Reversed and Remanded and Opinion Filed December 30, 2014 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-13-01369-CR No. 05-13-01370-CR JEREMY DEANDRE TA YLOR, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Crimin al District Court No. 4 Dallas County, Texas Trial Court Cause Nos. F-0760081-K, F-07-60083-K 

### OPINION Before Justices FitzGerald, Lang, and Brown Opinion by Justice FitzGerald Appellant pled guilty pursuant to plea agr eements to the offenses of possession with intent to deliver methylenedioxy methampheta mine and possession with intent to deliver cocaine. The court placed appe llant on deferred adjudication community supervision for six years in accordance with the plea agreements. The State subsequently filed motions to revoke probation and proceed with the adjudication of gu ilt in both cases. Appellant entered a plea of true and confessed to certain violations of the conditions of his probation. The court adjudicated guilt and sentenced appellant to tw enty-five years’ imprisonment in each case, with the sentences to run concurrently, and a $3,000 fine. In three issu es, appellant argues the trial judge failed to act impartially in determining punishment and viol ated his right to conf ront a witness against him. Appellant further asserts that the judgments should be modified to reflect the probation–2– conditions appellant was found to ha ve violated. Because we conclude the trial judge failed to act impartially, we reverse the trial court’s judgmen ts and remand the cases for a new sentencing hearing. BACKGROUND On March 23, 2011, pursuant to plea agreements, appellant pled guilty to the charged offenses of possession with intent to deliver methylenedioxy methamphetamine and possession with intent to deliver cocaine. The court placed appellant on deferred adjudication community supervision for a period of six years in accordance with the plea agreements. In May 2011, the State filed motions to revoke probation and proceed with an adjudication of guilt in both cases, alleging a viol ation of conditions of probation. Appellant pled true to the violations at a hear ing conducted on June 3, 2011, includ ing that he faile d a urinalysis by testing positive for cocaine and marijuana. The court found that appellant violated his conditions of probation, but cont inued appellant on probation and ordered treatment. On August 2, 2012, the State again filed motio ns to revoke probati on and proceed with adjudications of guilt in both cases. Amended moti ons to revoke probation were filed on June 11, 2013, alleging violation of conditions (b), (b), (b), (c), (d), (h), (j), (k), (m), (n), (q), and (aa). Appellant resolved the monetary violations when he paid all the fines, fees, and restitution, and the State abandoned those allegatio ns. Appellant entered a plea of true and judicially confessed to violation of conditions (b), (b), (b), (c), (d), (m), and (aa). These conditions included: failure to report to the supervision officer as directed, using a controlled substance or narcotic and failing urinalysis, and failure to obtain or complete treatment. The c ourt adjudicated guilt and sentenced appellant to twenty-five years’ imprisonmen t in each case, with the sentences to run concurrently. The court also assessed a fine of $3,000 in cause number F07-60083-K.–3– ANALYSIS In his first issue, appellant asserts the tr ial judge accused appellant of lying because the judge called someone from the bench to verify appellant’s employment. Therefore, appellant contends the trial judge failed to act as an impartial tribunal in determining his punishment. The State responds that appellant consented to th e telephone call because the letter verifying his employment contained a statement inviting the recipient to contact the employer if further assistance was required. During the hearing, appellant’s wife, Kathryn Dees testified that appellant had been working every day at La Bodega as a forklift dr iver under the name Jeremy Dees. Appellant used his wife’s last name to gain employment because of his criminal background. Appellant also testified that he was working as a forklift driver and said that he had been so employed for over a year. Appellant stated that his hours varied. Appellant presented the court with a letter from the Personnel Coordinator at La Bodega Meat & Produce dated June 3, 2013. The letter was admitted into evidence. The letter st ated that Jeremy Dees, as of the date of the letter, had been employed at the company since October 29, 2012 and the company did not anticipate any substantial reduction in work force. The letter also stated: “ Our phone number is located at the top right hand corner of this letter. Please feel free to contact us if you need further assistance.” Appellant also testified that he did not curre ntly have a drug problem. The judge called for a brief recess to have appellant “take a UA.” The court heard the argu ments of counsel after the recess, and then another recess was take n. Then, the following exchange occurred: THE COURT : All right. Put Mr. Taylor in custody. THE DEFENDANT : That scared me. THE COURT : I don't want you to tell me any things that you don’t need to.–4– DEFENSE COUNSEL : Stop. The Judge said I will subpoena down here who we need to subpoena trying to straighten this out. THE COURT : I spoke to the lawyer and I spok e to the personnel and she told me why you were fired and the problems that they have there, and they want their ID card back. THE COURT : Is there any reason why your client should not be sentenced at this point? DEFENSE COUNSEL : Well, Your Honor, based on this new information with the Court after having made this phone ca ll to the employer over there, that there is a lot of illegals over there and we think the attorney and ille gals got frightened when he was terminated, which he is of -- THE COURT : He got fired in July. DEFENSE COUNSEL : Well, that’s what they sai d. I don't know if that’s true. I don't have any of those witnesses. THE COURT : He is not illegal. Why lie on him? THE DEFENDANT : Are they paying cash? They paid me in cash. THE COURT : Well, let’s finish it. He can do a Motion for New Trial if he needs to. DEFENSE COUNSEL : Could I just have a week to subpoena him? THE COURT : It didn’t take him a week to bring me this lie, so let’s just finish it. We have been here long enough, all of act ual -- Is there any reason, in law, why your client should not be sentenced at this time? The State maintains that by presenting the lett er verifying his employ ment to the court, appellant consented to have the judge contact the employer listed in the letter. According to the State, because “appellant knowingl y lied to the court” and “perpe trat[ed] a fraud upon the court, the trial court’s actions were not improper.” We disagree. The record is clear that appellant pled tr ue to multiple allegations and judicially confessed; and that proof of one violation is sufficient to s upport a revocation. The issue, however, focuses on the fairness of the procedure adopted by the trial court in determining the sentences, not whether the sentences were excessive. Did the trial court fail to act as an impartial tribunal in determining the sentences?–5– The record shows that appellant and his wife testified that for the previous year he had been gainfully employed, become responsible, and basically had changed his life by assuming responsibility for his family. The employment lett er supported this claim and was pivotal to his plea for mercy. The letter blew up in his face wh en the trial judge made personal inquiries to determine the truth of appellant’s employment status. And this case developed serious constitutional consequences when the trial cour t put aside its judicial function and assumed the role of an investigator and ultimately a w itness by personally investigating appellant’s employment situation. The Due Process Clause of the Fourteen th Amendment provides that no State may “deprive any person of li fe, liberty, or property, w ithout due process of law.” 1 “The touchstone of due process is fundamental fairness.” 2 Due process requires that a neutral and detached judge preside over probation-revocation proceedings. 3 The judge should always act as a neutral arbiter between the advocates; she is not the prosecutor or involved in the fray. 4 In the absence of a clear showing to the contrary, we presume that a j udge acted as a neutral and detached hearing officer. 5 Here, the presumption does not apply because the record demonstrates that the trial judge went beyond the role of a neutral hearin g officer by conducting the investigation of the evidence. After contacting appellant’s alleged em ployer, the trial court made clear that it had formed the belief that appellant had been untruth ful, and this belief was formed based on the

1 U.S. C ONST . amend. XIV. 2 Euler v. State , 218 S.W.3d 88, 91 (Tex. Crim. App. 2007); see also Arizona v. Fulminante , 499 U.S. 279 (1991). 3 Gagnon v. Scarpelli , 411 U.S. 778, 786 (1973); Brumit v. State , 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Wright v. State , 640 S.W.2d 265, 269 (Tex. Crim. App. 1982). 4 Brown v. State , 122 S.W.3d 794, 797 (Tex. Crim. App. 2003); see also Dockstader v. State , 233 S.W.3d 98, 108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (stating judge should not act as advocate for any party). 5 Jaenicke v. State, 109 S.W.3d 793, 796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).–6– investigation of the evidence. But a trial cour t’s opinions or judgment s based on the pending case violate a defendant’s constitutional rights when th e trial court injects itse lf into the role of prosecutor as well as eventual witness. 6 As a general rule, a trial court’s critical or disapproving remarks to a party will not ordinarily support a bias or pa rtiality challenge, unless they reveal an opinion based on extrajudicial information. 7 The trial court’s conduct, however, goes beyond critical remarks. Here, the trial court’s telephone conversation w ith the alleged employer was an extrajudicial matter that influenced the court’ s sentencing decision, which decision as to the fair punishments to impose was at the heart of these cases. Wh en the hearing resumed following the recess (when the court apparently made the te lephone call), the trial court appe ared to be angry and expressed an unwillingness to continue the proceeding to allow defense counsel to subpoena the witness with whom the trial court had spoken. These are not the actions of an unbiased judicial officer. Therefore, under these circumstan ces, we conclude that appella nt was deprived of his due process right to a fundamentally fair sentencing procee ding. Appellant’s firs t issue is sustained. 8 We reverse the trial court’s judgments and remand the cases for new sentencing hearings.

Do Not Publish T EX
. R. A PP
. P. 47 131369F.U05

6 See Blue v. State , 41 S.W.3d 129, 132–33 (Tex. Crim. App. 2000). 7 Youkers v. State , 400 S.W.3d 200, 208 (Tex. App.—Dallas 2013, pet. ref’d). 8 Our resolution of this issue obviates the need to consider appellant’s remaining issues. See T EX

. R. A PP

. P. 47.1. /Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE–7– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JEREMY DEANDRE TAYLOR, Appellant
No. 05-13-01369-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 4, Dallas County, Texas Trial Court Cause No. F-0760081-K. Opinion delivered by Justice FitzGerald. Justices Lang and Brown participating. Based on the Court’s opinion of this da te, the judgment of the trial court is REVERSED and the cause REMANDED for a new sentencing hearing.
Judgment entered December 30, 2014.–8– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JEREMY DEANDRE TAYLOR, Appellant No. 05-13-01370-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 4, Dallas County, Texas Trial Court Cause No. F-0760082-K. Opinion delivered by Justice FitzGerald. Justices Lang and Brown participating. Based on the Court’s opinion of this da te, the judgment of the trial court is REVERSED and the cause REMANDED for a new sentencing hearing.
Judgment entered December 30, 2014.