¶1dissenting on rehearing on court’s motion.
¶2The majority overrules point of error one because the appellant did not object to the error. I dissent because no objection was necessary.
¶3In this case, the trial judge told the venire panel the appellant was considering pleading guilty and that, in the trial judge’s opinion, the appellant should have pled guilty and was wasting everyone’s time. The trial judge made the following statements in an attempt to apologize to the venire for a long wait in the hall. The first part of the explanation involved another ease that was set before the appellant’s ease. After discussing the other case, the court said:
The second case [this one], which we are going on, is a situation where the attorney has been speaking to his client about what does he want to do. And when you are on the button like these cases, it’s a question. Frankly, an offer has been made by the State or do I go to trial. And he has been back and forth so I finally told him I had enough of that, we are going to trial. You have been sitting out here and this is holding up my docket and I can’t get anything done until we know if we are going to trial or not.
Frankly, obviously, I prefer the defendant to plead because it gives us more time to get things done and I’m sure not going to come out here and sit. Sorry, the case went away and we were all trying to work toward that and save you time and cost of time, which you have been sitting here and I apologize about that. I told the defendant that. Like I said, I have enough of this and going to trial.
¶4Ordinarily, a timely objection is required to preserve error. Tex.R.App. P. 33.1; John*821son v. State, 803 S.W.2d 272, 291 (Tex.Crim.App.1990). However, I believe the judge’s statements were so prejudicial that the effect could not have been cured by any instruction, explanation, clarification, correction, or modification. Nothing the trial judge could have said to the venire panel could withdraw the information he had already provided — the appellant was considering pleading guilty, or the impression his comments left — that the appellant should have pled guilty and was wasting everyone’s time. The only appropriate relief that defense counsel could have requested was a mistrial. After the judge’s comments, the appellant was entitled to start over with another venire. An objection was not necessary to preserve the error for review because the judge’s statements undermined the appellant’s due process rights to a fair trial by an impartial jury.
¶5Thankfully, there are not many cases where the appellate courts are called upon to review error by the trial judge in informing the jury or the venire that the defendant is guilty. However, there is one. In Hay v. State, 472 S.W.2d 157, 158 (Tex.Crim.App.1971), after the jury had retired to deliberate, it returned into open court to present the verdict. The trial court noticed neither of the verdict forms was signed and instructed the jury foreman to sign the charge. Id.He did so, and when it was returned, the trial judge saw the foreman had signed the “not guilty” form. Id. at 160. Believing the foreman had inadvertently signed the wrong form, the judge told the jury he “believed they had done it wrong,” and told the jury to go back and deliberate further. Id. at 158. The jury then returned a “guilty” verdict. Id. at 159. The Court of Criminal Appeals held the judge’s action amounted to a statement to the jury that a verdict of not guilty was “wrong,” and reversed. Id. at 160.
¶6The critical issue here was whether the appellant knew that the person who grabbed him in the dark from behind and with whom he struggled, was a police officer. The officer with whom the appellant struggled testified he did not identify himself as a police officer and admitted he did not see the appellant’s face and could not identify him. The appellant testified he did not know he was fighting with a police officer. However, the judge’s pretrial comments essentially informed the venire that the appellant thought he was guilty. As in Hay, we should reverse for a new trial.
¶7I would find the appellant did not receive a fair trial after the trial judge informed the venire panel that the appellant was considering making a plea of guilty.