1... See TEX. R. APP. P. 47.4.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-06-450-CR

DEREK SANFORD PHELPS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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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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Background Facts

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

indecency with a child by exposure. See TEX. PENAL CODE ANN. § 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. TEX. R. APP. 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. TEX. R. APP. 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
4

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. TEX. R. APP. 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 TEX. R. EVID.

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 WL 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
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

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. Blue, 41 S.W.3d 2

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 TEX. R. APP. 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
6

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

TEX. R. APP. P. 47.2(b)

DELIVERED: April 24, 2008