                                      NUMBER 13-07-548-CR

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


ANTONIO CORTEZ,                                                                                  Appellant,

                                                        v.

THE STATE OF TEXAS ,                                                                             Appellee.


    On appeal from the 28th District Court of Nueces County, Texas.


                                MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Yañez and Benavides
                Memorandum Opinion by Justice Yañez

        A jury found appellant, Antonio Cortez, guilty of one count of felony driving while

intoxicated1 and one count of intoxication assault.2 The trial court assessed a sentence of


        1
          See T E X . P EN AL C OD E A N N . § 49.04(a) (Vernon 2003); id. § 49.09(b)(2) (Vernon Supp. 2008)
(providing that an offense under § 49.04 "is a felony of the third degree if it is shown . . . that the person has
previously been convicted . . . two tim es of any other offense relating to the operating of a m otor vehicle while
ten years' imprisonment.3 By two issues, appellant contends that: (1) comments by the

trial court constituted fundamental error; and (2) he was denied due process and a fair trial

when the trial court overruled his objection to a question the prosecutor asked a witness.

                                                    I. BACKGROUND

        As this is a memorandum opinion, and the parties are familiar with the facts, we will

not recite them here except as necessary to explain the Court's decision and the basic

reasons for it.4

                                            II. TRIAL COURT'S COMMENTS

        By his first issue, appellant argues that the trial court made comments to the jury

that: (1) violated article 38.05 of the code of criminal procedure;5 and (2) constituted

fundamental error.6 The State contends that appellant did not preserve error because he

did not object to the trial court's remarks.

        In its opening remarks to the jury, the trial court stated that it would explain how the

criminal trial would proceed in this case. The trial court explained, among other things,

that: (1) it would read instructions to the jury; (2) the State would read the indictment; (3)



intoxicated").

         2
           See id. § 49.07(a)(1) (Vernon Supp. 2008); id. § 49.07(c) (establishing that an offense under section
49.07 is a third degree felony).

        3
          See id. § 12.34 (Vernon 2003) (providing that the punishm ent range for a third degree felony is
im prisonm ent of two to ten years, plus an optional fine of $10,000).

        4
            See T EX . R. A PP . P. 47.4.

        5
            See T EX . C OD E C R IM . P R O C . A N N . art 38.05 (Vernon 1979).

        6
          See Blue v. State, 41 S.W .3d 129, 132 (Tex. Crim . App. 2000) (en banc) (plurality opinion)
(concluding that the appellant was not required to object to the trial court's im proper com m ents to preserve
error because the com m ents rose to the level of fundam ental error).

                                                              2
the defendant would enter his plea; (4) both sides would present an opening statement;

(5) the State would present testimony; (6) the defendant would have an opportunity to

present evidence if he decided to do so; (7) the defendant would rest his case; (8) the

State would have an opportunity to present rebuttal evidence; (9) when both sides

completed presenting evidence, the trial court would read the charge to the jury; (10) each

attorney would argue its case to the jury; and (11) the jury would begin deliberations. The

trial court then stated, "If the jury reaches a verdict, you will be returned back into the

courtroom so the verdict may be read in open court. If the jury reaches a verdict, then at

that point, your duty will be completed, since the Court will be assessing punishment on

this case and you will be discharged." (Emphasis added).

        Appellant first argues that the trial court's comments violated article 38.05; however,

appellant did not make a timely objection to the trial court pursuant to article 38.05.7

Therefore, he has not preserved this issue for appellate review.8

        Relying on Blue v. State, appellant next argues that it was fundamental error when

the trial court stated, "If the jury reaches a verdict, then at that point, your duty will be

completed, since the Court will be assessing punishment on this case and you will be



        7
           See Moore v. State, 907 S.W .2d 918, 923 (Tex. App–Houston [1st Dist.] 1995, pet. ref'd) (holding
that "the article 38.05 right to prohibit the judge from com m enting on the weight of the evidence or conveying
his opinion of the case . . . is . . . forfeitable by inaction"); see also W ead v. State, No. 13-00-015-CR, 2005
Tex. App. LEXIS 5643, at *3-4 (Tex. App.–Corpus Christi July 21, 2005, no pet.) (not designated for
publication) (setting out that "an objection is required to preserve an article 38.05 argum ent for appellate
review") (citing Moore, 907 S.W .2d at 923); see also T EX . R. A PP . P. 33.1.

        8
          See Peavey v. State, 248 S.W .3d 455, 470 (Tex. App–Austin 2008, pet. ref'd) (concluding that
appellant did not preserve error because he did not m ake a tim ely objection to the trial court's com m ents and
that an article 38.05 objection is forfeited by inaction); Davis v. State, 177 S.W .3d 355, 363 (Tex.
App.–Houston [1st D ist] 2005, no pet.) (en banc) (determ ining that appellant failed to preserve error
concerning a com plaint that the trial court com m ented on the weight of the evidence because his trial
objection was not tim ely).

                                                       3
discharged."9 (Emphasis added). We disagree. There is no majority opinion in Blue,

therefore it is not binding precedent.10 However, even if it were, it would not affect our

analysis. The trial court was explaining the procedure that would be followed if the jury

returned a verdict—guilty or not guilty. The record reveals that appellant elected for the

trial court to assess punishment. Therefore, the trial court correctly informed the jury that

the trial court would be assessing punishment. The trial court's comments did not imply

that it believed that appellant was guilty, as appellant argues. We conclude that the trial

court's comments did not constitute fundamental error because the comments did not taint

the presumption of innocence.11 Accordingly, we overrule appellant's first issue.

                                       III. PROSECUTOR 'S CONDUCT

         By his second issue, appellant contends that the trial court erred when it overruled

his objection to alleged improper testimony by the prosecutor during the redirect

examination of Mercy Armenta, a witness for the State. Appellant cites the following

colloquy:

         [Prosecutor]:             Do you remember telling me that [appellant] was
                                   driving, you just don’t want to get him in trouble?



         9
          See Blue, 41 S.W .3d at 132-33 (concluding that the appellant was not required to object to the trial
court's im proper com m ents to preserve error because "the judge's com m ents im parted inform ation to the
venire that tainted the presum ption of innocence").

         10
            See Jasper v. State, 61 S.W .3d 413, 421 (Tex. Crim . App. 2001) (explaining that even if it were
bound to follow the plurality opinion of Blue, the trial court's com m ents did not rise to the level of fundam ental
error); Peavey, 248 S.W .3d at 471 ("The plurality opinion in Blue is not binding precedent that m ust be
followed.").

         11
           See Jasper, 61 S.W .3d at 421 ("None of the trial judge's com m ents rose to such a level as to bear
on the presum ption of innocence or vitiate the im partiality of the jury."); Hernandez v. State, 507 S.W .2d 209,
211 (Tex. Crim . App. 1974) (concluding the trial court’s statem ent, “That’s fine. You can try that on appeal.”
did not rise to the level of fundam ental error and could have been corrected with a jury instruction to
disregard).

                                                         4
        [Armenta]:                    No, I never—

Defense counsel objected stating, "I’m going to object that’s making him [the prosecutor]

a witness." The trial court overruled the objection. Then the following exchange occurred:

        [Prosecutor]:                 So you don't recall that?

        [Armenta]:                    No, I have never done that.

        [Prosecutor]:                 The very first time we met?

        [Armenta]:                    No.

        [Prosecutor]:                 And I asked you if you were intoxicated when some of
                                      the staff smelled [sic] you of drinking here at the
                                      courthouse?

        [Armenta]:                    No.

        [Prosecutor]:                 And you told me, no, you weren't intoxicated?

        [Armenta]:                    No.

        [Prosecutor]:                 And you told me he couldn't get in trouble--

        [Armenta]:                    I never said that.

        [Prosecutor]:                 That he was driving. And--

        [Armenta]:                    I never said that.

Here, when the prosecutor again stated that Armenta told him that appellant was driving

and could not get in trouble, appellant did not object to the prosecutor's remarks.12

Therefore, appellant did not preserve error because he did not object every time the

allegedly inadmissible evidence was offered.13 We overrule appellant’s second issue.

        12
             See T EX . R. A PP . P. 33.1.

        13
           See Leday v. State, 983 S.W .2d 713, 718 (Tex. Crim . App. 1998) (en banc) (providing that
overruling an objection to evidence will generally not result in reversal when other evidence of the sam e fact
was received, either before or after the com plained of ruling); Ethington v. State, 819 S.W .2d 854, 858 (Tex.

                                                       5
                                               III. CONCLUSION

        We affirm the trial court's judgment.


                                                             LINDA REYNA YAÑEZ,
                                                             Justice


Do not publish. TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and filed
this the 13th day of August, 2009.




Crim . App. 1991) ("[I]t is well settled that an error in adm ission of evidence is cured where the sam e evidence
com es in elsewhere without objection; defense counsel m ust object every tim e allegedly inadm issible
evidence is offered."); see also Fuentes v. State, 991 S.W .2d 267, 273 (Tex. Crim . App. 1999) (concluding
that the appellant waived any com plaint to the trial court's alleged im proper rem arks because he did not renew
his objection when the trial court repeated the com plained of rem arks virtually verbatim ).

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