                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00091-CR

WILLIAM CHARLES WEBB,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                      From the County Court at Law No. 2
                          McLennan County, Texas
                         Trial Court No. 20102004CR2


                          MEMORANDUM OPINION


      Raising three issues, William Webb appeals his misdemeanor conviction for

criminal mischief ($50 or more but less than $500) and 180-day jail sentence with a

$2,000 fine. The alleged criminal mischief was Webb’s breaking his ex-girlfriend’s car

window with a rock.

      In his first issue, Webb asserts that a comment by the trial judge during voir dire

tainted his presumption of innocence and adversely affected his right to a fair trial. At

the beginning of voir dire, the trial judge stated to the jury panel: “”I’m the Judge of
County Court at Law No. 1. I’ll be presiding over this case. Actually, it was filed in

another court and there was a conflict of interest there, so it was sent to my court to

handle.”

        Webb, who represented himself at trial, did not object. We assume without

deciding that a timely and specific objection was not required. See Blue v. State, 41

S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.) (“comments of the trial judge,

which tainted appellant’s presumption of innocence in front of the venire, were

fundamental error of constitutional dimension and required no objection”); see also

Mason v. State, 237 S.W.3d 800, 802, 805 (Tex. App.—Waco 2007, pet. ref’d).

        Webb contends that the trial judge’s comment that there was a “conflict of

interest” alerted the jury panel that Webb had a prior criminal background and tainted

the presumption of innocence. Webb argues that the “obvious implication” from the

statement was that the newly elected judge of County Court at Law No. 2 could not

preside over Webb’s trial because he had previously represented Webb in a criminal

case.

        We agree with the State that the statement did not prejudice Webb in any way.

The statement did not refer to Webb or any act by him. The trial judge expressed no

opinion about Webb nor directly gave the jury any impression that Webb had a criminal

record. Moreover, given the general content of the statement, there is no connection

between the conflict of interest and Webb’s having a criminal record. The statement

does not implicate a prior representation of Webb in a criminal case. We overrule issue

one.

Webb v. State                                                                    Page 2
       We next turn to Webb’s third issue, which asserts that the trial court erred in

failing to instruct the jury, sua sponte, that it could not consider extraneous-offense

evidence, in assessing punishment, unless it found that the extraneous offenses were

proved beyond a reasonable doubt. The State agrees that the trial court should have

given this instruction. See Delgado v. State, 235 S.W.3d 244, 252 (Tex. Crim. App. 2007)

(“the trial judge must sua sponte instruct the jury at the punishment phase concerning …

the fact that the State must prove any extraneous offenses beyond a reasonable doubt”).

       We thus review the error for egregious harm. Martinez v. State, 313 S.W.3d 358,

365 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); see Almanza v. State, 686 S.W.2d 157

(Tex. Crim. App. 1985) (op. on reh’g) (holding that unobjected-to jury charge error will

not result in reversal in the absence of “egregious harm”). In examining the record for

egregious harm, we consider the entire jury charge, the state of the evidence, the final

arguments of the parties, and any other relevant information revealed by the record of

the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury

charge error is egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218

S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.

App. 2006).

       Despite the omitted instruction on extraneous-offense evidence, the charge did

state: “The burden of proof in all criminal cases rests upon the State throughout the

trial and never shifts to the defendant.”



Webb v. State                                                                        Page 3
       The State presented evidence of Webb’s extensive criminal record consisting of

numerous convictions, including two felony convictions, and several cases that were

dismissed in connection with guilty pleas in other cases. Webb did not object to their

admission, and when he testified, he did not deny his prior criminal record.

       The victim and a detective collectively testified to the following extraneous

offenses allegedly committed by Webb: another occasion where Webb allegedly broke

another window on the victim’s car; and Webb allegedly put water in the victim’s gas

tank and put a water hose in the victim’s dryer vent at her house. Another extraneous

offense was Webb’s allegedly sending threatening letters to the victim while he was in

jail, in violation of a protective order. At the time of trial, that charge was still pending,

but on cross-examination, Webb admitted to sending the letters. He also did not deny

committing any of the alleged extraneous offenses.

       In closing argument, in addition to discussing Webb’s prior convictions, the State

generally mentioned the several unadjudicated extraneous offenses against the victim.

Webb’s argument included his statement that he had “paid [his] dues” for the crimes he

had committed, but he did not address the several unadjudicated extraneous offenses.

The State did not discuss them in rebuttal.

       Viewing the record as a whole, and especially considering Webb’s undisputed

and extensive history of criminal convictions and his admission to writing the

threatening letters to the victim and thus violating the protective order, we cannot say

that egregious harm occurred in the punishment phase. Issue three is overruled.




Webb v. State                                                                           Page 4
       Webb’s second issue complains that the judgment is defective because, in reciting

the jury’s punishment verdict, it erroneously reflects the jury found Webb guilty of the

offense of “assault family violence,” rather than criminal mischief. We agree with the

parties’ suggestions that we should modify the judgment to correct this clerical error.

See TEX. R. APP. P. 43.2(b). Accordingly, we sustain the second issue, and the judgment

is modified to state that, in the jury’s verdict on punishment, the jury had found Webb

guilty of the offense of criminal mischief.

       Webb also points out that the sixth sentence in the judgment incorrectly refers to

him as “her;” accordingly, we modify that sentence to reflect that “the Court found him

guilty of the offense of CRIMINAL MISCHIEF.”

       As modified, we affirm the trial court’s judgment.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed October 18, 2012
Do not publish
[CR25]




Webb v. State                                                                      Page 5
