Affirmed and Majority and Concurring Opinions filed May 30, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01096-CR

NO. 14-04-01097-CR

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ENRIQUE ESPINOSA, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause Nos. 03CR0322 & 03CR0323

C O N C U R R I N G   O P I N I O N

I write separately to note my disagreement with the majority=s conclusion that appellant somehow waived his first issue by failing to object during voir dire.  However, I agree with the majority=s conclusion that appellant was not harmed by the prosecutor=s questions regarding the comparison in punishment ranges between capital murder and attempted capital murder, and I join the majority=s opinion as to appellant=s second and third issues.

The majority analyzes appellant=s first issue as one regarding improper jury argument and concludes appellant waived this issue by failing to object to similar statements made during voir dire, citing Cruz v. State, 877 S.W.2d 863, 868 (Tex. App.CBeaumont 1994, pet. ref=d).  I disagree with this analysis for two reasons.  First, this issue challenges an evidentiary ruling and should be analyzed accordingly.  Though appellant objected to these questions as being argumentative, that does not transform the issue into one of improper jury argument.^[1]  Thus, even if the failure to object during voir dire could in fact waive an objection to improper jury argument, there is no authority holding that it would also waive an evidentiary objection.  Second, neither party has argued whether the voir dire statements were in fact improper, nor has the majority addressed this issue.  The standards governing voir dire differ from those for evidentiary rulings or closing arguments, and what is proper in voir dire may be improper in other contexts.  Thus, the majority errs in penalizing appellant for failing to object during voir dire when appellant is not raising an issue about improper voir dire and without first establishing that there was any reason to object.

For these reasons, I respectfully concur.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Majority and Concurring Opinions filed May 30, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson (Anderson, J., majority).

Publish C Tex. R. App. P. 47.2(b).