Abraham Jacob PROENZA, Appellant v. The STATE of Texas

NO. PD-1100-15

Court of Criminal Appeals of Texas.

Delivered: November 15, 2017

Kristen Jernigan, Georgetown, TX, for Appellant.

John R. Messinger, Assistant State Prosecuting Attorney, Stacey Soule, Austin, TX, for The State.

Keasler, J., delivered the opinion of the Court, in which Hervey, Alcala, Richardson, Newell, and Walker, JJ., joined.

Abraham Proenza did not object when his trial judge began asking pointed, substantive questions of a witness bearing *789crucial defensive testimony. Is Proenza now barred from complaining of this error for the first time on appeal? Because the trial judge had an independent duty to refrain from conveying to the jury her opinion of the case, we hold that Proenza was under no obligation to object mid-trial. We affirm in part and will remand.

**I. FACTS AND PROCEDURAL POSTURE**

On the evening of August 11, 2008, Abraham Proenza walked into the bedroom of four-month-old baby boy AJV and noticed that he was blue and purple in color, apparently struggling to breathe. Although Proenza administered emergency medical care to AJV and promptly contacted 911, AJV died later that night. Proenza, who was neither AJV's biological nor adoptive father, admitted to police that he had noticed AJV vomiting several times in the weeks, days, and even hours leading up to his death. An autopsy revealed that AJV was severely malnourished and dehydrated at the time of his death.

A grand jury ultimately indicted Proenza for Injury to a Child, alleging that he intentionally and knowingly caused serious bodily injury to AJV by, among other things, failing to seek prompt medical care for AJV. Proenza would maintain at trial that he lacked the requisite intent to harm AJV because of his genuine, though perhaps mistaken, belief that he could not obtain medical care for AJV without some documentary proof that he was AJV's legal guardian. This belief was apparently based on a previous occurrence in which Proenza's father-in-law brought a granddaughter to a medical clinic but was turned away due to the father-in-law's inability to produce this very kind of documentation. The clinic at which this incident occurred, *Su Clinica* , happened also to be the location of one of AJV's pediatricians, Dr. Carol Grannum.

**A. At Trial**

The State called Dr. Grannum to testify to her prior treatment of AJV, as well as *Su Clinica* 's supposed requirement that a child be accompanied by a documented legal guardian in order to receive care. At one point, Dr. Grannum responded to a hypothetical situation posited by the defense wherein "somebody ... tries to take the child [to *Su Clinica* for medical care] that's not the parent and has no documentation as a guardian," by stating that in those circumstances, medical staff at the clinic "can't see the patient." She later clarified, however, that if a patient were in "acute distress," the patient would be stabilized on-site and someone from the clinic would call for EMS to take him or her to an emergency room.

After both parties had completed their questioning of Dr. Grannum and asked that she be excused, the trial judge interjected by directly asking Dr. Grannum for further details regarding the day-to-day enforcement of *Su Clinica* 's policy. Proenza did not object to this initial exchange between the trial judge and Dr. Grannum, instead opting to "clarify" the testimony brought out by the judge by further examining the witness. But this only prompted the judge to interject yet again, this time expressing skepticism that *Su Clinica* 's policy was enforced as stringently as defense counsel's follow-up questions suggested. In the course of this judicial witness examination, the trial judge informed Dr. Grannum, in the presence of the jury, *790that her own doctor allowed the judge's children to be accompanied by relatives without any sort of authorizing note.1

As to the entirety of this exchange between the trial judge and Dr. Grannum, the State concedes, and we agree, that "[t]he court's tone is fairly characterized as disapproval of the wisdom of such a practice and/or doubt that the policy is enforced as strictly as suggested by [Dr.] Grannum."2 Although the exchange was rather lengthy, Proenza did not lodge an objection before the trial judge that he considered her comments to be prejudicial. At the conclusion of the case, the jury found Proenza guilty and assessed his sentence at forty years' imprisonment.

**B. On Appeal**

Proenza complained before the Thirteenth Court of Appeals that "[t]he trial judge improperly commented on the weight of the evidence" when she engaged with Dr. Grannum. Observing that "[b]y statute, the trial court may not comment on the weight of the evidence or convey an opinion of the case in the jury's presence at any stage of trial," Proenza cited to Texas Code of Criminal Procedure Article 38.05 and this Court's plurality opinion in *Blue v. State* as the dual bases for his relief.3 Proenza did not brief or otherwise address the preservation-of-error issue.

Nevertheless, the court of appeals characterized Proenza's argument as a claim "that fundamental error occurred" when the trial judge examined Dr. Grannum "such that ... [Proenza] could complain ... for the first time on appeal."4 After considering our recent decision in *Unkart v. State*5 and one of the concurring opinions in *Blue* , the court of appeals "concluded that a defendant may complain for the first time on appeal about a trial court's lack of impartiality" under the rubric of fundamental error "so long as the trial judge's conduct is so egregious as to deem the judge biased on the matter[.]"6 Looking to the substance of what the trial judge said in Proenza's case, the court held that fundamental error of this kind had indeed occurred, thereby rendering a trial-level objection to the comments unnecessary to preserve complaint on appeal.7 The court went on to review Proenza's claim for constitutional harm, found that it could not say "beyond a reasonable doubt that the trial court's error did not contribute to Proenza's conviction," and reversed.8

**C. Petition for Discretionary Review**

The State raises three grounds in its petition for discretionary review:

> 1. Is there a common-law "fundamental error" exception to preservation that exists outside of the framework of *791*Marin v. State* , 851 S.W.2d 275 (Tex. Crim. App. 1993) ?

> 2. Is a complaint about a judge's comment on the evidence forfeited if not raised at trial?

> 3. The trial judge's exchange with a witness neither tainted the defendant's presumption of innocence nor vitiated the jury's impartiality, and it was harmless under any standard.9

After a brief discussion of the law applicable to improper judicial commentary and procedural default, we will address each of the State's grounds for review in turn.

**II. THE LAW**

**A. Judicial Comments**

Article 38.05 of the Texas Code of Criminal Procedure prohibits the trial judge from commenting on the weight of the evidence in criminal proceedings or otherwise divulging to the jury her opinion of the case:

> In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.10

Although Article 38.05 has been a fixture in our statutes for many years, this Court has had relatively few occasions, especially in the modern era, to discuss its meaning or application.11 To the extent that we have, we have fairly consistently stated that "[t]o constitute reversible error [under] Article 38.05... the comment must be such that it is reasonably calculated to benefit the State or prejudice the defendant's rights."12 If raised as a freestanding statutory complaint, error under Article 38.05 is subject to non-constitutional harm analysis.13

Of course, neither determining whether a particular comment violates Article 38.05 nor assessing the severity of harm, if any, flowing from an improper comment answers the question whether an appellate claim concerning the comment was properly preserved in the first place. Indeed, we have previously stressed the importance of keeping questions of preservation and harm distinct from one another.14 Understanding how our procedural-default jurisprudence applies to Article 38.05 claims *792thus requires us to look to our "watershed decision in the law of error-preservation,"15*Marin v. State* .16

**B. Procedural Default in this Context: *Marin* , *Blue* , and *Unkart***

In *Marin* , we described the Texas criminal adjudicatory system as containing error-preservation "rules of three distinct kinds: (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request."17 We have since referred to these separate classifications as category-one, -two, and -three *Marin* rights, respectively. We explained that procedural default-that is, "the loss of a claim or right for failure to insist upon it by objection"-"only applies to the last category," since these rights are typically considered to be "optional with the litigants."18 On the other hand, category-two rights, because they are "so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection," are only abandoned on appeal when the record reflects that they have been "plainly, freely, and intelligently" waived at trial.19 And category-one rights, being "systemic" and therefore "essentially independent of the litigants' wishes" can neither be forfeited nor even validly waived by the parties for appellate-review purposes.20 Utilizing this categorical framework has been immensely helpful in clarifying our procedural-default caselaw, since "[d]etermining which category a right occupies will usually settle the question of procedural default in the context of a particular case."21

However, deciding the procedural-default status of claims of improper judicial comments has presented a unique challenge for this Court. In *Blue v. State* , for example, the trial judge made a number of inappropriate comments to a venire of potential jurors, including that he "prefer[red] the defendant to plead [guilty]" rather than assert his right to a jury trial.22 Although the appellant "did not object to any" of the trial judge's statements in that case, he "asserted that when a trial judge makes a fundamentally erroneous statement, no objection is required" to present such a claim on appeal.23 Albeit for varying reasons, a fractured majority of this Court agreed.24

A four-judge plurality cited to then-Rule 103(d) of the Texas Rules of Evidence in support of the proposition that "we are authorized to 'tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court.' "25 Finding that "[t]he comments of the trial judge ... tainted appellant's presumption of innocence in front of *793the venire," the plurality determined that "fundamental error of constitutional dimension" had occurred, such that "appellant's failure to object ... did not waive error."26 A concurring opinion would have based the analysis more upon *Marin* 's procedural-default framework in arriving at this conclusion, as opposed to the plurality's apparent reliance upon the Rules of Evidence.27 The concurrence found that the improper comments were evidence that the defendant's right to an impartial judge-which the concurrence believed to be a category-one *Marin* absolute requirement-was violated.28 Accordingly, although both the plurality and concurrence would have found that the improper-judicial-comments claim in *Blue* was not forfeited by the appellant's failure to object, they were unable to agree upon a justification for that common ground.

We later acknowledged this lack of agreement in *Unkart v. State* .29 In *Unkart* , the trial judge made a number of comments in voir dire regarding the defendant's right not to testify that the defendant perceived as inappropriate.30 The defendant did not contemporaneously object, but complained on appeal that the judge's voir dire "improperly commented on his right not to testify."31 We observed that "[o]rdinarily, a complaint regarding an improper judicial comment must be preserved at trial," but noted that in *Blue* , "we granted relief on an improper-judicial-comment complaint that was not preserved at trial."32 We declined to treat *Blue* as precedential on the issue of procedural default solely because the "rationales of the plurality and concurring opinions" in *Blue* were "entirely disparate."33 But the *Blue* opinions were neither expressly overruled nor even cast into doubt-they could still "be considered for any persuasive value they might have."34 And indeed, we ultimately resolved *Unkart* via the merits determination that "the circumstances [in *Unkart* ] differ[ed] significantly ... from the circumstances in *Blue* ."35

Our silence in *Unkart* on the issue of "fundamental error" may have been why the court of appeals in this case said that *Unkart* "left the door open for a judicial comment that can rise to the level of fundamental error."36 But even before *Unkart* , this Court had already rejected the idea that "fundamental error," as a freestanding doctrine of error-preservation, exists independently from *Marin* 's categorized approach.

**III. ANALYSIS**

**A. There is no common-law "fundamental error" exception to the rules of error preservation established by *Marin* .**

In *Saldano v. State* , we noted that before *Marin* "this Court ... recognized *794more than a dozen ... kinds of fundamental error."37 We agreed with Professors Dix and Dawson that our pre- *Marin* error-preservation jurisprudence was regrettably little more than a series of "piecemeal developments," each with "somewhat different rationales."38 As a consequence, questions of procedural default could not "be explained by any ... unifying principle or principles."39 This is why, in *Saldano* , we lauded *Marin* as "a watershed decision in the law of error-preservation"-because *Marin* "suggest[ed] ... a framework" for a set of unifying procedural-default principles that was sorely needed.40 In *Mendez v. State* , we later re-iterated *Marin* 's subsumption of any "fundamental error" doctrine when we said that "[q]uestions of 'fundamental error' now are considered in its framework."41

Although this precedent would seem to decide the issue before us, we note that the doctrine of "fundamental error" may be understood in one of two ways. The first formulation of the doctrine may be stated thusly: Some claims, by their very utterance and irrespective of the level of harm resulting therefrom, are of such a "fundamental" nature that they are worth reaching on appeal whether they were preserved at trial or not. But to say that an error is "fundamental" in this sense is functionally the same as saying that it is a *Marin* category-one or -two claim. It was in this sense that, in *Mendez* , we said that "[q]uestions of 'fundamental error' now are considered in [ *Marin* 's ] framework."42 And as to this formulation of the doctrine, we see no practical or legal basis for contradicting what we said in *Saldano* and *Mendez* ; our reasoning regarding "fundamental error" in those cases remains as true today as it was when they were decided.

The second formulation, and the one apparently (if not explicitly) adopted by the court of appeals in this case, may be stated this way: Some claims are such that, while normally requiring a trial-level objection to preserve error, they are nevertheless reviewable without an objection when the harm resulting from the error is sufficiently "fundamentally" egregious. This formulation is aptly described as a "harm-based" theory of error preservation. Both the court of appeals, in its opinion,43 and Proenza, in his brief on the merits before us,44 cite to our opinion in *Jasper v. State*45 in support of such a theory.

In *Jasper* , the appellant claimed that "his right to a fair trial by an impartial jury was violated by comments of the trial judge" when the judge "correct[ed] a misstatement ... of previously admitted testimony" and expressed "irritation at the defense *795attorney" in so doing.46 Although the appellant did not object at trial, we claimed that "it is the province of this Court to 'take notice of fundamental errors affecting substantial rights although they were not presented to the court.' "47 We cited what was, at that time, codified as Texas Rule of Evidence 103(d) in support of this claim, which read: "Nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court."48 This rule has since been re-codified as Texas Rule of Evidence 103(e), and now reads slightly differently: "In criminal cases, a court may take notice of a fundamental error affecting a substantial right, even if the claim of error was not properly preserved."49 Proenza, too, points to this rule as proof of the existence of a freestanding doctrine of "fundamental error."50

But reading Rule of Evidence 103(e) -and, by extension, *Jasper* -so as to divine a freestanding, harm-based doctrine of error preservation is contrary to the language and drafting history of the rule, as well as our own post- *Marin* caselaw. Rule 103(e) is a "Rule of Evidence" by its very style. It is located in a subheading that is titled "Rulings on Evidence."51 It is therefore inaccurate to cast Rule 103(e) as an exception to the rules of procedural default in situations where-as in this case, *Blue* , and *Jasper* -the perceived error did not arise from the trial judge "ruling to admit or exclude evidence."52

Even were we inclined to confine the Rule 103(e)"fundamental error" exception to evidentiary situations, we note that as originally drafted in 1986, "[ Rule 103(d) ] was intended to be purely declarative of prior law."53 Rule 103(d), then, was meant only as an acknowledgment that certain patchwork rights had been accorded a "fundamental" status in our pre- *Marin* procedural-default body of law.54 As previously stated, *Marin* subsumed this body of law and provided a framework under which it was to be applied going forward. Rather than existing in conflict with one another, Rule 103(e), *Jasper* , and *Marin* all stand for the same uncontroversial proposition: "Some rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system."55 The "fundamental error[s]" described in Rule 103(e) and *Jasper* are simply category-one and -two *Marin* errors.

That *Marin* leaves no room for a harm-based doctrine of error-preservation is further *796bolstered by our subsequent caselaw on this subject. We have characterized *Marin* as holding "that the general preservation requirement's application turns on the nature of the right allegedly infringed,"56 as opposed to "the circumstances under which it was raised."57 That is, a proper determination of a claim's availability on appeal should not involve peering behind the procedural-default curtain to look at the particular "circumstances" of the claim within the case at hand. This is because "[d]etermining a threshold issue of procedure based on the claim's merits results in an analytical hiccup[.]"58 So we have said that even errors that may be cured only by mistrial59 and rights whose timely assertion lead only to dismissal60 may still be forfeited by failure to raise or urge them at trial. To adopt a model of error preservation that incorporates a "harmfulness of error" standard would fly in the face of these settled jurisprudential standards-and would, in addition, risk subverting the gate-keeping intent underlying *Marin* .

Proenza cautions that doing away with the doctrine of "fundamental error" is tantamount to a ruling that "no defendant in a situation such as the present case" would "ever be able to obtain relief without preserving error [,] no matter how egregious the error is."61 He is mistaken. In the first place, we have previously said that even "incurable" errors may sometimes be forfeited by the defendant's failure to object at trial.62 Secondly, we do not repudiate the word "fundamental" as a descriptor of rights or errors in appellate claims; what we reject is the use of this term whenever it is used to connote a harm-based doctrine of error preservation. Once again, the question of error preservation turns not upon the "circumstances under which [an error] was raised," but upon the "nature" of the error itself.63 We agree with the State that "[f]or the purpose of preservation ... it should not matter that some comments are worse than others; that is purely a function of harm."64

Finally, and most importantly, our rejection of a freestanding doctrine of "fundamental error" does not mean that *Marin* 's classes of non-forfeitable claims-categories *797one and two-have somehow disappeared. To the contrary, our ruling today simply changes the operative question in determining whether a claim of improper judicial commentary is subject to procedural default. Instead of the operative question being whether, in a particular case, a trial judge's comments rise to the level of "fundamental error," the operative question is now whether, in the Texas adversarial system as a whole, claims of error under Article 38.05 fall within *Marin* 's third class of forfeitable events.

**B. Under *Marin* 's framework, a trial judge's improper comment on the evidence is not forfeited by mere inaction at trial.**

*Marin* places particular emphasis on the various respective "dut[ies]" faced by trial judges and litigants in our adversarial adjudicatory system.65 "The trial judge has no duty to exclude," for instance, hearsay evidence absent a partisan objection "and would probably fall into error if he did."66 Neither does the trial judge have an "independent duty ... to shuffle the [venire] panel or to excuse [a] veniremember" subjected to peremptory challenge.67 Indeed, "[t]he trial judge as institutional representative has no duty to enforce" any forfeitable right "unless requested to do so."68 In this sense, the responsibility of asserting forfeitable rights belongs to the litigants, and not the trial judge. This is why such rights will be unavailable on appeal if not urged at trial. A court of appeals should not find error in a trial judge's inaction when contemporaneous action is neither requested nor independently required of her.

By the same token, however, a litigant "need make no request at trial for the implementation of" waiver-only rights precisely because "the [trial] judge has an independent duty to implement them absent an effective waiver."69 When it comes to non-forfeitable rights, the legal responsibility of assuring compliance with these rights falls squarely upon the trial judge. And when these kinds of rights are at stake, a court of appeals may rightly find error in a trial judge's conduct, even when the parties do not complain at trial, because the law imposes upon the judge a duty that exists independently of the parties' decision to speak up. As we would later unanimously say in *Mendez v. State* : "A law that puts a duty on the trial court to act *sua sponte* , creates a right that is waivable only. It cannot be a law that is forfeitable by a party's inaction. This was the precise holding of *Marin* ."70 In accordance with *Mendez* , the question of whether Article 38.05 is a category-three forfeitable right under *Marin* turns upon whether the trial judge has an independent duty to ensure compliance with Article 38.05, or whether compliance need be given only upon partisan request.71

*798We note initially that the statute itself is written in mandatory terms: "the judge shall not discuss or comment upon the weight of the [evidence] ... nor shall he ... make any remark calculated to convey to the jury his opinion of the case."72 While we have previously said that a statute being "couched in mandatory terms ... does not necessarily mean that the statute identifies an absolute prohibition or a waiver-only right,"73 we note that the statute in this case is both (1) couched in mandatory terms and (2) directed at the trial judge herself. There is no ambiguity within the statute as to who bears the ultimate responsibility of compliance with this law-the language of the statute speaks for itself in placing this responsibility squarely upon the judge.74 The statute speaks neither of "a party's request"75 nor the "motion of the defendant,"76 but simply commands that the judge comply. It would seem, then, that Article 38.05 by its very text creates "a duty on the trial court to act *sua sponte* "77 -or rather, a duty to refrain *sua sponte* from a certain kind of action. To this extent, we agree that this "cannot be a law that is forfeitable by ... party[ ] inaction."78

To be sure, there is real utility in requiring a timely objection upon perceived error, including that the respective parties are not "burdened by appeal and retrial."79 But *Marin* took special pains to describe procedural default rules that made sense "[i]n the context of the whole system."80 Thus, the utility associated with enforcement of forfeiture rules never outweighs "fundamental systemic requirements or ... rights so important that their implementation is mandatory absent an express waiver."81 If a category of error by its very utterance tends to threaten the integrity of the criminal adjudicatory process itself, we may, consistent with *Marin* , deem it proper for appellate courts to at least consider the merits of these claims-even in the absence of a trial-level objection-and take corrective measures as appropriate.82

In this exact fashion, we believe that compliance with Article 38.05 is *799"fundamental to the proper functioning of our adjudicatory system," such that it should "enjoy special protection" on par with other non-forfeitable rights.83*Marin* 's description of the adversarial system depends upon, or at the very least assumes, the decision-maker's impartiality. When a trial judge has no interest in the outcome, it is fair to assume that those rights the litigants want enforced, they will ask to be enforced. It behooves the litigants to urge their rights at trial precisely because they can trust the trial judge to fairly consider the claims and reach a ruling that is based in law. And when they do not so desire to urge their rights, it is sensible to assume that their "failure to speak up is quite enough."84

But when the trial judge's impartiality is the very thing that is brought into question, *Marin* 's typical justification for requiring contemporaneous objection loses some of its potency. When a litigant perceives a violation of Article 38.05, it is not a foregone conclusion that his silence indicates a relinquishment of his rights thereunder. Silence may just as fairly indicate a litigant's calculation that, if the trial judge is indeed partial to the opposing side in her evidentiary commentary, she will likewise display partiality in ruling upon the Article 38.05 objection itself. An objection under these circumstances would be futile at best, and at worst could reinforce to the jury that the trial judge stands solidly in the corner of the opponent. Article 38.05 violations therefore disrupt the delicate incentive structure that, under *Marin* 's framework, is "so fundamental" to the proper functioning of our system.

This is to say nothing of the important role that Article 38.05 plays in protecting the perception of the trial judge's impartiality in front of the jury. We have previously stated that Articles 36.1485 and 38.05 reflect a "devotion" within the Texas adversarial system to the proposition that "the judge is a neutral arbiter between the advocates."86 When a litigant contends that the trial judge has shirked her duty by openly "convey [ing] to the jury [her] opinion of the case,"87 the litigant has necessarily alleged that an alarming perversion of this role has taken place. And because we have said that "[j]urors are prone to seize with alacrity upon any conduct or language of the trial judge," we believe such an allegation to be sufficiently weighty as to merit appellate review even in the absence of a partisan objection at *800trial.88 As we said in *Grado v. State* , "[a] contrary conclusion has the potential of shaking the public's perception of the fairness of our judicial system and breeding suspicion of the fairness and accuracy of judicial proceedings. The nature of this right is too significant to the judicial system to conclude that it is extinguished by mere inaction."89

Of course, we do not hold today that every unscripted judicial comment in fact disrupts the proper functioning of the judicial system or weakens the public's faith in our trial judges.90 This is because, as the dissent rightly points out, "[m]ost trial judges are hard-working and well-meaning [.]"91 But we also believe that allegations of impropriety under Article 38.05 tend, as a whole, to implicate these concerns whether each individual claim has merit or not. Thus, if a judicial comment is found to be errorless or insignificant in the context of a particular trial, that is a good reason to conclude that any resulting claim of error should be denied on its merits or else declared harmless-it is not a good reason to say that the claim was never preserved in the first place. We do not, then, suggest that every claim brought under Article 38.05 is meritorious or even likely to be so; we speak only on the issue of preservation.

Nevertheless, the dissent fears that, by our holding today, "the Court ... fashions a regime that will entangle the appellate courts in micromanaging the conduct of jury trials."92 It concludes that "equity and policy favor giving trial judges the opportunity to address and cure complaints about judicial comments,"93 and observes by way of comparison that "allowing judicial comments on the evidence is a common-law tradition in federal court[.]"94 But federal law has no statute explicitly prohibiting judicial commentary on the weight of evidence in front of the jury. Texas does.95 We are bound by the will of the Legislature as expressed in its enactments-even when those enactments break from vaunted "common-law tradition[s]"96 or the practices of other jurisdictions. And this deference to the Legislature ultimately cuts both ways. Should the Legislature agree that we have ranked Article 38.05 too highly in the pantheon of Texas trial rights, or that the rule announced today places too heavy a burden on the dockets of our appellate courts, it is certainly within the Legislature's authority to provide tailored guidelines about whether, when, and to what extent a litigant must object to preserve an appellate complaint under Article 38.05. Until then, *Mendez* provides the clearest answer to the question before us today: "A law that puts a duty on the trial court to act *sua sponte* , creates a right that is waivable *801only."97

In light of the above, we hold today that claims of improper judicial comments raised under Article 38.05 are not within *Marin* 's third class of forfeitable rights. Rather, we believe that the right to be tried in a proceeding devoid of improper judicial commentary is at least a category-two, waiver-only right.98 Because the record does not reflect that Proenza plainly, freely, and intelligently waived his right to his trial judge's compliance with Article 38.05, his statutory claim in this matter is not forfeited and may be urged for the first time on appeal. In this regard, the ruling of the court of appeals is affirmed.

**C. Was Proenza harmed?**

We have previously said that "when only a statutory violation is claimed, the error must be treated as non-constitutional for the purpose of conducting a harm analysis."99 Texas Rule of Appellate Procedure 44.2(b), the non-constitutional standard for reversible error in criminal cases, requires that "[a]ny other [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."100 In apparent recognition of this principle, Proenza, in his brief before the court of appeals, not only cited Article 38.05 in support of his claim but also called for non-constitutional harm review: "Having shown violations of Texas Code of Criminal Procedure 38.05, Appellant must now show a substantial right was affected as a result [.]"101

However, as the State rightly points out, both the majority and dissenting opinions below applied the standard of harm that is associated with constitutional error, despite Proenza's assertion of a bare statutory claim. Texas Rule of Appellate Procedure 44.2(a) states that "[i]f the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment."102 The majority expressly applied, and cited to, this constitutional-error harm standard when it could not "say beyond a reasonable doubt that the trial court's error did not contribute to Proenza's conviction."103

In this, the court of appeals erred. Because Proenza claimed only statutory error and called for non-constitutional harm analysis, the court of appeals should have applied the harm analysis contained in Texas Rule of Appellate Procedure 44.2(b). This is not to say that the court of appeals's ultimate determination that Proenza was harmed was incorrect *per se* ; but the court should have examined this issue under the correct standard. Rather than undertake this examination for the first *802time on discretionary review, we think it more appropriate for the court below to revisit its harm analysis, this time applying the proper standard under Rule 44.2(b).104

**IV. CONCLUSION**

*Marin* described the trial judge as an "institutional referee;"105 she is not, to continue the metaphor, just another player on the field. Knowing this, litigants in our system do not-and should not-expect the judge to stand in open opposition to their desired verdicts, as they should with their opponents. And the trial judge, for her part, should not need the litigants to remind her that hers is not the task "of producing the evidence [and] arguing its significance[.]"106 She should know without being prompted that any divulgence to the jury of her opinion in the case would, if nothing else, make her seem "involved in the fray."107 Our system's basic structure, then, simply does not contemplate that litigants should bear the duty to request Article 38.05 compliance before it will be given. As in *Marin* , we think it would be "dysfunctional" to interpret Article 38.05 so as "to foreclose review of [this] trial defect[ ] for which the litigants are not legally responsible."108

Although Proenza did not contemporaneously object to the trial judge's improper questioning of a witness, he was nevertheless entitled to appellate review of his claim that, in so doing, the judge violated Texas Code of Criminal Procedure Article 38.05. This is not because the trial judge's comments rose to the level of "fundamental error," but rather because claims brought under Article 38.05 are not, in *Marin* 's framework, subject to forfeiture by inaction. We remand this case to the court of appeals to apply the proper harm analysis on the merits of Proenza's claim.

Newell, J., filed a concurring opinion, in which Hervey and Alcala, JJ., joined.

Keller, P.J., filed a dissenting opinion, in which Yeary and Keel, JJ., joined.

**APPENDIX**

> [PROSECUTOR]: Nothing further from this witness, may this witness be excused?

> THE COURT: Ma'am, once the child is a registered patient of the clinic, what do you all require for documentation on follow-up visits?

> THE WITNESS: Meaning if the patient needs to come back, we would give them a little note saying you [are] due back in a week or in two weeks or two months.

> THE COURT: So in this case, you had given [AJV] a follow-up appointment.

> THE WITNESS: Yes.

> THE COURT: When he-when [AJV] is presented for his return visit, what do you require if anything, for the child to be seen?

> THE WITNESS: We would see the patient unless the patient wasn't brought in, I guess, by mom or dad, doesn't have a note saying that whoever is bringing the patient in.

> *803THE COURT: But if he has a card, they just present it and go in to be seen?

> THE WITNESS: He doesn't even need a card. You just have to present your name.

> THE COURT: You just sign in on the front?

> THE WITNESS: Yeah, and present your name.

> THE COURT: And they pull the file and take him in.

> THE WITNESS: And they pull the file and then they see which doctor can see them, and we see them.

> THE COURT: So you don't go through paperwork each time you come to the clinic?

> THE WITNESS: No, not if the patient has already been seen, and if that's the patient's medical home.

> THE COURT: Okay.

> [DEFENSE COUNSEL]: May I follow up, Judge, just to clarify?

> THE COURT: Sure.

> [DEFENSE COUNSEL]: Doctor, you said that only if they brought in the patient or a guardian with authorization, that's what you mean, even if it's a follow-up.

> THE WITNESS: Right, but the patient has to be with a legal guardian or with the mom or dad.

> [DEFENSE COUNSEL]: Because even though it's a follow-up, you are still not going to see-well, we are talking about a minor child. You are not going to see the child unless the parent or guardian or someone with documentation authorized for you all to give treatment, correct?

> THE WITNESS: Correct.

> THE COURT: But do you actually ask those questions? Or do you just assume that's the parent that's bringing the child?

> THE WITNESS: No, no, no, because a lot of times, patients come without a mom or a dad, and then the triage nurse would actually come up to us and say, Doctor Grannum, this patient doesn't have a mom or dad, you know, and I mean, they come and they ask us.

> THE COURT: Is that on the first visit or in the follow up visit?

> THE WITNESS: Even on a follow-up visit, even on a follow-up visit.

> THE COURT: Okay. Tell me about that process.

> THE WITNESS: I'm not sure exactly what the triage nurse asks, but if it's the patient comes into the front desk, if it's not mom and it's not dad and they don't have a paper with their name on it, and I guess they present an ID showing that this is who they say they are, usually we don't see the patient.

> THE COURT: Okay. So, on the follow-up visits, they have to show documentation, that's just y'all's procedure?

> THE WITNESS: Right. It has to be mom or dad, or there has to be a letter that the person brings in with his or her name on it authorized by mom or dad.

> THE COURT: Oh, just any letter would do saying, hey ... I give authority to [name] to take my child to the clinic?

> THE WITNESS: Actually, we also have a form from our clinic that we give to mom and dad if they want to send the patient with somebody else. We actually have our own form.

> *804THE COURT: Oh, okay. But as long as you have that form, they will see the child?

> THE WITNESS: And it has to be in the chart.

> THE COURT: And they ask for that each time, even though the child has already been cleared for treatment?

> THE WITNESS: It's-it's routine that if it's not mom and dad and if that person who is bringing the child in, if that name is not on the form, that person cannot bring the child in.

> THE COURT: And is there any such form like that for [AJV]-

> THE WITNESS: I can check.

> THE COURT: -that was filled in at the first visit?

> THE WITNESS: I can check.

> JUROR: May I ask a question?

> THE COURT: You can't, I'm sorry. You may not, but if you will write it down, I'll consider it. Any objections to a juror asking a question or writing it down?

> [DEFENSE COUNSEL]: As long as it's done the proper way, Judge, which is through the foreperson.

> THE COURT: Well, they don't have a foreperson.

> [DEFENSE COUNSEL]: Well, not yet, but that would be my suggestion.

> THE COURT: And we need to wait until y'all are deliberating. Doctor, is that a clinic policy?

> THE WITNESS: Yes.

> THE COURT: And do you know what the purpose of that is?

> THE WITNESS: No.

> THE COURT: Because, I mean, you have already-what kind of-was the child on insurance, Medicare, Medicaid? What was the child [AJV]-

> THE WITNESS: I don't know, but I can look. The first pay says sliding fee, that usually means there is no insurance, but I need to keep looking. And the the second page says Medicare-

> THE COURT: So if he is on Medicare.

> THE WITNESS: And then the third page says sliding fee, fourth says sliding fee, sliding.

> THE COURT: So sliding means that they are going to check your income, and then charge you based on that, am I right?

> THE WITNESS: Yes, that's what that means. But maybe there's another form that says-usually when the babies come in first, they don't have the Medicare yet, and it says sliding, and then later on, if they get their Medicare, then there is something else, and then it says Medicaid here on page 20.

> THE COURT: And Doctor, do you know-you said you don't know the reason for that.

> THE WITNESS: Yeah.

> THE COURT: And what evidence do they have as to who the parent is?

> THE WITNESS: I don't know what they do at the front desk. I'm assuming they ask for an ID or-

> THE COURT: But how do you mean?

> THE WITNESS: A birth certificate or something, I don't know.

> THE COURT: Do they keep a copy of the birth certificate?

> *805THE WITNESS: Not here, I don't see one here, and I don't think they do, but I don't know.

> THE COURT: So, I could show up and say that's my child, treat him.

> THE WITNESS: Right.

> THE COURT: How would you know otherwise?

> THE WITNESS: Right. Yeah, that's a question I would have to ask the front desk.

> THE COURT: Okay. All right. Thank you. Because I know-maybe my doctor is very lax because they let any of my sisters and any of my brothers take my kids.

> THE WITNESS: No, we have to actually have-

> THE COURT: When I am in trial, I can't go, so-

> THE WITNESS: I am sure that can be done there once there is something written in the chart that says that those people are allowed to see you kid.

> THE COURT: Because you are actually the one that is going to treat somebody.

> THE WITNESS: Right, but I work at *Su Clinica* , it's not my private clinic, and the front desk sets their rules.

> THE COURT: I see.

> THE WITNESS: And we follow orders. It's not my own clinic, I'm sorry.

> THE COURT: No, thank you for your service. I appreciate what you do.

> THE WITNESS: Thank you.

Newell, J., filed a concurring opinion in which Hervey and Alcala, JJ., joined.

> "Your honor, with all due respect, if you're going to try my case for me, I wish you wouldn't lose it."

> -Frank Galvin, *The Verdict.*1

I agree with the Court's conclusion that a judge has an independent duty to refrain from conveying to the jury his or her opinion of the case. I agree with the Court's conclusion that compliance with Article 38.05 is fundamental to the proper functioning of our adjudicatory system. And, I agree with the Court's holding that Appellant was not required to object to the trial court's comments in this case in order to preserve the right to complain about those comments on appeal, regardless of the degree to which they impacted the case. Indeed, there is much that I agree with in the Court's opinion.

However, I write separately because I believe this case illustrates why we should be wary about fetishizing our "watershed decision" in *Marin v. State.*2 First, it must be remembered that *Marin* 's examination of the system of adjudication at work in Texas was only a "cursory" one.3 We made no claims that we had exhaustively examined every evidentiary or procedural rule and every statutory and constitutional right applicable to a criminal proceeding. So while the observations in *Marin* regarding different categories of rights are illuminating, they did not provide a full diagnosis. It was simply triage.

Given *Marin* 's admittedly cursory examination, it comes as no surprise that not all "rights" fit neatly into one of *Marin* 's three categories. This case is a prime example.

*806Here, we could simply say that the statute at issue imposes a mandatory, statutory duty on a trial judge and therefore the statutory right fits in *Marin* 's second category. But, the Court goes further to note that the right to an impartial judge is so fundamental to our adjudicatory system that no objection is necessary. This suggests that a violation of Article 38.05 (assuming that a trial judge's statement actually qualifies as a "comment") falls within *Marin* 's first category-a right that cannot be waived. Yet, we hold that it's not necessary to determine if Article 38.05 creates a "right" that cannot be waived at all so long as we determine that it at least fits in category two and must be affirmatively waived.

And, of course, not every trial judge's comment that runs afoul of Article 38.05 can be said to completely wreck the proper functioning of the adjudicatory system. What if the comment does not affect a litigant's substantial rights? In those situations, it seems to make practical sense to categorize the "right" enshrined in Article 38.05 as a category-three *Marin* right. After all, if the comment does not affect the proper functioning of the adjudicatory system, then the stated rationale for removing a contemporaneous objection requirement fades.4

So, is *Marin* doing anything at all? In this case is it the *Marin* category that determines the need for error preservation, or a call to the proper functioning of the adjudicatory system? For all the talk of doing away with the concept of "fundamental error," holding that the violation in this case doesn't require an objection because "an impartial judge is fundamental to our adjudicatory system" sure sounds like a determination of fundamental error. It seems to me that *Marin* is good at explaining how to treat violations of particular rights if we already know how those rights should be categorized. It is not as helpful with categorizing the rights in the first place or otherwise explaining why one system of valuation is more valid than another.

All that said, I join the Court's opinion because it gets the most important thing correct. The inquiry should always start with a determination of the nature of the right at issue rather than concerns about how efficiency favors a contemporaneous objection requirement. Pointing to the administrative burden created by the rejection of a contemporaneous objection requirement prioritizes efficiency concerns over the rights of the litigants. Moreover, it encourages defining the rights at issue down so that efficiency arguments appear more weighty. To be sure, this decision will lead to more claims that something the trial court said amounts to a "comment" or more opinions deciding whether a particular statement violated a litigant's substantial rights. But the flip side of the argument *807is more damning. It risks letting a conviction before an admittedly partial tribunal stand simply for want of an objection to a demonstrably biased judge.

For these reasons, I concur and join the Court's opinion.

Keller, P.J., filed a dissenting opinion in which Yeary and Keel, JJ., joined.

Traditionally, the rule was that a party had to object at trial in order to preserve a complaint about an improper judicial comment.1 Then, in a plurality opinion in *Blue* ,2 this Court said that some judicial comments-if they were bad enough-could constitute reversible error even if they were raised for the first time on appeal.3 Then, in *Unkart* ,4 we held that *Blue* had no precedential value,5 which has resulted in a steady decline in the number of opinions citing to *Blue.* Now, however, the Court greatly expands the effect of the non-majority, non-precedential holding in *Blue* by exempting all judicial comments in front of a jury from the contemporaneous-objection rule. In doing so, the Court overturns decades of caselaw, gives inventive appellate attorneys the ability to blindside trial judges, and fashions a regime that will entangle the appellate courts in micromanaging the conduct of jury trials. After this opinion, *every* statement made by a trial judge in front of a jury is subject to being examined under an appellate microscope. This is true no matter how innocuous the statement and regardless of whether anyone at trial perceived it to be offensive.

Since the beginning of the millennium, *Blue* has resulted in a steady stream of opinions in which courts of appeals consider and reject unpreserved improper-comment claims or, occasionally, find reversible error-only to be reversed by this Court every single time that decision is challenged here. Now that even minor comments are fair game on appeal, the number of meritless claims can only grow. Instead of continuing this exercise in futility, we should disavow *Blue* in its entirety6 and hold that complaints under Article 38.05, just like most other claims, are subject to forfeiture.7

**A. Requiring Preservation is the General Rule**

Texas Rule of Appellate Procedure 33.1 requires the appealing party to raise a *808complaint at trial before he can raise it on appeal.8 Although the rule speaks of no exceptions, we have recognized the existence of exceptions under the three-tiered approach to error preservation in *Marin.*9 Under *Marin* , our system contains three types of rules: (1) absolute or systemic requirements or prohibitions, (2) rights that must be implemented unless expressly waived, and (3) rights that are implemented upon request.10*Marin* was a "watershed" decision in the law of error preservation,11 and questions of "fundamental error" must now be considered within its framework.12

*Marin* explained that most rules fall within its third category-rights that are forfeited by inaction.13 All but the most fundamental rights are forfeited if not insisted upon by the party to whom they belong.14 Almost all error-even constitutional error-may be forfeited if the appellant fails to object.15 We have characterized the first two *Marin* categories as "small" or "narrow."16

A logical corollary of the fact that almost all errors fall within the third *Marin* category is that, when an appellate court is faced with categorizing a particular rule, a conclusion that the rule falls within *Marin* category three is the default position. According a particular rule status under one of the first two categories of *Marin* requires sufficient reasons to justify that decision. Otherwise, the norm articulated by the contemporaneous objection requirement found in Rule 33.1 should control. The question in this case, then, is whether there is sufficient justification for exempting the type of complaint before us from the usual rules of procedural default.

**B. The Statutory Language Does Not Require Judicial-Comment Complaints to be Non-Forfetitable**

The statute prohibiting judicial comments provides:

> In ruling upon the admissibility of evidence, the judge shall not discuss or *809comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.17

The Court points out that the statute is phrased in mandatory language ("shall not"), but as the Court also recognizes, mandatory language, and the use of the word "shall" in particular, "does not necessarily mean that the statute identifies an absolute prohibition or a waiver-only right that can be invoked for the first time on appeal under the *Marin* categories."18 In *Trinidad v. State* , we so held in the course of determining that a violation of the prohibition against a person being with the jury while it is deliberating was forfeitable if the defendant was aware of the violation.19 The statute in that case is similar to the statute at issue here in that both use "shall" in conjunction with a negative: In *Trinidad* , the statute commanded, "No person shall be permitted to be with the jury while it is deliberating,"20 while the statute at issue here says that the judge "shall not discuss or comment upon" the weight of the evidence.21 Similarly, the statutory exclusionary rule found in Article 38.23 provides that, "No evidence obtained ... in violation of [law] shall be admitted in evidence against the accused on the trial of any criminal case."22 Despite the negative "shall" command, we have construed the statutory exclusionary rule to be a forfeitable right.23

It is true that the judicial-comment statute specifically refers to the "judge" in connection with its mandatory language, but it is hard to imagine how a judicial-comment statute could omit a reference to the judge. And while Article 38.23 does not refer specifically to the judge, its "shall" language clearly applies to the judge, who is tasked with ruling upon the admissibility of evidence. Moreover, the judicial-comment statute, codified at Article 38.05, is in Chapter 38 of the Code of Criminal Procedure, which is titled "Evidence in Criminal Actions," and which contains a number of evidentiary provisions that prescribe forfeitable rights.24 That is not to say that every provision in Chapter 38 prescribes a forfeitable right, but the status of Article 38.05 seems sufficiently ambiguous to require resort to other factors to determine the nature of the right in question.

**C. Historically, Judicial-Comment Complaints Had to be Preserved**

The Texas statutory prohibition against judicial comments is not required by the United States Constitution: allowing judicial *810comments on the evidence is a common-law tradition in federal court,25 and federal trial courts are explicitly allowed to question witnesses.26

We have said, "Ordinarily, a complaint regarding an improper judicial comment must be preserved at trial."27 The use of the word "ordinarily" is a product of the plurality decision in *Blue* , which granted relief as a result of a judicial comment despite the absence of an objection.28 Before *Blue* , no such qualification was employed. In *Minor v. State* , we said simply, "When no objection is made at trial to the judge's statements nor any request made to instruct the jury, nothing is presented for review."29 Other cases that predated *Blue* made similar unqualified statements in rejecting unpreserved judicial-comment claims.30 Even when a comment was thought to indicate judicial bias, the parties have historically been required to raise such claims at trial:

> Prejudice of a trial judge not based on interest is not a legal disqualification. If prejudice or opinion of guilt is indicated or shown the judge's rulings are subject to close scrutiny. The right to complain lies not in the alleged prejudice of the judge but in any errors in his rulings *811and conduct of the trial. The appellant complains of several errors in the trial whereby the trial judge allegedly manifested prejudice and commented on the evidence on numerous occasions. When no objection is made at trial to the judge's statements nor any request made to instruct the jury, nothing is presented for review."31

**D. Equity and Policy Favor Giving Trial Judges the Opportunity to Address and Cure Complaints about Judicial Comments**

One of the rationales for requiring a timely objection at trial is to give the trial judge the opportunity to cure error.32 In explaining the law and giving instructions, a trial judge might comment on evidence without meaning to. It is possible that such an inadvertent comment could be prejudicial but could and would be cured if the impropriety were explained to the trial judge or otherwise brought to the judge's attention. A review of cases suggests that an objection is not necessarily futile, because there are cases where a judge has given a curative instruction when confronted with a claim that the judge made an improper comment.33 An instruction to disregard is generally sufficient to cure error *812from an improper judicial comment.34 As Professors Dix and Schmolesky have observed, "If a trial judge improperly comments on the weight of the evidence, an instruction to the jury to disregard is generally effective."35

Moreover, anything a judge says in front of a jury could potentially be examined for its propriety.36 An inventive appellate attorney might be able to find fault with a statement that no one who attended the trial thought was objectionable. And the appellate court might be hampered by the fact that it reviews only a cold record and is not able to view tone and demeanor37 that could mark the difference between an innocent statement and a prejudicial comment. By contrast, the parties at trial are in a position to observe the trial judge's tone and demeanor, and a failure to complain about a particular comment would suggest that the comment was probably innocuous.38 If appellate attorneys are allowed to litigate the propriety of anything a trial court says, regardless of the presence or absence of a trial objection, then appellate courts could well find themselves micromanaging the practices of trial courts, a task for which the appellate courts are ill-suited.

The potential for widespread micromanagement of trial courts by the appellate courts can be seen in what has happened even after our decision in *Unkart.* Despite the holding in *Unkart* that the *Blue* case had no precedential value,39 numerous appellate decisions have still considered whether judicial comments in a particular case required reversal in the absence of an objection. Although the number of opinions citing *Blue* has dropped since *Unkart* , looking only at cases since the beginning of 2015 as a representative snapshot, at least twenty-two cases have involved discussions of *Blue* that ultimately resulted in rejecting claims of improper judicial comments *813before a jury.40 In at least two other cases during that time, the court of appeals expressly *814declined to address the issue of preservation, despite the apparent absence of an objection, and ultimately rejected the claims on the merits.41 In the present case and at least one other during the time period, the court of appeals reversed the conviction on the basis of judicial comments or conduct even though no complaint was ever made at trial.42 If, instead of *Unkart* 's suggestion that, at most, only a tiny minority of complaints about judicial comments in front of the jury are immune from preservation requirements, we now hold that *all* complaints about judicial comments in front of the jury are immune from preservation requirements, I believe that appellate courts will be inundated with such claims.43*815Most trial judges are hard-working and well-meaning, and we should not assume that they will ignore a party's claim that a comment is impermissible, or worse, punish the attorney's client for bringing the potential impermissibility of a judge's comment to the judge's attention. Instead of encouraging parties to sandbag judges and nitpick a judge's comments at the appellate level, we should be encouraging parties to tell the trial judge if they think *816something he has said is improper.44

I respectfully dissent.

1

*See* Appendix.

2

State's Petition for Discretionary Review at 6.

3

Appellant's Brief at 27 (citing Tex. Code Crim. Proc. art. 38.05 ; *Blue v. State* , 41 S.W.3d 129, 134 (Tex. Crim. App. 2000) ).

4

*Proenza v. State* , 471 S.W.3d 35, 47-48 (Tex. App.-Corpus Christi 2015, pet. granted) ; *see also**Ford v. State* , 305 S.W.3d 530, 532-33 (Tex. Crim. App. 2009) ("Preservation of error is a systemic requirement on appeal.... Ordinarily, a court of appeals should review preservation of error on its own motion[.]") (citations omitted).

5

400 S.W.3d 94 (Tex. Crim. App. 2013).

6

*Proenza* , 471 S.W.3d at 51 (internal quotation marks and citations omitted).

7

*Id.* at 54.

8

*Id.* at 54-55 (citing Tex. R. App. P. 44.2(a) ).

9

State's Petition for Discretionary Review at 3.

10

Tex. Code Crim. Proc. art. 38.05.

11

*But see**Brown v. State* , 122 S.W.3d 794, 797 (Tex. Crim. App. 2003) (discussing Tex. Code Crim. Proc. art. 36.14, which similarly prohibits the trial judge from "expressing any opinion as to the weight of the evidence" in its jury charge).

12

*McClory v. State* , 510 S.W.2d 932, 934 (Tex. Crim. App. 1974) (citing *Howard v. State* , 420 S.W.2d 706 (Tex. Crim. App. 1967) ; *Collins v. State* , 376 S.W.2d 354 (Tex. Crim. App. 1964) ).

13

*See**Gray v. State* , 159 S.W.3d 95, 98 (Tex. Crim. App. 2005) ("In summary, when only a statutory violation is claimed, the error must be treated as non-constitutional for the purpose of conducting a harm analysis[.]").

14

*See, e.g.* , *Mendez v. State* , 138 S.W.3d 334, 339 (Tex. Crim. App. 2004) ("In the opinion below and in the *Williams* case that it cited, the courts of appeals have mixed the concept of 'systemic requirement,' which has to do with preservation of error, with the concept of 'structural error,' which has to do with harmfulness of error.") (citations omitted).

15

*See**Saldano v. State* , 70 S.W.3d 873, 888 (Tex. Crim. App. 2002).

16

851 S.W.2d 275 (1993).

17

*Id.* at 279.

18

*Id.*

19

*Id.* at 279-80.

20

*Id.* at 279.

21

*Id.*

22

41 S.W.3d 129, 130 (Tex. Crim. App. 2000) (plurality opinion).

23

*Id.* at 131.

24

*Id.* at 129-39.

25

*Id.* at 131 (citing Tex. R. Evid. 103(d) (West 1998)).

26

*Id.* at 132-33.

27

*Id.* at 135-36 (Keasler, J., concurring).

28

*Id.* at 138-39.

29

400 S.W.3d 94 (Tex. Crim. App. 2013).

30

*Id.* at 97-98.

31

*Id.*

32

*Id.* at 99.

33

*Id.* at 101.

34

*Id.*

35

*Id.*

36

*Proenza* , 471 S.W.3d at 51.

37

70 S.W.3d 873, 887 (Tex. Crim. App. 2002).

38

*Id.* (quoting 43 George E. Dix & Robert O. Dawson, *Texas Practice-Criminal Practice and Procedure* § 42.121 (2d ed. 1995) ).

39

*Id.*

40

*Id.* at 888.

41

*Mendez* , 138 S.W.3d at 341.

42

*Id.*

43

*See**Proenza* , 471 S.W.3d at 52 (citing *Jasper v. State* , 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) ) ("A trial court's comments do not constitute fundamental error unless they rise to 'such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury.' ").

44

Respondent's Brief on the Merits at 29-30.

45

61 S.W.3d 413 (Tex. Crim. App. 2001).

46

*Id.* at 420-21.

47

*Id.* (citing Tex. R. Evid. 103(d) (West 1998)).

48

Tex. R. Evid. 103(d) (West 1998).

49

Tex. R. Evid. 103(e).

50

*See* Respondent's Brief on the Merits at 30.

51

Tex. R. Evid. 103.

52

Tex. R. Evid. 103(a).

53

1 Steven Goode et al., *Texas Practice Series: Guide to the**Texas Rules of Evidence* § 103.7 (4th ed. 2016) (citing Tex. R. Crim. Evid. 103(d) cmt. (West 1986)); *Miller v. State* , 939 S.W.2d 681, 687-89 (Tex. App.-El Paso 1996, no pet.).

54

Tex. R. Crim. Evid. 103(d) cmt. ("Adoption of this rule is not meant to change the Texas harmless error doctrine. In subsection (d) the federal rule refers to plain error. This has been changed to fundamental error which conforms to Texas practice. The Committee intends no change through 103(d) in present Texas law.") (West 1986).

55

*Marin* , 851 S.W.2d at 278 (citing Tex. R. Crim. Evid. 103(d) ).

56

*Grado v. State* , 445 S.W.3d 736, 739 (Tex. Crim. App. 2014).

57

*Ex parte Heilman* , 456 S.W.3d 159, 165-66 (Tex. Crim. App. 2015).

58

*Ex parte Marascio* , 471 S.W.3d 832, 837 (Tex. Crim. App. 2015) (Keasler, J., concurring).

59

*See**Cockrell v. State* , 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (even "incurable erroneous jury argument[ ]" is error that is "forfeited by a failure to insist upon it").

60

*See**Heilman* , 456 S.W.3d at 166 ("It would be easy to misinterpret a statute-of-limitations defense as a uniquely fundamental right, given that when it is properly raised, it leads to only one result: dismissal. But its true nature-a mere legislative 'act of grace'-is modest, especially when compared to weightier, constitutionally based rights that we have nonetheless deemed forfeitable.").

61

Respondent's Brief on the Merits at 27.

62

*See, e.g.* , *Cockrell* , 933 S.W.2d at 89 (even "incurable erroneous jury arguments" is error that is "forfeited by a failure to insist upon it" at trial).

63

*See**Heilman* , 456 S.W.3d 159, 165-66 (Tex. Crim. App. 2015) ("When we analyze rights under our *Marin* framework, we focus on the nature of the right at issue-not the circumstances under which it was raised.").

64

State's Petition for Discretionary Review at 9 (citing *Easley v. State* , 424 S.W.3d 535, 538-39 (Tex. Crim. App. 2014) ).

65

*Marin* , 851 S.W.2d at 278-80.

66

*Id.* at 278.

67

*Id.*

68

*Id.*

69

*Id.* at 280.

70

138 S.W.3d 334, 342 (Tex. Crim. App. 2004).

71

*See also, e.g.* , *Grado* , 445 S.W.3d at 741 (Tex. Crim. App. 2014) ("In the absence of [an] effective waiver, a judge has an independent duty ... to identify the correct statute under which a defendant is to be sentenced[.]"); *Garcia v. State* , 149 S.W.3d 135, 144 (Tex. Crim. App. 2004) ("[I]f the judge is aware of the defendant's language barrier, the judge has an independent duty to ensure that the proceedings are interpreted for the defendant[.]"); *Blue* , 41 S.W.3d at 131 (plurality opinion) (quoting *Lagrone v. State* , 84 Tex.Crim. 609, 209 S.W. 411, 415 (1919) ) ("The law contemplates that the trial judge shall maintain an attitude of impartiality throughout the trial."). *Cf.**Sanchez v. State* , 120 S.W.3d 359, 364 (Tex. Crim. App. 2003) ("[T]he appellant had an affirmative duty to object to any defect in the indictment before trial, and a failure to do so would prevent him from raising a claim of a defect for the first time on appeal.").

72

Tex. Code Crim. Proc. art. 38.05.

73

*Trinidad v. State* , 312 S.W.3d 23, 29 (Tex. Crim. App. 2010).

74

*See**Boykin v. State* , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) ("[I]f the meaning of the statutory text ... should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning. Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.") (internal quotation marks and citations omitted).

75

*Cf., e.g.* , Tex. Code Crim. Proc. art. 39.14(b).

76

*Cf., e.g.* , Tex. Code Crim. Proc. art. 38.31(b).

77

*Mendez* , 138 S.W.3d at 342.

78

*Id.*

79

*Saldano* , 70 S.W.3d at 887.

80

*Marin* , 851 S.W.2d at 280.

81

*Id.*

82

*See, e.g.* , *Grado* , 445 S.W.3d at 741 ("The ... right to be sentenced by a ... judge who properly considers the entire range of punishment is ... necessary to effectuate the proper functioning of our criminal justice system.... [T]he right involved here speaks to a broader concern-the integrity of judicial sentencing proceedings."); *Ieppert v. State* , 908 S.W.2d 217, 220 (Tex. Crim. App. 1995) ("The constitutional prohibition against *ex post facto* legislation [a category-one *Marin* right] is not really an individual right at all. It is a categorical prohibition directed by the people to their government."). *Cf.**Proctor v. State* , 967 S.W.2d 840, 844 (Tex. Crim. App. 1998) (quoting *Marin* , 851 S.W.2d at 278 ) (statute-of-limitations claim deemed forfeitable because such a claim "can hardly be deemed 'fundamental to the proper functioning of our adjudicatory system' ").

83

*Marin* , 851 S.W.2d at 278.

84

*Id.* at 280.

85

Tex. Code Crim. Proc. art. 36.14 ("[T]he judge shall, before the argument begins, deliver to the jury ... a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.").

86

*Brown* , 122 S.W.3d at 797-98.

87

Tex. Code Crim. Proc. art. 38.05.

88

*Id.* (quoting *Lagrone v. State* , 84 Tex.Crim. 609, 209 S.W. 411, 415 (1919) ).

89

445 S.W.3d 736, 741 (Tex. Crim. App. 2014).

90

*See* Concurring Opinion at 806 ("[N]ot every trial judge's comment that runs afoul of Article 38.05 can be said to completely wreck the proper functioning of the adjudicatory system.").

91

Dissenting Opinion at 815-16.

92

*Id.* at 789.

93

*Id.* at 792.

94

*Id.* at 791.

95

*See* Tex. Code Crim. Proc. art. 38.05.

96

Dissenting Opinion at 809-10.

97

*Mendez* , 138 S.W.3d at 342.

98

*But see**Garza v. State* , 435 S.W.3d 258, 263 (Tex. Crim. App. 2014) ("[T]his case does not require that we further define where in *Marin* 's categorical structure [this] claim is properly placed. We reserve such a decision for a matter that properly presents the issue.").

99

*Gray* , 159 S.W.3d at 98.

100

Tex. R. App. P. 44.2(b).

101

Appellant's Brief at 33.

102

Tex. R. App. P. 44.2(a).

103

*Proenza* , 471 S.W.3d at 54-55 (citing Tex. R. App. P. 44.2(a) ).

104

*See, e.g.* , *Aguirre-Mata v. State* , 992 S.W.2d 495, 499 (Tex. Crim. App. 1999).

105

*Marin* , 851 S.W.2d at 278.

106

*Brown* , 122 S.W.3d at 797.

107

*Id.*

108

*Marin* , 851 S.W.2d at 280.

1

20th Century Fox (1982).

2

851 S.W.2d 275 (1993).

3

*Id.* at 278.

4

Indeed, for all the talk of *Marin* 's three categories, as a practical matter we aren't really concerned with putting rights into their respective categories. We are only concerned with one category: category three. As before *Marin* , we ask whether a defendant is required to preserve error in the trial court to raise a particular claim on direct appeal. Asking whether the right is a category-three *Marin* right instead of whether the right requires preservation doesn't change the ultimate inquiry. Once we determine that a right at issue is not a category-three right, we are less concerned with what category that right belongs in. *See, e.g.**Garza v. State* , 435 S.W.3d 258, 263 (Tex. Crim. App. 2014). Seems to me that this can lead to the same piecemeal developments that *Marin* was supposed to rescue us from. *Saldano v. State* , 70 S.W.3d 873, 887-88 (Tex. Crim. App. 2002) (citing George E. Dix & Robert O. Dawson, Texas Practice-criminal practice and procedure § 42.121 (1995) ).

1

*Sharpe v. State* , 648 S.W.2d 705, 706 (Tex. Crim. App. 1983).

2

*Blue v. State* , 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality op.).

3

*Id.* at 130-32 (recognizing general rule with respect to judicial comments but taking notice of fundamental error in the case before it).

4

*Unkart v. State* , 400 S.W.3d 94 (Tex. Crim. App. 2013).

5

*Id.* at 100.

6

I do not use the term "overrule" because a court can overrule a decision only if it is binding precedent and *Blue* is not binding precedent. But a disavowal would be as much a negation of the *Blue* decision as would occur if *Blue* had been binding precedent and were overruled.

7

The Court does not decide whether the right involved here is a category-one right under *Marin* or a category-two right. *See infra* at n.10 and accompanying text. If it is eventually held to be a category-one right, an improper-judicial-comment claim would then appear to eligible for consideration for the first time even on habeas review. *See**Smith v. State* , 463 S.W.3d 890, 896 (Tex. Crim. App. 2015). *See also**Ex parte Carter* , 521 S.W.3d 344, 348 (Tex. Crim. App. 2017) (plurality op.); *Ex parte Marascio* , 471 S.W.3d 832, 850 (Tex. Crim. App. 2015) (Yeary, J., concurring).

8

Tex. R. App. P. 33.1(a)(1)(A) ("As a prerequisite to presenting a complaint for appellate review, the record must show that ... the complaint was made to the trial court by a timely request, objection, or motion that ... stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.").

9

*Marin v. State* , 851 S.W.2d 275 (Tex. Crim. App. 1993). *See infra* at n.10 and accompanying text.

10

851 S.W.2d at 279.

11

*Mendez v. State* , 138 S.W.3d 334, 341 (Tex. Crim. App. 2004) ; *Sanchez v. State* , 120 S.W.3d 359, 365 (Tex. Crim. App. 2003) ; *Aldrich v. State* , 104 S.W.3d 890, 895 (Tex. Crim. App. 2003).

12

*Mendez* , 138 S.W.3d at 341 ; *Sanchez* , 120 S.W.3d at 366.

13

*Marin* , 851 S.W.2d at 278.

14

*Id.* at 279. *See also**Peyronel v. State* , 465 S.W.3d 650, 652 (Tex. Crim. App. 2015) (quoting *Marin* ).

15

*Fuller v. State* , 253 S.W.3d 220, 232 & n. 48 (Tex. Crim. App. 2008) (citing Rule 33.1 and *Aldrich* ).

16

*Grado v. State* , 445 S.W.3d 736, 739 (Tex. Crim. App. 2014) ("narrow exceptions"); *Garza v. State* , 435 S.W.3d 258, 260 (Tex. Crim. App. 2014) (same); *Henson v. State* , 407 S.W.3d 764, 767 (Tex. Crim. App. 2013) ("two relatively small categories of errors"); *Aldrich* , 104 S.W.3d at 895 (same); *Saldano v. State* , 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (same).

17

Tex. Code Crim. Proc. art. 38.05.

18

*See**Trinidad v. State* , 312 S.W.3d 23, 29 (Tex. Crim. App. 2010).

19

*Id.*

20

*Id.* (quoting Tex. Code Crim. Proc. art. 36.22 ).

21

Tex. Code Crim. Proc. art. 38.05.

22

Tex. Code Crim. Proc. art. 38.23.

23

*See**Buchanan v. State* , 207 S.W.3d 772, 774-76 (Tex. Crim. App. 2006) (defendant required to raise complaint about failure of arrest to comply with Chapter 14 of the Code of Criminal Procedure to raise complaint on appeal that evidence should have been excluded under Article 38.23 ).

24

*See* Tex. Code Crim. Proc. chapter 38, *passim. See e.g.* , *id.* arts. 38.071, 38.072, 38.22, 38.23, 38.37.

25

*Quercia v. United States* , 289 U.S. 466, 469-72, 53 S.Ct. 698, 77 L.Ed. 1321 (1933) ; *United States v. Jara-Favela* , 686 F.3d 289, 297 (5th Cir. 2012) ; *United States v. Frederick* , 406 F.3d 754, 762 (6th Cir. 2005) ; *United States v. Ryan-Webster* , 353 F.3d 353, 364 (4th Cir. 2003) ; *United States v. Jaynes* , 75 F.3d 1493, 1503 (10th Cir. 1996). *But see**United States v. Mundy* , 539 F.3d 154, 158-59 (2d Cir. 2008) ("For good reason, that practice has fallen into widespread disfavor, absent special circumstances.... Especially in a criminal trial, in which the defendant often declines to present evidence, the court's marshaling of the evidence often amounts substantially to a repetition of the prosecutor's summation. Today, marshaling of evidence is rarely practiced in federal court.").

26

Fed. R. Evid. 614(b) ; *United States v. Lanza-Vázquez* , 799 F.3d 134, 143 (1st Cir. 2015), *cert. denied* , --- U.S. ----, 136 S.Ct. 920, 193 L.Ed.2d 807 (2016) ("It is well-established that a judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. He or she thus has a perfect right-albeit a right that should be exercised with care-to participate actively in the trial proper.") (citing *Quercia* , citation and internal quotation marks omitted). *But see**United States v. Ottaviano* , 738 F.3d 586, 595 (3d Cir. 2013) ("Federal Rule of Evidence 614(b) allows judges to question witnesses and act as more than 'a mere moderator.' But a judge must not 'abandon his or her proper role and assume that of an advocate.' [I]solated questioning to clarify ambiguities is one thing, but a trial judge cannot take over the cross-examination for the government to merely emphasize the government's proof or question the credibility of the defendant and his witnesses. The judge's participation must never reach the point where it appears clear to the jury that the court believes the accused is guilty.") (citations, internal quotation marks, brackets, and ellipsis omitted). At some point, however, a trial judge's comments or questioning can violate a defendant's constitutional due-process rights. *See**Lanza-Vázquez* and *Ottaviano, supra.*

27

*Unkart* , 400 S.W.3d at 99.

28

*See**id.* at 99 n.15 (citing *Blue* , 41 S.W.3d at 131 (plurality op.) ("the general rule is that counsel must object to the trial judge's comments during trial in order to preserve error")); *Blue* , 41 S.W.3d at 133 (granting relief).

29

469 S.W.2d 579, 580 (Tex. Crim. App. 1971).

30

*Havard v. State* , 800 S.W.2d 195, 211 (Tex. Crim. App. 1989) ; *Sharp v. State* , 707 S.W.2d 611, 619 (Tex. Crim. App. 1986) ; *Sharpe* , 648 S.W.2d at 706 ; *White v. State* , 601 S.W.2d 364, 366 (Tex. Crim. App. 1980) ; *Woods v. State* , 569 S.W.2d 901, 904 (Tex. Crim. App. 1978).

31

*Minor* , 469 S.W.2d at 580. The Court says that it is up to the legislature to decide whether it disagrees with the new rule the Court articulates today, but the matter *has* been left to the legislature, and the rules of statutory construction support my position-not that of the Court. Texas has prohibited comments on the weight of the evidence almost since it achieved statehood. *See**Gibson v. Hill* , 21 Tex. 225, 228 (Tex. 1858) ("We have a statute which provides that 'the judge shall not in any case, civil or criminal, (charge or comment) on the weight of the evidence or testimony' "). Along with the statutory prohibition, we have a long history of requiring complaints about improper judicial comments to be brought to the trial court's attention before they could be raised on appeal. *See**Newton v. State* , 150 Tex. Crim. 500, 509, 202 S.W.2d 921 (Tex. Crim. App. 1947) ("We have examined the authorities relied upon by appellant and are in accord with their holding that a violation of this statute will ordinarily result in a reversal if the point is properly preserved by an exception to the court's remark."). Only a plurality in *Blue* indicated that a complaint about a judicial comment might ever be exempted from preservation requirements and only for an exceptional case. Because the legislature has recodified the prohibition against judicial comments several times, *see Gibson* , *Newton* , and *Minor* , *supra* , we should infer that it has approved of our construction of this right as one that is forfeitable. *See**State v. Medrano* , 67 S.W.3d 892, 902 (Tex. Crim. App. 2002) ("[W]hen a legislature reenacts a law using the same terms that have been judicially construed in a particular manner, one may reasonably infer that the legislature approved of the judicial interpretation."). As Judge Newell has pointed out in his concurring opinion, *Marin* is good at explaining how to treat violations of particular rights if we already know how those rights are to be categorized but is not as helpful with categorizing the rights in the first place. Instead of relying upon loose language in *Marin* to upend the parties' historical responsibility for enforcing Texas's comment-on-the-weight-of-the-evidence prohibition through trial objections, the Court should adhere to the historical practice (on which *Blue* was a slight aberration) and leave any change in that practice to the legislature if it ever desires to do so.

32

*Hollins v. State* , 805 S.W.2d 475, 476 (Tex. Crim. App. 1991).

33

*See**Nelson v. State* , 661 S.W.2d 122, 123-24 (Tex. Crim. App. 1983) ; *Jackson v. State* , 548 S.W.2d 685, 695 (Tex. Crim. App. 1977) ; *Hernandez v. State* , 530 S.W.2d 563, 565 (Tex. Crim. App. 1975) ; *Hernandez v. State* , 507 S.W.2d 209, 211-12 (Tex. Crim. App. 1974) ; *Lewis v. State* , 503 S.W.2d 806, 809 (Tex. Crim. App. 1974) ; *Lee v. State* , 454 S.W.2d 207, 208-09 (Tex. Crim. App. 1970) ; *Burge v. State* , 443 S.W.2d 720, 724 (Tex. Crim. App. 1969) ; *Crenshaw v. State* , No. 02-14-00192-CR, 2015 WL 1544129 *4, 2015 Tex. App. LEXIS 3298 *10-11 (Tex. App.-Fort Worth April 2, 2015, no pet.) (not designated for publication); *Green v. State* , No. 14-12-00601-CR, 2013 WL 6405472 *2-3, 2013 Tex. App. LEXIS 14770 *5-6 (Tex. App.-Houston [14th Dist.] December 5, 2013, pet. ref'd) (not designated for publication); *Wilson v. State* , No. 05-07-00903-CR, 2008 WL 2688546 *3-4, 2008 Tex. App. LEXIS 5143 *8-10 (Tex. App.-Dallas July 10, 2008, no pet.) (not designated for publication); *Salinas v. State* , No. 07-99-0513-CR, 2001 WL 649008 *5-6, 2001 Tex. App. LEXIS 3845 *13-16 (Tex. App.-Amarillo June 12, 2001, pet. ref'd) (not designated for publication); *Fletcher v. State* , 960 S.W.2d 694, 701 (Tex. App.-Tyler 1997, no pet.) ; *Parrish v. State* , No. 01-94-00194-CR, 1995 WL 412798 *7, 1995 Tex. App. LEXIS 1573 *18 (Tex. App.-Houston [1st Dist.] July 13, 1995, no pet.) (not designated for publication); *Hicks v. State* , 901 S.W.2d 614, 617 (Tex. App.-San Antonio 1995, pet. ref'd) ; *Silva v. State* , 831 S.W.2d 819, 823-824 (Tex. App.-Corpus Christi 1992, no pet.) ; *Tennison v. State* , 814 S.W.2d 484, 485-486 (Tex. App.-Waco 1991, no pet.) ; *Strong v. State* , 805 S.W.2d 478, 489-90 (Tex. App.-Tyler 1990, pet. ref'd).

34

*Marks v. State* , 617 S.W.2d 250, 252 (Tex. Crim. App. 1981). *See also**Green v. State* , 476 S.W.3d 440, 449 (Tex. Crim. App. 2015) (citing *Marks* for that proposition).

35

George Dix and John Schmolesky, 43A Texas Practice § 53:98 (p. 1087) & n.2 (2011) (citing cases).

36

*See**infra* nn.40-42.

37

*See**Smith v. State* , 297 S.W.3d 260, 271 (Tex. Crim. App. 2009).

38

If a defendant believes that the defense attorney should have objected to a particular judicial comment, then an ineffective assistance claim could be filed in motion-for-new-trial or habeas proceedings and testimony could be obtained from the prosecutor and defense counsel regarding the tenor of the trial judge's remarks.

39

*Unkart* , 400 S.W.3d at 101.

40

*See**Duke v. State* , No. 01-16-00245-CR, 2017 WL 3140126 *1, 2017 Tex. App. LEXIS 6870 *2-4 (Tex. App.-Houston [1st Dist.] July 25, 2017, pet. filed) (not designated for publication) (complaint that the trial court erred in "informing the venire that the jury has no right to nullify"); *Santschi v. State* , No. 14-15-00771-CR, 2017 WL 3090001 *4, 2017 Tex. App. LEXIS 6787 *11-13 (Tex. App.-Houston [14th Dist.] July 20, 2017, no pet.) (not designated for publication) (complaint that trial court commented on the weight of the evidence by admitting three different types of documents into evidence, alleging that this act tainted the presumption of innocence); *Carielo v. State* , No. 04-15-00741-CR, 2017 WL 2960409 *1, 2017 Tex. App. LEXIS 6383 *2-5 (Tex. App.-San Antonio July 12, 2017, no pet.) (not designated for publication) (complaint that trial court impermissibly commented on a witness's credibility when it swore in a witness as follows: "You understand what the truth means and everything else. Right? And you swear to tell the jury the truth. Right?"); *Orosco v. State* , No. 03-15-00383-CR, 2017 WL 2873352 *7-8, 2017 Tex. App. LEXIS 6111 *23-28 (Tex. App.-Austin June 29, 2017, pet. filed) (not designated for publication) (complaint about the fact that trial court expressed frustration with the defendant's repeated failures to answer the questions asked and to instead provide unrelated commentary, which the court described as a "diatribe" on two occasions, and the court repeatedly warned the defendant that additional failures to answer the questions asked or to behave in the manner required in judicial proceedings could result in the imposition of limitations on his ability to testify); *Fraser v. State* , 523 S.W.3d 320, 338-39 (Tex. App.-Amarillo June 9, 2017, appellant's pet. ref'd, State's pet. granted) (complaint about a number of instructions or comments to the jury, such as: "Ladies and gentlemen, there is going to be a whole series of witnesses to which this instruction is going to apply, and I will be reading that instruction to you for every one of them, so you can get used to it."); *Tucker v. State* , No. 05-16-00297-CR, 2017 WL 1282897 *3-4, 2017 Tex. App. LEXIS 3067 *7-9 (Tex. App.-Dallas April 6, 2017, no pet.) (not designated for publication) (complaint about trial judge's instruction to defendant to "remain quiet and act like you got some sense in this courtroom"); *Knott v. State* , 513 S.W.3d 779, 797-802 (Tex. App.-El Paso 2017, pet. ref'd) (complaint about trial court's explanations to venire about a defendant's right against self-incrimination, court of appeals held the case to be controlled by *Unkart* ); *McDaniel v. State* , No. 05-15-01086-CR, 2016 WL 7473902 *5-7, 2016 Tex. App. LEXIS 13841 *6-33 (Tex. App.-Dallas December 29, 2016, pet. ref'd) (not designated for publication) (complaint that various statements and actions of judge during trial showed judicial bias, including a statement about "beyond a reasonable doubt" during voir dire, a statement about the potential sequence of events during voir dire, a statement to the defendant about how the State would likely proceed in the judge's absence, shaking his head "no" after defense counsel told the defendant he would have a limited right to appeal issues raised pretrial if he pled guilty pursuant to a plea agreement, an admonishment of defense counsel during defense counsel's opening statement, and various rulings on defense counsel's objections); *Jimenez v. State* , No. 13-13-00066-CR, 2016 WL 6804454 *2, 2016 Tex. App. LEXIS 12295 *4-7 (Tex. App.-Corpus Christi-Edinburg November 17, 2016, pet. ref'd) (not designated for publication) (in overruling a defense objection to prosecutor's closing argument, trial judge stated, "I mean, it just tracks the evidence, overruled."); *Villarreal v. State* , 504 S.W.3d 494, 521-24 (Tex. App.-Corpus Christi-Edinburg 2016, pet. ref'd) (complaining about trial court's statement: "It's what the testimony is so far. I'll overrule the objection."); *Valtierra v. State* , No. 08-14-00261-CR, 2016 WL 5121993 *9, 2016 Tex. App. LEXIS 10330 *23-27 (Tex. App.-El Paso September 21, 2016, no pet.) (not designated for publication) (complaint about trial court comments providing anecdotal examples of what may happen to the criminal justice system if it could not find enough qualified jurors to impanel a jury, discussing the issue of pretrial publicity, discussing the value of the jury system, and reminding the jury that despite such publicity, there are always two sides to the story); *Dupree v. State* , No. 02-15-00332-CR, 2016 WL 4538598, 2016 Tex. App. LEXIS 9822 (Tex. App.-Fort Worth August 31, 2016, no pet.) (not designated for publication) (complaint about trial court instructing defendant not to testify while cross-examining a witness); *Gonzales v. State* , 499 S.W.3d 502, 504-07 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) (judge's questions and comments about pretrial interaction between defendant and some of the jurors); *Mendez v. State* , No. 04-15-00311-CR, 2016 WL 3030969 *8-10, 2016 Tex. App. LEXIS 5516 *24-29 (Tex. App.-San Antonio May 25, 2016, no pet.) (not designated for publication) (judge's statements to jury regarding when proceedings would likely be concluded) *Pitts v. State* , No. 05-14-01375-CR, 2016 WL 1270311 *5, 2016 Tex. App. LEXIS 3373 *16-23 (Tex. App.-Dallas March 31, 2016, no pet.) (not designated for publication) (trial court comment during voir dire: "The State's not required to prove guilt beyond all possible doubt. It's only required that the State prove to exclude all reasonable doubt concerning the Defendant's guilt"); *Denver v. State* , No. 05-14-00817-CR, 2016 WL 661034 *2-4, 2016 Tex. App. LEXIS 1723 *4-9 (Tex. App.-Dallas February 18, 2016, pet. ref'd) (not designated for publication) (comments during voir dire, including one in which the trial judge misspoke); *Perez v. State* , No. 05-14-01196-CR, 2016 WL 58810 *1-3, 2016 Tex. App. LEXIS 15 *1-7 (Tex. App.-Dallas January 5, 2016, no pet.) (not designated for publication) (judicial comment on reasonable doubt in voir dire); *Lyne v. State* , No. 13-13-00313-CR, 2015 WL 5672692 *3-5, 2015 Tex. App. LEXIS 9713 *10-13 (Tex. App.-Corpus Christi-Edinburg September 17, 2015, no pet.) (not designated for publication) (complaint about trial court's curative instructions); *Thomas v. State* , 470 S.W.3d 577, 592-94 (Tex. App.-Houston [1st Dist.] 2015), *aff'd* , 505 S.W.3d 916 (agreeing with statement of venireperson during voir dire); *Barfield v. State* , 464 S.W.3d 67, 78-80 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd), *cert. denied* , --- U.S. ----, 136 S.Ct. 2411, 195 L.Ed.2d 781 (2016) (display of MADD plaque in courtroom); *Moore v. State* , No. 03-12-00787-CR, 2015 WL 1317205 *6-7, 2015 Tex. App. LEXIS 2638 *19-22 (Tex. App.-Austin March 20, 2015, pet. ref'd) (not designated for publication) (trial judge's question to venire member: "Can you consider the entire range of punishment, which is going to be up to life in the penitentiary, no less than five years, a very small possibility that under all of the circumstances probation will be available to this defendant?"); *Sanchez-Tapia v. State* , No. 07-14-00203-CR, 2015 WL 1119762 *4-6, 2015 Tex. App. LEXIS 2273 *12-16 (Tex. App.-Amarillo Mar. 10, 2015, pet. ref'd) (not designated for publication) (explanation for relevance ruling excluding evidence).

41

*See**Mohammed v. State* , No. 02-15-00127-CR, 2016 WL 3659113 *11-13, 2016 Tex. App. LEXIS 7200 *** 34-39 (Tex. App.-Fort Worth July 7, 2016, no pet.) (not designated for publication) (assuming without deciding that the defendant "was not required to preserve error on this point by timely objection"); *Baukus v. State* , Nos. 09-13-00397-CR, 2016 WL 908281 *9-13, 2016 Tex. App. LEXIS 2463 *28-39 (Tex. App.-Beaumont March 9, 2016, pet. ref'd) (not designated for publication) (assuming without deciding that the issue was preserved regarding claim that judge was biased due to comments during voir dire, denial of motion for new trial, and response to defendant's testimony).

42

*See**Proenza* , 471 S.W.3d at 47-55 ; *Drake v. State* , 465 S.W.3d 759 (Tex. App.-Houston [14th Dist.] 2015, no pet.) (arresting a prospective juror and comments during voir dire).

43

Even when a judicial comment occurs while the parties are at the bench, an appellant may attempt to argue that it was in front of the jury. *See**Martinez v. State* , No. 10-13-00431-CR, 2015 WL 5092672 *15-17, 2015 Tex. App. LEXIS 9035 *47-49 (Tex. App.-Waco August 27, 2015, no pet.) (not designated for publication) (comment during bench conference that the appellant alleged was in front of the jury). Moreover, with its disposition today, the Court does not address the "biased judge" rationale that the court of appeals derived from one of the concurring opinions in *Blue.* From 2015 through 2017, at least eleven other cases in the courts of appeals have involved discussions of *Blue* with respect to comments or actions by the trial court in nonjury settings or outside the presence of the jury where the appellate court ultimately rejected a claim of fundamental error. *Mumphrey v. State* , 509 S.W.3d 565, 568-69 (Tex. App.-Texarkana 2016, pet. ref'd) (statement by trial judge prior to sentencing that the defendant was "lucky" jury was not assessing punishment because of prior intoxication manslaughter case); *Bledsoe v. State* , No. 10-16-00047-CR, 2016 WL 5944786 *1, 2016 Tex. App. LEXIS 11100 *1-5 (Tex. App.-Waco October 12, 2016, no pet.) (not designated for publication) (statement during pretrial hearing: "I don't blame you" for declining plea offers of 40, 20, and 10 years on three charges, held error was not preserved); *Mughni v. State* , No. 05-15-00560-CR, 2016 WL 4198856 *5-7, 2016 Tex. App. LEXIS 8492 *16-19 (Tex. App.-Dallas August 8, 2016, no pet.) (not designated for publication) (trial court had explained, outside the jury's presence, possible deficiency in the State's showing that evidence was relevant for admissible purposes); *Carder v. State* , No. 09-15-00417-CR, 2016 WL 3356570 *1-3, 2016 Tex. App. LEXIS 6309 *2-5 (Tex. App.-Beaumont June 15, 2016, no pet.) (not designated for publication) (outside the jury's presence, judge asked prosecutors if they wanted to make an objection); *Morales v. State* , No. 06-15-00125-CR, 2016 WL 350622, 2016 Tex. App. LEXIS 957 (Tex. App.-Texarkana January 26, 2016, no pet.) (not designated for publication) (comments in hearing outside jury's presence); *Silverio v. State* , No. 05-14-01412-CR, 2015 WL 6756685 *1-3, 2015 Tex. App. LEXIS 11426 *2-7 (Tex. App.-Dallas November 4, 2015, no pet.) (not designated for publication) (trial judge's questions of defendant during plea hearing); *Hatch v. State* , No. 05-13-01710-CR, 2015 WL 4723620 *7-8, 2015 Tex. App. LEXIS 8358 *20-23 (Tex. App.-Dallas Aug. 10, 2015, pet. ref'd) (not designated for publication) (claim that judge was biased during punishment hearing to the bench for improperly considering extrajudicial information, questioning a witness and the prosecutor, and preventing two State's witnesses from testifying); *Johnson v. State* , No. 05-14-00791-CR, 2015 WL 4600472 *1-2, 2015 Tex. App. LEXIS 8110 *1-4 (Tex. App.-Dallas July 31, 2015, pet. ref'd) (not designated for publication) (trial judge's questions and comments during punishment hearing to the bench); *Gaytan v. State* , No. 05-14-01315-CR, 2015 WL 4600794 *3-5, 2015 Tex. App. LEXIS 8098 *9-13 (Tex. App.-Dallas July 31, 2015, no pet.) (not designated for publication) (complaint about trial court's questions and comments before the plea and during and after defendant's testimony); *Lewis v. State* , No. 08-14-00210-CR, 2015 WL 3952871, 2015 Tex. App. LEXIS 6613 (Tex. App.-El Paso June 26, 2015, no pet.) (not designated for publication) (complaints of bias based on statements made in adjudication and punishment hearing, addressing and rejecting the merits of the complaint after concluding that "[w]hether an objection to alleged bias of a trial judge is required to raise the issue on appeal is an open question"); *Long v. State* , No. 13-13-00579-CR, 2015 WL 234021 *4-6, 2015 Tex. App. LEXIS 309 *10-16 (Tex. App.-Corpus Christi Jan. 15, 2015, pet. ref'd) (not designated for publication) (questioning defendant during punishment hearing to the bench). The proliferation of bench trial claims is another reason to disavow the *Blue* decision in its entirety.

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In his concurrence, Judge Newell contends that the nature of the right, not judicial efficiency, should determine whether a right is forfeitable. Although my dissent does address the fact that the Court's opinion will likely result in an avalanche of unmeritorious appellate claims, my main point is that the nature of the right prescribed by Article 38.05 argues in favor of it being forfeitable. This right, which is not constitutional and does not exist in the federal system, is a right to be free of commentary by the trial judge on the evidence in the case. If the defendant thinks the trial judge has strayed into the area of improper commentary under Texas law, he should point that out and seek a curative instruction. The concurrence worries about an "admittedly partial tribunal," but the right to an unbiased judge is not the same as the right to be free from judicial commentary. Even if Article 38.05 may in some way help safeguard the right to an impartial tribunal, we have recognized in other contexts that a statutory right designed to safeguard a constitutional right is not necessarily treated the same as the constitutional right itself. *See**Gray v. State* , 159 S.W.3d 95, 97 (Tex. Crim. App. 2005) (violation of statute designed to help protect constitutional right to a jury that is a fair cross section of the community is subject to non-constitutional harm analysis); *Ex parte Sadberry* , 864 S.W.2d 541, 543 (Tex. Crim. App. 1993) (claim based on statute designed to safeguard right to jury trial not cognizable on habeas corpus).