### PD-0259-15
INTHE COURT OF CRIMINALAPPEALS FORTHE STATE OFTEXAS
CHRISTOPHERLONG, PETITIONER, 

# vs. THE STATE OFTEXAS, RESPONDENT.
OnAppeal in CauseNo. 13-05-11,818 

### inthe 24th Judicial District Court ofDeWitt County, Texas

Hon. Juergen "Skipper" Koetter, JudgePresiding


### FIRST AMENDED PETITIONFORDISCRETIONARY REVIEW

Luis A
. Martinez BarNo. 24010213 P.O. Box410 Victoria, Texas 77902 (361) 575-6764 telephone (361) 575-8454 telefax Email: Lamvictoriacounty@gmail.com ATTORNEYFORPETITIONER CHRISTOPHERLONG 

### May 22, 2015 PD-0259-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 5/22/2015 2:58:17 PM Accepted 5/26/2015 10:11:34 AM

ABEL ACOSTA CLERK

### IDENTITY OFJUDGE, PARTIESAND COUNSEL Pursuant to TEX. R. APP. 

### P
. 68.4(a), the parties to the suit are as follow: 

### APPELLANT APPELLEE TRIALJUDGE
STATE'SATTYAT TRIAL:

DEFENSE ATTY AT TRIAL: CHRISTOPHERLONG THE STATE OFTEXAS HON. JUERGENKOETTER
HON.MICHAEL SHEPPARD 24th Judicial District Attorney De Witt County Courthouse 307N. Gonzalez Cuero, Texas 77954 

### HON. CHRISISLES P.O. Box389 Refugio, Texas 78377 

### APPELLATE STATE'SATTY: HON. ROBERT LASSMAN 24th Judicial District Attorney De Witt County Courthouse 307 N. Gonzalez Cuero, Texas 77954 

### APPELLATEDEFENSE ATTY: HON. LUIS A. MARTINEZ P.O. Box410 Victoria, Texas 77902

1

### TABLE OF CONTENTS IDENTITY OF JUDGE, PARTIES AND COUNSEL
..........................

### .i TABLE OF CONTENTS
........ ......... .... . . .. .... . ..... ... ..... .. ..... ... .... ...ii 

### INDEX OF AUTHORITIES
....................................................... iii 

### I. ST ATEMENTREGARDING ORAL ARGUMENT
........................... 2 II. STATEMENT OF THE CASE
.....................................................3 

### III. STATEMENT OF PROCEDURAL HISTORY
..................................3 IV. 

### GROUND FORREVIEW
.... ... .... ....... ...................... ...... .. ...... .... .4 

### V. ARGUMENT
........................... ... ............................................4
WHEN A TRIAL JUDGE ACTS AS AN ADVERSARY OR AN ADVOCATE BY INTERROGATING WITNESSES DURING A SENTENCING HEARING, ISN'T REQUIRING A FINDING OF "EGREGIOUS CONDUCT" ACTUALLY SUBJECTING A TRIALJUDGE'S CONDUCTTOA HARMANALYSIS? 

### VI. CONCLUSION AND PRAYER
.....................................................7 VII. CERTIFICATE OF CO:MPLIANCE
................................................ 9 VIII. CERTIFICATE OF SERVICE
................. ........................ . ............9 

### IX. APPENDIX
...................................................................... . ....10

ii

### LIST OFAUTHORITIES Cases: Arizonav. Fuliminante, 499 U.S. 279 (1991)
....... ........ ... ......................... 7 Blue v. State, 41 S.W.3d 129 (Tex.Crim.App. 2000)
...... ........ . ...... .. ......... ...6 Cain v. State, 947 S.W.2d 262 (Tex.Crim.App. 1997)
.................................7 Hernandez v. State, 268 S.W.3d 176 (Tex.App.-CorpusChristi, 2008, no pet.)
.......................................6 Trung The Luuv. State, 440 S
.W
.3d 123 (Tex
.App.-Houston [14th Dist.] 2013, no pet.)
.. ... . . ..... ... ... ....... .. ...... ...... ................ . ......... .........4 Neder v. UnitedStates, 527 U.S. 1 (1999)
.. ..... ...... ............... ....................7 Unkart v. State, 400 S.W.3d 94 (Tex.Crim.App. 2013)
...... . .... .. ................. 6
Statutes: TEX. 

### PEN
. CODE §37.03
..................................................................... 1 T.R.A
.P. 49.1
.... ......... .. .. .. .. ........... . ..... .. ... .. ....... ... ... .... ... . . .. .. .. .... ... . 3 T.R.A.P. 68.4
..................................................................................4

lll

### PD-0259-15
IN THE COURT OF CRIMINALAPPEALS FORTHE STATE OFTEXAS
CHRISTOPHERLONG,


# vs. THE STATE OFTEXAS, PETITIONER,

RESPONDENT.
OnAppeal in CauseNo. 13-05-11,818 inthe 24th 

### Judicial District Court ofDe Witt County, Texas Hon. Juergen "Skipper" Koetter, Judge Presiding
FIRST AMENDED PETITIONFORDISCRETIONARYREVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS: COMES NOW, CHRISTOPHER LONG, Petitioner in this matter and respectfully submits this PETITION FOR DISCRETIONARY REVIEW arising from the judgment of the 13th 

### Judicial District Court of Appeals' decision 

### affirming the sentence imposed inthe trial court after convicting him ofthe offense of "AGGRAVATED PERJURY," a Third Degree Felony. See 

### Tux PEN. CODE §37.03.

### This appeal originally arises from the 24th Judicial District Court ofDe Witt County, Texas, the Honorable Juergen "Skipper" Koetter, Judge Presiding, in District Court Cause Number 13-05-11,818, in which the Petitioner, CHRISTOPHER LONG, 

### was the Defendant and the State of Texas was the Plaintiff. Petitioner pled guilty to an indictment charging him 

### with "Aggravated Perjury." The Trial Court sentenced Petitioner to 6 years in the Texas Department ofCriminalJustice-Institutional Division and $1,905.00 in court costs. 

## I. STATEMENT REGARDING ORAL ARGUMENT 

### Petitioner respectfully requests that this Honorable Court of Criminal Appeals allow him 

### the opportunity to argue his case before the Court ofCriminal Appeals
. Petitioner believes that this matter requires that the Court of Criminal Appeals ask questions regarding the facts and circumstances inthis case in orderto adequately present his point for consideration. Petitioner believes it to be essential that he be allowed to interact with the Court ofCriminal Appeals to explain his position andhis interpretation ofthe cases relied upon.

2

### II. STATEMENT OF THE CASE Appellant was formally charged with "AGGRAVATED PERJURY" in a one-count indictment filed with the De Witt CountyDistrict Clerk. Petitioner subsequently pled guilty and went to the Trial Court for punishment
. On the same day as Appellant's plea, the Trial Court conducted a punishment hearing. After considering the arguments ofcounsel and the evidence presented by both parties during the punishment hearing, the Trial Court assessed Appellant's punishment as imprisonment in the Institutional Division ofthe Texas Department ofCriminal Justice for six (6) years and costs ofcourt. 

### III. STATEMENT OFPROCEDURAL HISTORY Following his sentencing, Petitioner timely filed his notice ofappeal. After briefs were submitted, and no oral argument, the 13th 

### Court of Appeals set the matter for submission on, or about, December 29, 2014. On, or about, January 15, 2015, 

### the 13th 

### Court of Appeals issued a memorandum opinion overruling Petitioner's sole issue and affirmed thetrial court's sentence. Petitioner timely filed a Motion for Rehearing pursuant to T.R
.A.P. 49
.l on,
or about, January 30, 2015. 

### The Motion for Rehearing was denied by the 13t h 

### Judicial District Court ofAppeals on, orabout, February 6, 2015. 3

### On March 10, 2015, 

### a Motion to Extend Time to File PDR was filed and approved by this Court, extending the deadline for filing a Petition for Discretionary Review until May 8, 2015. IV. 

### GROUNDS FORREVIEW In 

### accordance with Rule 68.4 of_the Texas Rules of Appellate Procedure, Petitionerpresentsthe following ground for review:
WHEN A TRIAL JUDGE ACTS AS AN ADVERSARY OR AN ADVOCATE BY INTERROGATING WITNESSES DURING A SENTENCING HEARING, ISN'T REQUIRING A FINDING OF "EGREGIOUS CONDUCT" ACTUALLY SUBJECTING A TRIALJUDGE'S CONDUCTTOA

### HARM ANALYSIS?


# v. ARGUMENT "Ajudge should not act as an advocate or adversary for any party." Trung The Luu v. State, 440 

### S.W.3d 123, 128 

### (Tex.App.-Houston [14th 

### Dist.] 2013, 

### no pet.) Afterreviewing the transcripts ofPetitioner's sentencing hearing, the 13th 

### Court ofAppeals noted in its opinionthat: "The extent and adversarial nature of the trial judge's questioning of appellant in this case is cause for unease..." Longv. State, Opinion ofJanuary 15, 2015,

### p. 11. 

### The three reviewing Justices ofthe 13th 

### Court ofAppeals also agreed to the 4

### following: "Finally, even though we agree that the trial judge's questions were improperly adversarial.
.." Long

### v. State, 

### Opinion ofJanuary 15, 2015, p.13. Further, the reviewing Justices ofthe 13th Court ofAppeals characterized the Trial Court's questioning as follows: "We agree that the trialjudge put questions to appellant and Candice that could fairly be characterized as adversarial; the judge challenged their testimony and probed for inconsistencies intheir statements. Moreover, the general tenor ofthe questions indicated that the trial court judge did not rate highly the credibility of either witness." Long 

### v . State, 

### Opinion ofJanuary 15, 2015, p. 11. Petitioner agrees with the Court ofAppeals as to these characterizations of the Trial Court's questioning. Petitioner also believes that itis significant how the 13th Court ofAppeals has described the Trial Court's conduct during Appellant's sentencing hearing
. The Trial Court's questions were extensive, improper and adversarial to the extent that the conduct caused the Court ofAppeals "unease." The question then becomes: What else must be shown to conclude that Appellant's fundamental and constitutional right to a neutral, detached and impartial tribunal
were offended? Appellant contends that it is not necessary to conclude that the Trial Court's actions be egregious in order to find fundamental error as explained
5

### infra. The 13th CourtofAppeals cited its previous decision in

### Hernandez (relying
on 

### Blue v. State) that a defendant may raise the issue ofthe trial court's lack of impartiality in sentencing for the first time so long as the complained ofconduct
was "so egregious as to deem thejudge biased onthe matter ofpunishment." 

### Long
v. State, Opinion ofJanuary 15, 2015, p. 10 

### (citingHernandez v. State, 268 S.W.3d 176, 184 n. 34 (Tex
.App.-Corpus Christi 2008, no 

### pet.)(citing Blue v. State, 41 S.W.3d 129, 137 (Tex.Crim.app. 2000)(Keasler, J., concurring). In 

### Unkart v. State, this Court clarifiedthe status of

### Blue v. State: We now take the opportunity to clarifythe status of

### Blue. 

## *** With respect to 

### Blue, it is notpossible to ascertain a majority holding orthe narrowest ground orrule that commands a major ity ofthe court. The rationales ofthe plurality and concurring opinions are entirely disparate: they did not even focus on the same error, much less give the samereason why it was error.Theplurality focused onthe effect ofthe trialjudge's comments onthejury, while Judge Keasler consideredthe comments merely as evidence that the trialjudge was biased. Consequently, the 

### Blue decision has no precedential value. The opinions inthe 

### Blue case may nevertheless be considered for any persuasive value they might have, inthe same way as any otheropinion that does not command a majority ofthis Court, such as a concurring opinion. 

### Unkartv
. State, 400 S.W.3d 94, 100-101(Tex
.Crim.App.2013). It 

### is in the concurring opinion that "egregious" is identified as a benchmark
6

### for finding fundamental error. Does this actually make "egregious" a requisite finding? Appellant does not believe that it does. Rather, Appellant contends that the adversarial questioning, advocating against Appellant by the Trial Court that caused 13th Court of Appeals unease, that specific conduct is enough to find fundamental error. The right to an impartialjudge is so sacred that the United States Supreme Court has declared a violation ofthis right to be "structural error." Neder v. United States, 

### 527 U.S. 1 (1999). The presence of a biased judge on the bench is a structural defect in the trial mechanismArizona v. Fuliminante, 

### 499 U.S
. 279, 309- 310 (1991). Errors that the Supreme Court has designated as "structural" are categorically immune from harmless error analysis. Cain v. State, 

### 947 S
.W.2d 262, 264 (Tex.Crim.App. 1997). Requiring that a court of appeals find that conduct, which is clearly adversarial by their own finding, also be "egregious" in order to find structural
error requires de

### facto 

### harm analysis. It 

### is tantamount to finding "well, appellant wasn't denied that much 

### ofa neutral and detached tribunal." VI. CONCLUSIONAND PRAYER 

### WHEREFORE, for the reasons set forth above, Petitioner submits that the Trial Court erred. Petitioner prays that the Court ofCriminal Appeals grant this 7

### Petition for Discretionary Review; allowPetitioner to briefthe issues raisedby this matter and allow oral argument. Following the briefing and oral argument, Petitioner respectfully prays that this Honorable Court reverse and render the sentence below and/or reverse and remand this case to the 13th Court ofAppeals for further proceedings and/or remand the case to the Trial Court for a new sentencing. Petitioner further prays for general relief, and any other relief he is entitled to in law or in equity. Respectfully Submitted, Luis A. Martinez, P.C. P.O. Box410 Victoria, Texas 77902-0410 (361) 575-6764 (Telephone) (361) 575-8454 (Telecopier)

. ., 

# /{ lA_)(j,A.,.9z'1S.
... B 

## fr/

# ~

y: Luis A. Martinez State BarNo. 24010213 ATTORNEYFORPETITIONER CHRISTOPHER LONG

8

### VII. CERTIFICATE OF COMPLIANCE In accordance with Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned, Luis A. Martinez, I hereby certify that the number of words in the above Petition for Discretionary Review, excluding those matters listed in Rule 9.4(i)(3), is 871.

Luis A. Martinez 

### VIII. CERTIFICATE OF SERVICE This is to certify that a true copy ofthe foregoing document was served upon the person below in the manner indicated onthis 22nd day ofMay, 2015, pursuant to the Texas Rules ofAppellate Procedure.



### Via E-Mail The Hon. Robert C. Lassman De Witt County DistrictAttorney De Witt County Courthouse Cuero, Texas 77954 Luis A. Martinez

9 

### Via CertifiedMail, RRR State ProsecutingAttorney P.O. Box 12405 Austin, Texas 78711

## APPENDIX 1. Opinionofthe 13th Court ofAppeals,Longv. State, 

### January 15, 2015.

### NUMBER 13-13-00579-CR 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI
- EDINBURG
CHRISTOPHER LONG,



## v.
THE STATE OF TEXAS, 

### On appeal from the 24th District Court of De Witt County, Texas. 

## MEMORANDUM OPINION Appellant,

Appellee.

Before Justices Benavides, Perkes, and Longoria Memorandum Opinion by

### Justice Longoria By one issue, appellant Christopher Long challenges his sentence of six years' imprisonment for aggravated perjury, a third-degree felony. See TEX. PENAL CODE ANN. 

### § 37.03 (West, Westlawthrough 2013 3d C.S.). We affirm.I. BACKGROUND 

### DeWitt County District Attorney Michael Sheppard testified at appellant's trial that appellant, a confidential informant, turned over a quantity of cocaine to authorities and stated that he had purchased the cocaine from a man named Brandon Michalek. The State brought charges against Michalek arising out of the sale
. At Michalek's trial, appellant changed his story and told the court that he had not purchased cocaine from Michalek and that the cocaine actually belonged to appellant. As a result, the State dismissed the charges against Michalek and charged appellant with aggravated perjury, a third-degree felony. See id. 

### Appellant entered an open plea of guilty, judicially confessed to all ofthe elementsofthe offense, and optedforthe trial courtjudgeto assess punishment. With the agreement of the parties, the trial judge deferred accepting the plea and making a finding ofguilt until after hearing evidence on punishment. Appellant requested that the court impose a term of community supervision , and the State recommended a minimum sentence of six years' imprisonment. Appellant and his wife, Candice Long (Candice), testified at the punishment hearing. Afterthe attorneysfor both parties informed thetrialjudgethatthey had no more questions for appellant, the trial court judge stated: "[t]he Court has a little other information that I'd like to getfrom this witness." Appellant's counsel did not object, and the trial judge proceeded to question appellant about certain matters raised by his testimony. The record ofthe questioning is extensive, so we reproduce a representative sample in which the judge questions appellant about his testimony that John Herrick, Michalek'strial counsel in the drug case, allegedlytook appellanton a ride to San Antonio and convinced him notto testify:

2THE COURT: Mr
. Long, on the day that you were telling Mr. Sheppard about when Mr. Herrick and his wife came to your house and took you to San Antonio, okay, you know what day I'm talking about? [APPELLANT]: Yes, sir. THE COURT: Okay. When he pulled up in front of your house did you know who he was? (APPELLANT]: No, sir, I did not. Atfirst I didn't, I didn't recognize the car. THE COURT: Had you ever talked to him before that on the phone or by any other means? [APPELLANT]: No, sir. THE COURT: And so this total stranger pulled up in front of your house and, what, howdid heconvince you to get in the carand goto San Antonio? [APPELLANT]: I don't know. He's real convincing. THE COURT: Did he tell you that he was Mr. Michalek's lawyer? [APPELLANT]: Atfirst he never told me that until I got in the car and then he told me hewas Mr. Michalek's. THE COURT: Well, tell me what hetold you to getyou to goto San Antonio with him. I mean, can I pull up toyour house and say let's go to Laredo and you'll justjump in and go to Laredo? [APPELLANT]: No. THE COURT: Well
. .. [APPELLANT]: He didn't really say nothing, he just asked me to ride with him to San Antonio, so I did. THE COURT: A total strangerjust pulled up in frontofyour house and said, hey, let's goto San Antonio and you got in the carand wentwith him? [APPELLANT]: Yes, sir
. THE COURT: Does that seem kind ofunbelievable to you? [APPELLANT]: Yeah. But that's what happened. Honestly, that's what happened
. 

### 3THE COURT: And then as you have previously testified, all those things that occurred on the trip, you told Mr. Sheppard about everything that happened on the trip. Nothing else happened on that trip, right? [APPELLANn: No, sir. THE COURT: And you had never ever beforethatday ever heard oformet Mr. Herrick? [APPELLANn: No, sir. THE COURT: And he hasn't been to see you atthe jail? [APPELLANn: No, sir. THE COURT: He hasn'tsent you messages through other persons, verbal messages oranything else? [APPELLANn: No, sir. THE COURT: No threats oranything else? [APPELLANn: I ain't seen him since
... THE COURT: April the 2nd- [APPELLANTJ: Yes, sir. THE COURT: -2013, you have not seen or heard from Mr. Michalek? [APPELLANT]: I ain't seen him or heard from him. THE COURT: Do you know where he is today? [APPELLANT]: No, sir, I don't. THE COURT: Well, doyou thinkthatwhatyou're doing todaywould trigger his-him[1J taking action on the threats that were made against 

### you? [APPELLANT]: Most likely. THE COURT: And so what's the incentive, what are you doing here?

1 Here,thetrialjudge is referring tothreats that Michalek and one ofhisassociates allegedly made against appellant and his family. 

### 4[APPElLANn: I'm doing the right thing. THE COURT: And what brought you to this place? How did you get here to-how did you come to realize that lying to the State and interfering with the operation ofjustice is a bad thing and that you wanted to dothis? [APPELLANn: Sitting in that eight-man tank got me realizing that I did the wrong thing and I shouldn't never lie. Being incarcerated has taught me a lesson. I should never have lied underoath, never. I should have told the truth while I had the chance. Following this exchange, the trial judge permitted the attorneys for both parties to ask follow-up questions. Appellant's next and final witness was his wife Candice. The trial judge posed similar questions to her after the parties' attorneys finished their examinations. The record ofthejudge's questioning of Candice is also extensive so we again reproduce a representative sample: THE COURT: Okay. You've said that at some point in time Mr. Long went to-went somewhere with Mr. Herrick. Is that right? THE WITNESS: Yes, sir. THE COURT: And you also said that you had met Mr. Herrick about one week before that happened? THE WITNESS: Yes, sir. THE COURT: And that was because he came to your house one week earlier; is that correct? THE WITNESS: Yes, sir. THE COURT: And was Mr. long home that day orwas he notthere? THE WITNESS: When? THE COURT: The first time that Mr. Herrick came to your house. Notthe day that he went offwith him, the time before that when you said you met him, was Mr. long present when you met him ornot? THE WITNESS: Yes, sir.


### 5THE COURT: On the daythat Mr. Long went somewhere with Mr. Herrick and came back at nine orten o'clock at night, did he tell you ahead oftime that Mr. Herrickwas going to pick him up ordid he come in and tell you that Mr. Herrick was there and wanted him to go somewhere with him? THE WITNESS: If he
... THE COURT: Did he tell you during the day, before Mr. Herrick gotthere, John Herrick is coming to pick me up, we're going to go somewhere, ordid hecome in and tell you John Herrick ishereand I'm going to go somewhere with him? Did he know ahead oftime that he was coming to pick him up? THE WITNESS: Yes, sir. THE COURT: How do you know that? THE WITNESS: He came in the house and told me thatJohn Herrick was coming to pick him up and that he'll be back late. THE COURT: ButJohn Herrick wasn't there yet; is that correct? THE WITNESS: I don't know. I was inside. THE COURT: Okay. So you think that he knew that John Herrick was coming to pick him up before he got there or do you think he didn't know before he gotthere? THE WITNESS: I don't think he knew. THE COURT: So John Herrick showed up and then your husband didn't know he was coming to pick him up but he came and told you that he was there and that he was going to leave with him? THE WITNESS: I don't know. All I know is he came in and told me he was leaving and that he would be back later and that he was going with John Herrick. THE COURT: Okay. And he had metJohn Herrickwith you a weekearlier? THE WITNESS: Well, he met him before I did. Ijustmethim the same day when we both walked outside. THE COURT: Okay. So he had met him even before John Herrick showed up at your house a week before hetook him offwherever they went?



### 6THE WITNESS: Yes, sir. I think he met him in court when they had court one day. THE COURT: So how long before-how long before Mr. Long went with Mr. Herrick doyou think he knew him? A month? THE WITNESS: I don't know. THE COURT: But you're sure that he did know him before the day that he came to get him and take him offwherever theywent? THE WITNESS: I don't know when he met him. THE COURT: But do you know for sure that he knew him before he went somewhere with him? THE WITNESS: Yes, sir. I think so. THE COURT: Okay

. And tell me whyyou thinkyou're sure ofthat. THEWITNESS: Well, because hewas supposed to be one of mycousin's lawyers too - THE COURT: Okay. THE WITNESS: -andstuffso... Me and my husband's around each other most of the time, but not all the time, because you've got to get a break sometime from a man so... THE COURT: Why is that? THE WITNESS: Because. A man will drive you up the wall. THE COURT: Had - to your best ofyour recollection, do you remember your husband, Mr. Long, talking to you about John Herrick before the day that he wentwith him? Sowhereverthey went, we'rejustgoing to call itthe daytheywentto SanAntonio. Beforethatday, the bestofyour recollection, do you remember your husband talking to you about John Herrick?
THE WITNESS: Yes, sir. THE COURT: Okay. To the best of your recollection do you remember your husband, Mr. Long, talking toyou aboutJohn Herrick before thatweek, that one week earlierwhen he came to your mother's house? There was a time when he came to your mother's house and pjcked your husband up, 

### 7you've told me that a week before that he came by your house and talked to you. Right? THE WITNESS: He came 

### by. THE COURT: And talked to you and your husband andthen oneweek later he came by, picked your husband upand took himto San Antoniofor a little while. THE WITNESS: Yes, sir. THE COURT: Is that what you remember? THE WITNESS: Yes, sir. THE COURT: Now, before the first time-I assume that the time a week before he took him off, that that was the first time John Herrick had ever been to your mother's house. THE WITNESS: Yes, sir. THE COURT: That you know of. Before he came to your mother's house the first time, do you ever remember your husband talking about John Herrick before that? THE WITNESS: About meeting him in court one day. THE COURT: Okay. So he hadtalked about itbefore hecametothe house the first time? THE WITNESS: Yes. Because John Herrick and Brandon were outside when Chris was leaving the courtroomTHE COURT: Okay. Following closing arguments, the trial court judge found appellant guilty and assessed punishment at six years' imprisonment in the Texas Department of Criminal Justice-Institutional Division, court costs, and no fine.



### 8

### II. JUDICIAL BIAS Byhissole issue, appellantarguesthatthetrialjudgecommitted fundamental error because he abandoned the role of a neutral, detached hearing officer and took on the role ofan advocate for the State. 

### A. Applicable Law "Due process requires a neutral and detached hearing body or officer." Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)). A criminal trial must be held before ajudge with no actual bias against a defendant or interest in the outcome of the defendant's case. Avilez v. State, 333 S.W.3d 661, 673 (Tex. App.-Houston [1st Dist.] 2010, pet. refd). In the absence of a clear showing to the contrary, we will presume that the trial judge was neutral, detached, and unbiased in all phases of the trial. Brumit, 206 S.W.3d at 645 (citing Thompson 

### v. State, 641 S.W.2d 920, 921 (Tex. Crim. App. [Panel. Op.] 1982)). This Court has concluded that a defendant has an absolute right to an impartial judge at both the guilt/innocence and punishment stages ofthe trial. Hernandez v. State, 268 S.W.3d 176, 185 (Tex. App.-Corpus Christi 2008, no pet.).2 Applying the Texas Court of Criminal Appeals's three-part Marin framework,3 we further concluded that a defendant may raise an issue ofthe trial court's lack of impartiality in sentencing for the

2 Atthetime this Court issued its decision in Hernandez, five other courts ofappeals had reached thesameconclusion. See Hernandez v. State, 268 S.W.3d 176, 184n.34 (Tex.App.-CorpusChristi 2008, no pel) (collecting cases). 3 In Marin v. State, the Texas Court ofCriminal Appeals divided a defendant's rights into three categories: absolute rights, waiver-only rights, andforfeitable rights that must be implemented on request. 851 S.W.2d 275, 278-80 (Tex. Crim. App. 1993) (en bane), overruledon othergrounds, Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (en bane). The Court further held that the requirement of Rule 33.1 that a defendant must object to preserve error does not apply to rights falling within the first two categories. See id. at279--80; see also Blue v. State, 41S

.W.3d129, 137 (Tex. Crim.App. 2000)(Keasler, J., concurring) (explaining the historyofthe Marin framework). 

### 9first time on appeal so long as the complained-of conduct was "so egregious as todeem the judge biased on the matter of punishment." Id. at 185-86 (citing Blue 

### v. State, 41 S.W.3d 129, 137 (Tex. Crim. App. 2000) (Keasler, 

### J., concurring)). "Texas is 'second to none' in its disapproval ofjudges' examination ofwitnesses." Galvan v. State, 988 S.W.2d 291, 297 (Tex. App.-Texarkana 1999, pet. refd) (citing Morrison v. State, 845 S.W.2d 882, 886 n.10 (Tex. Crim. App. 1992) (en bane))

. Texas is the only jurisdiction that has not adopted a version of Federal Rule of Evidence 614, which explicitly permitsjudicial examination ofwitnesses. 

### Id. However, a trial courtjudge may question a witnessto clarify a point oraskthe witness to repeat somethingthejudge did not hear. Williams v. State, 89 S.W.3d 325, 328 (Tex. App.-Texarkana 2002, pet. refd). Texas law discourages questioning by the trial judge in other areas because it presents two dangers: {1) the questioning could conveythe judge's opinion of the case to the jury and so influence their verdict; and (2) the court "in its zeal and active participation" could assume the role of an advocate and lose the neutral and detached role that is required ofa judge. Id. 

### B. Analysis Only the second potential harm is at issue here because the trial judge's examinations occurred in the contextofa guilty-plea proceeding wherethe parties agreed thatthejudge would assess punishment. See Guinn 

### v. State, 209 S.W.3d 682, 686 (Tex. App.-Texarkana 2006, no pet.} ("The first potential danger cannot apply in this case since this entire proceeding was before the court during a guilty plea proceeding."). Appellant argues that the trial court improperly stepped into the role of the prosecutor, something which is not consistent with due process. See United States v. Lanham, 416


### 10F.2d 1140, 1143 (5th Cir. 1969) (observing, in a jury trial, that "[i]t seems clear that the trial judge determined in his own mind that Lanham was giving perjured testimony and set out to demonstrate this to thejury. In a word, he took over prosecution. This we may not permit"). We agree that the trial judge put questions to appellant and Candice that could fairly be characterized as adversarial; the judge challenged their testimony and probed for inconsistencies in their statements. Moreover, the general tenor of the questions indicated that the trial court judge did not rate highly the credibility of either witness. However, given the context, we disagree that the judge stepped into the role of the prosecutor. In Moreno v. State, the Texarkana Court ofAppeals confronted a similar situation: the trial court judge extensively questioned the defendant when he testified during the guilt/innocence phase of a bench trial. 900 S.W.2d 357, 358-59 (Tex. App.-Texarkana 1995, no pet.). The court of appeals concluded that the questioning did not rise to the level offundamental error because the judge was seeking facts for his role as factfinder, the questionswould have been allowed to the parties' attorneys, the answers were within the bounds of admissible testimony, and nothing in the record revealed that the judge became so entangled in his role as an advocate that he could not make an objective fact finding. Id. at 359-60. The extent and adversarial nature ofthe trial judge's questioning ofappellant and Candice in this case is cause for unease, but after a thorough review of the record, we conclude that the rationale of Moreno applies tothis case. The trial judge appeared to be seeking facts for his role as factfinder, the questions the judge asked of appellant and Candice would not have been out of bounds to the parties' attorneys, and the answers of


### 11both were within the bounds ofadmissible testimony. See Moreno, 900 S.W.2d at 359- 

### 60; see also Guinn, 209 S.W.3d at

### 686 (concluding that the trial judge was authorized to inquire into facts relevant to disposing of the petition for community supervision filed by
an appellantwho entered a guilty plea). It is also relevant that appellant asked the judge to place him on community supervision. Appellant's request required the judge to make an independent determination regarding whether suspending the sentence and placing him on community supervision was in the best interests ofjustice, society, and appellant. TEX. CODE CRIM. PROC. ANN. art. 42.12 

### § 3(a) (West. Westlaw through 2013 3d C.S.). Many ofthe trial judge's questions were directed attesting appellanfs story that Herrick induced appellant not to testify and also promised to assist appellant with any resulting legal issues. We agree with the Guinn Court that the trial judge had some leeway to follow up on this issue afterthe parties' attorneys finished their examination, even though some of the questions went beyond what was necessary for the trial court to make a decision. See Guinn, 

### 209 S.W.3d at 

### 686-87 (holding that the trial judge did not commit fundamental error by questioning a defendant about his drug use after the witness had testified during the punishment phase that using alcohol and marijuana contributed to his offense, even though some of the judge's questions went beyond what was strictly necessary); see also Agee v. State, No. 03-01-00338-CR, 2002 WL 219874, at *2 (Tex. App.-Austin Feb. 14, 2002, pet. refd) (mem. op, not designated for publication) (holding that in 

### a bench trial where the judge was to assess punishment, the trial court did not commit fundamental error by questioning witnesses on issues that were raised in their testimony and that were relevant to punishment). Finally, even though we agree thatthe

12trial judge's questions were improperly adversarial,4 the record does not indicate thatthe judge became involved as an advocate to such an extent that he could not impartially
assess punishment. See Moreno, 900 S.W.2d at 359-60; see also Guinn, 209 S.W.3d at 686-87. Because appellant has not demonstrated that the trial judge's behaviorwas so egregious as to deem him biased, we conclude that appellant has not demonstrated fundamental error. See Hernandez, 268 S.W.3d at 185 (holdingthattrial judge's conduct rises to the level offundamental error 

### if it is "so egregious as to deem the judge biased
on the matterof punishment"). We accordingly overrule appellant's sole issue. 

### Ill. CONCLUSION We affirm thejudgment ofthe trial court
.

Do not publish. Tex. 

### R. APP. P. 47.2(b). Delivered and filed the 15th day ofJanuary, 2015. . NORA L. LONGORIA Justice

4 See Trung The Luu v. State, 440 S.W.3d 123, 128 (Tex. App.-Houston [14th Dist] 2013, no pet.) {"Ajudge should notact as an advocate oradversary forany party."). 

### 13