.W.3d 759, 764 (Tex.App.--Houston [14th Dist.] 2015, no pet.). In Drake, our sister

court determined that a trial judge’s comments on the case and its decision to arrest a

veniremember who stated that his religious beliefs prevented him from viewing certain evidence

had a chilling effect on the jury that prevented a meaningful and substantive voir dire, which

precluded a fair and impartial trial. Drake, 465 S.W.3d at 764.

       Here, no veniremember was subjected to arrest, sanction, reprisal, or dismissed on religious

grounds. The record does not reveal that the trial court’s comments had a chilling effect on the

jurors or deprived Appellant of a fair and impartial trial. Despite the trial court’s comments,

veniremembers continued to respond to questions posed by the State and defense counsel during


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voir dire.

        We conclude the trial court’s comments in this case did not rise to “such a level as to bear

on the presumption of innocence or vitiate the impartiality of the jury.” See Jasper, 61 S.W.3d at

421. Accordingly, because the trial court’s voir dire comments do not constitute fundamental

error, Issue Four is overruled.

                                                  IV.

        The trial court certified Appellant’s right to appeal in this case, but the certification does

not bear Appellant’s signature indicating that he was informed of his rights to appeal and to file a

pro se petition for discretionary review with the Texas Court of Criminal Appeals. See

TEX.R.APP.P. 25.2(d). The certification is defective, and has not been corrected by Appellant’s

attorney or the trial court. To remedy this defect, this Court ORDERS Appellant’s attorney,

pursuant to Rule 48.4, to send Appellant a copy of this opinion and this Court’s judgment, to notify

Appellant of his right to file a pro se petition for discretionary review, and to inform Appellant of

the applicable deadlines. See TEX.R.APP.P. 48.4, 68. Appellant’s attorney is further ORDERED,

to comply with all of the requirements of Rule 48.4.

                                          CONCLUSION

        The trial court’s judgment is affirmed.


August 31, 2018
                                       ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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