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Dunn v. State8/19/2004
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We find no error in the reference to Appellant’s prior DWI convictions during voir dire. Hollen, 117 S.W.3d at 802. Moreover, it was Appellant, not the trial court, who decided to forego the stipulation. The State had to admit either a stipulation or the actual judgments from the prior convictions to satisfy the jurisdictional element of felony DWI. See id. at 801. The State admitted the judgments. Appellant was asked numerous times by the trial court whether he wished to enter his stipulation. During voir dire, the parties retired to chambers. The trial court received Appellant’s stipulation and asked him whether he wanted the court to read the stipulation to the venire panel. Appellant answered no. After voir dire was completed, the judge asked Appellant whether he wanted to withdraw his stipulation. The discussion ended with the judge stating he would allow Appellant to withdraw his stipulation. Appellant made no objection. Near the end of the State’s case-in-chief, the trial court again gave Appellant the opportunity to stipulate to his prior convictions. Appellant declined. And when the State admitted the judgments of conviction, Appellant did not object. .
Appellant cannot refuse to have the stipulation entered into evidence and then complain about its erroneous denial. In order to preserve error for appeal, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that: (a) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (b) that the trial court ruled on the request, objection, or motion either expressly or implicitly; or refused to rule on the request and the complaining party objected to that refusal. Tex.R.App.P. 33.1. Appellant made no complaint regarding the denial of his stipulation or the admission of the judgments, a fact which he concedes.
Instead, he asks that we take notice of fundamental error affecting substantial rights although the error was not brought to the attention of the court. Appellant argues that remarks made to a jury panel by the judge, which imparted information to the venire that tainted the presumption of innocence constituted fundamental error and required no objection. We can perceive no error inasmuch as prior convictions are a legitimate subject of voir dire. See Hollen, 117 S.W.3d at 802. To the extent he argues that the judgments contained information relating to the punishment he received, and that his probation had been revoked in one case, his failure to object waives error. Point of Error No. One is overruled.
MOTION FOR MISTRIAL
In Point of Error No. Two, Appellant contends the trial judge commented during voir dire that he did not know Appellant had stipulated to his prior convictions and that “ here’s a mistrial here.” Later, defense counsel expressed his belief that a mistrial was warranted since the jury had been prejudiced. The court denied the mistrial.
The denial of a motion of mistrial is reviewed under an abuse of discretion standard. Trevino v. State, 991 S.W.2d 849, 850 (Tex.Crim.App. 1999), State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993). To establish an abuse of discretion, the defendant must show he suffered actual prejudice from the denial of his motion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App. 2002); Wright v. State, 28 S.W.3d 526, 532 (Tex.Crim.App. 2000), cert. denied, 531 U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001). The decision to grant a mistrial is left to the discretion of the trial court. Ladd v. State, 3 S.W.3d 547,
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