IN THE

TENTH COURT OF APPEALS

No. 10-03-163-CR

     WILLIAM GEORGE WILKINS III,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # F36692

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Appellant William George Wilkins III has filed a motion requesting that this Court withdraw Appellant’s notice of appeal and dismiss this appeal. In relevant portion, Rule 42.2 of the Texas Rules of Appellate Procedure states:

(a) At any time before the appellate court’s decision, the appellate court may dismiss the appeal if the party that appealed withdraws its notice of appeal—by filing a written withdrawal in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk. An appellant must personally sign the written withdrawal.

Tex. R. App. P. 42.2(a). We have not issued a decision in this appeal. The motion is signed by Wilkins. See id. A copy has been sent to the trial court clerk. Id.

      This appeal is dismissed.

 

                                                            PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Dismissed

Opinion delivered and filed July 9, 2003

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with the State that Dunigan’s second issue is multifarious and improperly briefed.  Accordingly, the issue is overruled.

Fair Trial

Dunigan contends in his third issue that he was denied the right to a fair and impartial trial under Article I, Section 10 of the Texas Constitution because of statements the trial court made during voir dire and because the trial court denied him a full record for purposes of appeal.  The State asserts that the first part of Dunigan’s issue was not preserved because Dunigan failed to object to the trial court’s statements.  Dunigan maintains that the comments by the trial court tainted the presumption of innocence and was fundamental error which required no objection. 

Texas Rule of Appellate Procedure 33.1 provides that, in general, as a prerequisite to presenting a complaint for appellate review, the record must show a timely, specific objection and a ruling by the trial court.  Tex. R. App. P. 33.1.  See Layton v. State, 280 S.W.3d 235, 238 (Tex. Crim. App. 2009); Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004).  Unpreserved error may be reviewed if the error is a fundamental error that affects a defendant's substantial rights.  Tex. R. Evid. 103(d); Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993).  However, there are few rights that must be affirmatively waived and may therefore be raised for the first time on appeal.  Marin, 851 S.W.2d at 280. 

Dunigan takes issue with the following statements by the trial court at the beginning of voir dire.

All right.  And Mr. Dunigan is charged with the offense of evading arrest with a vehicle.  That is a felony offense in the State of Texas.  To evade arrest with a vehicle, that is while a – if you evade arrest with a vehicle while an officer is attempting to detain or arrest you and you evade arrest or detention or stop with a vehicle, that is a felony offense in the State of Texas.  One thing it doesn’t mean, it is not a defense to the offense of evading arrest whether you actually did anything to cause the officer to stop you or try to stop you or detain you or arrest you. 

***

            As I said, attempting to arrest or detain somebody.  A police officer doesn’t have to be able to prove at the time he’s attempting to arrest or detain you or to investigate an offense, he’s not required to be able to prove at that point in time beyond a reasonable doubt that a defendant did do something.

 

            They’re required to have a reasonable suspicion to detain, have a probable cause to arrest.  They have those lower standards that may be applicable.  But the fact that that doesn’t turn out and a defendant did not commit the offense of which they were attempting to detain or evade or flee – still doesn’t give the citizenry the right to flee, even though they’re not guilty.

 

After reviewing these statements, we find they did not rise to such a level as to “bear on the presumption of innocence or vitiate the impartiality of the jury” and therefore do not implicate the doctrine of fundamental error.  Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001).  Therefore, Dunigan was required to object to preserve this issue for our review.  He did not.  This portion of Dunigan’s third issue is not preserved.

The second part of Dunigan’s third issues involves his ability, or lack thereof, to review for appeal the DVD that had been admitted in evidence.  There is nothing in the appellate record that supports Dunigan’s complaint.

Accordingly, Dunigan’s third issue is overruled.

Conclusion

            Having overruled each issue presented, we affirm the judgment of the trial court.

 

                                                                        TOM GRAY

                                                                        Chief Justice

 

Before Chief Justice Gray,

            Justice Davis, and

            Justice Scoggins

Affirmed

Opinion delivered and filed March 2, 2011

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