NO. 07-03-0437-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D AUGUST 29, 2005

______________________________ DAVID CAFFERY, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 359 TH DISTRICT COURT OF MONTGOMERY COUNTY; NO. 98-05 -00463-C R; HONORA BLE KAT HLEEN A . HAMILTON , JUDGE

_______________________________ Before QUINN and REAVIS and CAMPBELL , JJ.

MEMORAND UM OPINION ON REMAND FROM COURT OF CRIMINAL APPE ALS Byour opinion of September 30, 2004, we affirmed app el lant’s conviction and sentence upon his guilty plea to two counts of aggravated sexual assault of a child. In that opinion, we agreed with the State that the grounds presented by appellant’s third issue1 For factual restatement, see our prior opinion of September 30, 2004. 2 were not preserved for review and held that appellant’s failure to file a motion for the recusal of the trial judge amounted to a waiver of theerror. Citing Rule 47.1 of the Rules of Appellate Procedure, we found appellant’s additional argument s not nece ssary to our final disposition and affirmed the judgment of the trial c o urt. On appellant’s petition for discretion ar y review, the Court of Criminal Appeals held that pursuant to Rule 47.1, our prior opinion did not adequately address appellant’s argument that the trial court’s actions violated rights that could not be waived by the fa ilure to object, vacated our judgment, and remanded the ca se to this Court for reconsideration of appellant’s issue. Now, upon remand, we again consider appellant’s third issu e. 1 Byissue three, appellant contends the trial court reversibly erred by interviewing the complaining witness and two of the State’s other witnesses in camera without notice to or the presence of appellant or his attorney prior to deciding to reject a proposed pl ea bargain

a nd prior to a determination of guilt or innocence. Althoug h conced ing error , by it s response, the State contends (1) the error was not preserved for review or, alternatively, (2) by proce eding to

the jury o n punish ment, app ellant re start ed the pr oceedings on punishmentand no error is shown. Restated here, the discrete questions whi ch we must determine are whether the in camera interviewof the victim and two witnesses by the trial court in cham ber s, without notice to appellant or his attorney, constituted a d enial of appellant’s constitutional guarantee of a trial by due course of law per Article I, Section 193

of the Texas Constitution and, if so, whether the error was subject to waiver by appellant’s failure to object. Based on the following rationale, we s ustain appellant’s third issue and reverse and remand the cause to the trial court for a new trial

. Denial of Constitutional Guarantee

In additio n to appe llant’s right toa public trial under Article I, Section 10 of the Texas Constitution, Article I, Sectio n 19 gua rantees a ppellan t a trial by “due cour se of the law.” Due process has been described as “t he basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the st ate may exercis e.” In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (196 7). In In re Taylo r, 567 F.2d 1183, 1187-88 (2d Cir. 197 7), the Court observed that in cam era proceedi ngs are “extraord inary

events in the constitutional framework because t hey deprive the [affected party] of the ro ot requir ements of due proce ss . . . .” See also Car roll v. President and Comm’rs of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968) (expressing disappro val of ex parte proceedi ngs). Citing In re Tayl

or and Carroll, in State ex rel. Bryan v. McDonald, 662 S.W.2 d 5, 7 (Tex.Cr.App. 1983), the Court held that the inspection of a presen tence rep ort befo re a determination of

guiltviolate d due pro cess. It r easoned that a cou rt could not maintain its status as a neutral arbiter when it considered evidence theoretically inadmis sible in a court of law and concluded that the pra ctice of the trial judge “of reviewing prior to a determination of guilt unsworn testimony not subje ct to the rigo rs of cros s-examin ation, a4

reviewthat does not take place before opposing parties in a court of law, is for all practical purposes an in came ra proceeding.” Considering that the State concedes error and does notcontend that the ex

parte in cam era interview was authorized under article 26.13(e) of the Code of Criminal Procedure, we need not address the application of the sta tute. See Tex. Cod e Crim. P roc. Ann. art. 26.1 3(e) (Vern on Supp. 2004-05 ). Appellant’s Failure to Object

Fundamental error may be presented for the first time on appeal. For example, the question of former

jeopardy is fundamental and may be raised at any time. See Muncy v. State, 505 S.W.2d 925, 925 (Te x.Cr.App. 1974). Similarly, an issue concerning the disqualification of a judg e may not be waive d by the p arti es but may be presented on appeal even in the a bsence o f an objec tion in t he trial court. Gamez v. State, 737 S.W.2d 315, 318 (Tex.Cr.App. 1987). Because in came ra proceedi ngs are e xtraordi nary even ts in the constit utional framework and ex parte proceedings are also condemned, we conclude that a denial of due process by the ex parte in camera interview of the victim and witnesses under t he circumstances presented here violated the absolute systemic requi rement of process and that the error may be presented for the firsttime on a ppeal. See Mendez v. State, 13 8 S.W.3d 3 34 (Tex. Cr.App. 2 004). Byits alternative response, the State contends appellant restarted t h e trial procedures on punishment by going to the jury for punishment and that no error is asserted i n the restarted proceeding. Then, the State concludes that by proceeding to a jury on5

punishme nt, appellant waived any error in the proceedi ngs t hat led to the trial court’s refusal of the plea bargain. However, the State cites n o authority for its argument and we have found none. Moreover, the State does not argue and the record does not show that appellant

relinquished any rights. See Muniz v. State, 13 8 S.W.3d 3 34 (Tex. Cr.App. 1 993). Indulging every reasonable presumption against a waiver of fund amental constitutional rights, we reject the State’s suggestion that, after the trial court conducted its ex parte in

camera interview prohibited by McDonald , a ppellantmade any waiver of the error by proceeding to a tria l by an i mpartial jury. See McDonald , 662 S.W.2d at 7; Lyles v. State, 582 S.W.2d 138, 141 (Tex.Cr.App. 1979). Appellant’s third issue is sustained. Accordingly, the judgm ent is re versed an d the cau se is rema nded to t he trial court for a new trial.

Don H. Reavis Justice Do not publish.