Affirmed and Opinion Filed January 12, 2018 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-17-00411-CR TEDDIE WILLIAMSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F-1050574-V 

### MEMORANDUM OPINION Before Justices Bridges, Myers, and Schenck Opinion by Justice Bridges On August 22, 2014, appellant Teddie Williams on was placed on deferred adjudication community supervision for three years, with a $5 00 fine, for possession of a controlled substance in the amount of less th an one gram. The State later move d to adjudicate guilt based on six violations of the deferred adjudication order. 1 Appellant pleaded true to the violations, and the trial court sentenced him to 180 days’ confinement. In his first issue, appellant contends the trial court abused its discretio n and committed fundamental and struct ural error by exhibiting bias and acting as an adversarial advocate in favor of the State. In his second and third issues, he argues the trial court erred by violating his statutory and common law rights to allocution. We affirm.

1 These violations included failing to (1) re port to his community supervision officer as directed, (2) pay f ees as directed, (3 ) participate in drug and alcohol evaluation and/ or treatment, and (4) complete community supervision hours.–2– Judicial Bias In his first issue, appellant argues the tria l court violated his due process rights and committed fundamental and structural error by e xhibiting bias and acting as an adversarial advocate in favor of the State when it called the VA hospital to inquire about his employment status. The State responds the trial court’s actio ns did not result in any bi as or prejudice against appellant. Appellant testified during the re vocation hearing. He explained he faile d to report to the community supervision office because he was teach ing special education classes in Austin. The school district later suspended hi s certification because of his o ffense and “everything else [was] like a triple affect comi ng down from there.” He told the trial judge he was back on hi s feet and obtained other employment. He worked part-time at both the Department of Ve teran Affairs in Waco and at a church. He explained he would lose his job at the VA if he spent 180 days in jail because he was “not service connected” and “would be considered AW OL.” He hoped for a second chance because he lost his first good job and did not want it to happen a second time. The court asked, “What else do you want me to know?” Appellant said if given the opportunity, he “would not let you down. This will not happen again.” He emphasized this was his first time to be put on probation. However, he admitted he was also on probation in Fort Bend County for a separate possess ion charge. When the court as ked if the State had filed a motion to revoke in Fort Bend County, he res ponded, “I have a hold in Fort Bend.” The court asked for the name and phone number of his supervisors at the VA. The record indicates the trial judge tried to call and verify his employment at the VA but no one answered. Appellant then said, “I have a nother job besides that one, if you want to call my second job.” The trial judge responded, “I thi nk we’ve done all we can to try to figure this out.” After the–3– exchange, both sides rested and closed without further discussion. Th e court then revoked his order deferring adjudication, found him guilty, and sentenced him to 180 days’ confinement. “In the Texas adversarial system, the judge is a neutral arbiter between advocates . . . he is not involved in the fray.” Brown v. State , 122 S.W.3d 794, 797 (Te x. Crim. App. 2003). Due process requires a neutral and detached judge preside over a revocation hearing. Brumit v. State , 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). However, a neutral a nd detached hearing officer is not synonymous with a silent observer. Hill v. State , No. 05-14-01445-CR, 2016 WL 1554932, *2 n.3 (Tex. App.—Dallas Apr. 14, 2016, no pet.) (mem. op., not designated for publication). “This is especially true where the judge is charged with developing facts to inform his exercise of discretion.” Id . (citing Marshall v. State , 297 S.W.2d 135, 136–37 (Tex. Crim. App. 1956)). Absent a clear showing of bias, we presume that a judge acted as a neutral and detached hearing officer. Brumit , 206 S.W.3d at 645. The term “bias” and “prejudice” do not include all unfavorable rulings towards an individual, but instead must “c onnote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either becaus e it is undeserved, or because it rests upon knowledge that the subject ought not to possess.” McDaniel v. State , No. 05-15-01086-CR, 2016 WL 7473902, at *4 (Tex. App.—Da llas Dec. 29, 2016, pet. ref’d) (mem. op., not designated for publication). Judicial remarks duri ng the course of a trial that ar e critical or disapproving of, or even hostile to counsel, the parties, or their cases, ordi narily do not support a bias or partiality challenge. Id . Further, bias almost never can be show n based solely on the judge’s rulings in a

case. See Charboneau v. State , No. 05-13-00340-CR, 2014 WL 7476392, at *4 (Tex. App.— Dallas Dec. 30, 2014, no pet.) (mem. op., not designated for publication) (citing Liteky v. United
States , 510 U.S. 540, 555 (1994) (judicial rulings “can only in the rarest circumstances evidence the degree of favoritism or antagonism required to establish bias”)). “Expr essions of impatience,–4– dissatisfaction, annoyance, and even anger” in the ordi nary conduct of court administration does not establish bias. Liteky , 510 U.S. at 555–56. Rather, judicial remarks during the course of a trial will support a bias or partiality challenge if “they display a deep-seated favoritism or antagonism that would make a fair judgment impossible.” Id . at 555. After reviewing the record, we conclude the tr ial court did not displa y bias or prejudice towards appellant thereby establ ishing a detachment fr om his role as a ne utral and detached hearing officer. Initially, we note this was a revocation heari ng; therefore, there were no concerns about the potential impact the judge’s comments may have had on a jury. See, e.g.,
Peterson v. State , No. 05-12-01417-CR, 2013 WL 5776287, at *3 (Tex. App.—Dallas Oct. 24, 2013, no pet.) (mem. op., not designated for publication) . The record does not indicate the trial judge predetermined his sentence. In fact, th e trial court imposed the minimum sentence for a state jail felony, indicating the tr ial court took leniency on a ppellant rather than imposing a harsher sentence despite appell ant violating his community supervision requirements. Further, a judge is permitted to directly que stion a witness, including a defendant, when seeking information to clarify a point. Conner v. State , No. 05-15-01004-CR, 2016 WL 3144180, at *2 (Tex. App.—Dallas June 2, 2016, no pet.) (mem. op., not designated for publication). The trial judge que stioned appellant about his employment. However, the record indicates the trial court also attempted to call and verify appellant’s employment with the VA, which was an attempt to obtain ex trajudicial information. But, th e trial court said he was unable to reach anyone. Therefore, the record indica tes the judge did not obtain any “knowledge that the subject ought not to possess.” See McDaniel , 2016 WL 7473902, at *4. As such, we cannot conclude the trial court’s sent ence was based on extrajudicial information, indicating “such a high degree of antagonism to make a fair judgment impossible.” Liteky , 510 U.S. at 555; see–5– Conner , 2016 WL 3144180, at *2 (“Without evidence in the record that the judge improperly considered an extrajudicial source, we cannot co nclude the judge’s actions were improper.”). In reaching this conclusion, we are unpersuaded by appellant’s reliance on Taylor v.
State , No. 05-13-01369-CR, 2014 WL 7476393 (Tex. A pp.—Dallas Dec. 30, 2014, no pet.) (not designated for publication). In that case, the defendant and his wife testified during his revocation hearing that he had been gainfu lly employed and changed his life by assuming responsibility for his family. Id . at *3. He submitted a letter of employment supporting his claim, which was “pivotal to his plea for mercy.” Id . The trial court called the employer and learned the defendant had been fired. Id . After making the phone call and returning from a recess, “the trial court appear ed to be angry and expressed an unwillingness to continue the proceedings to allow defense counsel to subpoen a the witness with whom the trial court had spoken.” Id . We concluded these were not the actions of an unbiased judicial officer, and the defendant was deprived of his due process rights and entitled to a new punishment hearing. Id

. Here, although the trial judge at tempted to verify employment , he admitted he was unable to do so. The record does not indicate the tria l judge thought appellant was lying or that he returned angry or with any unw illingness to continue the proceed ing. Rather, the judge asked both sides if they had “anything else,” and both said no. Thus, we cannot conclude the trial judge’s actions overcome the presum ption he acted as a neutral an d detached hearing officer.
Brumit , 206 S.W.3d at 645. We overrule appellant’s first issue. Allocution In his second issue, appellant argues the tr ial court violated hi s statutory right to allocution. The State concedes the trial court erred, but argue s appellant has not shown harm under Texas Rule of Appella te Procedure 44.2(b).–6– “Allocution” refers to a trial judge’s asking a criminal defendant to “speak in mitigation of the sentence to be imposed.” Eisen v. State , 40 S.W.3d 628, 631–32 (Tex. App.—Waco, 2001, pet.ref’d) (quoting A Dictionary of Modern Le gal Usage 44–45 (Bryan A. Garner ed., 2d ed., Oxford 1995)). Article 42.07 sets out the procedural rule implementing allocution. T EX
. C ODE C RIM
. P ROC
. A NN . art. 42.07. It requires a defendant be asked whether he has anything to say about why the sentence should not be pronounced agai nst him. It limits a defendant’s response to three reasons to prevent imposition of senten ce: that he (1) has re ceived a pardon; (2) is incompetent to stand trial; and (3 ) is not the person convicted. Id .; Brown v. State , No. 05-07- 00816-CR, 2008 WL 1810315, at *4 (Tex. A pp.—Dallas Apr. 23, 2008, no pet.). Appellant has not claimed that the three reas ons articulated in arti cle 42.07 apply to him or that he was harmed in any other way by the tr ial court’s error. Rather, the record reflects appellant had the right to present evidence at his revocation hearing supporting his mitigation request. Appellant took the stand and defens e counsel said, “Please tell the judge what you believe should be the right th ing to happen to you.” Appellant asked “to be reinstated on probation.” He testified he was employed and if given another chance, he would not let the court down. He attempted to show responsibility by explaining he was taking annual leave from his job to be present at the hearing. After appellant testified, the trial court asked defense counsel if it had anything else to which counsel answere d, “No, judge.” Thus, the record indicates appellant was given the opportunity to “speak in mitigation of the sentence to be imposed.”
Eisen , 40 S.W.3d at 632. Further, appellant has not indicated what additional mitigating evidence he would have raised if given the opportunity to addre ss the trial court free from crossexamination. Accordingly, appellant was not harmed by the trial court’s error. See, e.g., Garcia
v. State , No. 13-10-00281-CR, 2010 WL 4156458, at *3 (Tex. App.—Corpus Christi Oct. 21, 2010, pet. ref’d) (mem. op., not designated for publication); T EX
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. P. 44.2(b) (any non-–7– constitutional error that does no t affect substantial rights must be disregarded). Appellant’s second issue is overruled. In his final issue, appellant argues the trial court violat ed his common law right to allocution. We have previous ly questioned whether Texas rec ognizes a common law right to allocution. See Gallegos-Perez v. State , No. 05-16-00015-CR, 2016 WL 6519113, at *2 fn.4 (Tex. App.—Dallas Nov. 1, 2016, no pet.) (mem. op., not designated for publication). Regardless, as explained above, appellant has failed to show a ny harm from the trial court’s alleged error. T EX
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. P. 44.2(b); see also Amaya v. State , No. 05-16-00309-CR, 2017 WL 85421, at *3 (Tex. App.—Dallas Jan. 10, 2017, no pet.) (mem. op., not designated for publication) (assuming common law right to allocution argument wa s preserved, record indicated appellant offered evidence in mitigation of punish ment and had opportunity to tell court what he thought was relevant to sent encing). We overrule appe llant’s final issue. Conclusion The judgment of the trial court is affirmed.

Do Not Publish T EX
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. P. 47 170411F.U05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–8– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TEDDIE WILLIAMSON, Appellant No. 05-17-00411-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 292nd Judicial District Court, Dallas County, Texas Trial Court Cause No. F-1050574-V. Opinion delivered by Justice Bridges. Justices Myers and Sc henck participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered January 12, 2018.