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NO.PD-1085-15

IN THE COURT OF CRIMINAL APPEALS OF

THE STATE OF TEXAS

ORIGINAL

N0.05-14-00791-CR RBGBVED IN

mmQ? CR!?^NAl APPEALS

NO.05-14-00792-CR

NO.05-14-O0793-CR OCT 29 2015

IN THE COURT OF APPEALS FOR THE

FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS . ?fc$. -^f/CStH, G"3?k

DALLAS,TEXAS

TADARRIAN ANTWDINE JOHNSON,Appellant

v.

THE STATE OF TEXAS,Appellee

APPELLANT'S PETITION FOR DISCRETIONARY

REVIEW

FILED IN

Cuum Oh CRIMINAL APPEALS

OCT 29 2::5

Abel Acosta, Clerk

MR-TADARRIAN A.JOHNSON

COFFIELD UNIT/TDCJ-CID

2661 FM 2054

Tennessee Colony,Texas 75884
STATEMENT REGARDING ORAL ARGUMENT

Appellant hereby waives oral argument,unless the State requests oral argu

ment.Tex.R.App.Pro.Rule 68.4(c).

11.
TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT > ii

TABLE OF CONTENTS iii

LIST OF AOTHORTTIES iV

STATEMENT OF THE CASE .1

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE 1

GROUNDS FOR REVIEW 2

GROUND FOR REVIEW NUMBER ONE

THE COURT OF APPEALS ERRED IN

FINDING THAT THE RECORD"DOES*NOT

DEMONSTRATE THAT THE TRIAL JUDGES ACTIVE

PARTICIPATION IN THE APPELLANT'S PUNISH

MENT HEARING WAS A VIOLATION OF HIS SUBSTANTIAL

RIGHTS,WHEREBY NO OBJECTION IS REQUIRED,TO

WARRANT APPELLATE REVERSAL, i;. 2-10

GROUND FOR REVIEW NUMBER TWO

THE COURT OF APPEALS ERRED IN

FINDING THAT THE TRIAL COURT'S FAILURE TO

REMAIN NEUTRAL AS AN ARBITER,DID NOT DEPRIVE

THE APPELLANT OF HIS RIGHT TO DUE PROCESS 10-11

PRAYER 11

CERTIFICATE OF SERVICE 12

CRTIFICATE OF COMPLIANCE

ill).
LIST OF AUTHORITIES

Cases

U.S. V.ANDERSON,

993 F.2d 1435(9th Cir.1993) 10

BRUMIT v.STABB,

206 S.W.3d 639,645(Tex.Crim.App.2006) 9

Gagnon v.Scarpell,

411 U.S.778,786( 1973) 9

In re Murchison,

349 U.S.133,136(1955)'. 10

U -S.v .ffiodriguez,

197 F.3d at 158-159 9

O.S.v.Vonn,

122 S.Ct. 1043(2002) 10

IV.
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

TADARRIAN ANTWDINE JOHNSON,Appellant below submits this Petition for Discr

etionary Review pursuant to Rule 68.1,Texas Rules of Appellate Procedure,and

requests that the Fifth Court of Appeals in this cause,and reverse the same

and order that the Appellant be granted a new trial and/or plea proceeding.

STATEMENT OF THE CASE

Appellant was indicted for the felony for burglary of a building,aggravated

assault of a public servant,and evading arrest.(CRlc6;CR2:6;CR3:6).The indi

ctments in the burglary of a building and aggravated assault cases alleged

two prior felonyeeonvictions as enhancement paragraphs.(CRl:6;CR2:6).However,

the State moved to strike both enhancement paragraphs,from these two indic

tments,and the trial court granted the motion.(CRl:5,28;CR2:5;35;R.R.2:5-6;

R.R.3:5).The indictment in the evading arrest case alleged a prior conviction

for misdemeanor evading arrest.(CR3:6).

Appellant pleaded guilty and judicially confessed to the charges.(CRl:24-27,

29;CR2:31-34,36-37;CR3:16-19,21;R.R.2:8;State's Exhibit 1).The trial court

found Appellant guilty of all three charges.(R.R.3:58).The trial court asses

sed punishment at 10 months imprisonment in the state jail in the burglary of

a building and evading arrest cases.(CR2:5,R.R.3:58).The trial court ese^SBigd

pvefrul-edtby operation of law. (CRl :43^4;CR2:53-54,CR3: 34-35) :TEX.R .APP.P.21.8

STATEMENT OF THE PROCEDURAL HISTORY

OF THE CASE

On July 31,2015,in an unpublished opinion,the Fifth Court of Appeals rendered

its Judgment and Opinion affirming Appellant's conviction.No motion for rehea

ring was filed.
GROUNDS FOR REVIEW

GROUND FOR REVIEW NUMBER ONE

THE COURT OF APPEALS ERRED IN FINDING THAT THE RECORD DOES NOT DEMONSTRATE

THAT THE TRIAL JUDGES ACTIVE PARTICIPATION IN THE APPELLANT'S PUNISHMENT HEAR

ING WAS A VIOLATION OF HIS SUBSTANTIAL RIGHTS,HHEREBY NO OBJECTION IS REQUIRED

TO WARRANT APPELLATE REVERSAL .(See R.R.3:56-58).The proceedings concluded.(R.R-

.3:58.).

ARGUMENT

The Court of Appeals has decided an important question of state and federal

law in a way that conflicts with the applicable decisions of the United States

Supreme Court and the Court of Criminal Appeals.

When the judge engaged in extensive cross-examination of Appellant,whereby

conducting her own investigation,and also the judges verbal commentary throughhout Appellant's testimony clearly demonstrates the trial court's failure to

remain impartial during the proceeding.In the following,the record is clear

that the trial court took a biased position against Appellant,throughout the

entire proceeding,and specifically,the judge made these following comments in

response to Appellant's testimony during the State's cross-examination:

."Okay.I know how it's gonna be.You go ahead and answer however you want to."

#R.R.3:21).

."That doesn't make-sir,why don't you want to answer?You might as well just

shut it down.Just shut it down.Because either you are having a real hard

--• fcime understanding the questions,or you just don't want to say because yo

u're trying to protect your buddy."(R.R.3:22).

."See-see how he has more loyalty to seme thug,some theif ,than he does to his

own family?Go ahead sir;you keep playing this game."(R.R.3:23).

."I want to hear the conversations that were going on in that car,what y'all

wewere doing all day.Obviously,you weren't out looking for a job,right?"(R.R.3

."ncLWj weren't working.You weren't doing anything-were you high?You were

hri.dj'Agh.Did y'all go to a crack house?Were y'all talking about robbing people?

Tell us the story.That's what he wants to know."(R.R.3:24).

."You think we're fools,don't you?"(R.R.3:24).

."Why don't you just be honest and say,I was robbing,we needed to rob,we neededed money ,we needed drugs so we were thinking of ways to make money illegalally.ls that what happened?"(R.R.3:24-25).

Further,during the State's cross-examination,when the Appellant explained various details of his charge for aggravated on a public servant case,at R.R.3

2.
25-26,the Appellant stated that he was sitting in the car and the police offie

cer jumped in the window,but without saying a word to the Appellant as.the Ap

pellant was pulling out of the driveway..(R.R.3:26).The judge interrupted and

erroneously said,"It sounds like you need atrial.Maybe if they bring the wit

ness that saw you....Maybe it will refresh your recollection,you using a crow-.

bar.Yoan don't remeber that?"(R.R.3:27).The Appellant explained that he did

not remember a crowbar.Then when the prosecutor asked how the Appellant ran

into a tree during the incident,and when the Appellant stated,"There was no

tree out there,sir."(R.R.3:27).The prosecutor requested that the court with

draw Appellant's plea.(R.R.3:27).Appellant's attorney requested permission

to"go back on redirect,"which the court allowed,(R.R.3:28),and again the Ap

pellant was questioned by his counsel about the details that were included in

the police report,and though the Appellant disagreed with some of the details

from the police report,he did in fact,admit to committing the offense.However,

the judge,during the redirect,violated the Appellant's due process,by her fa-.

ilure to remain impartial during the proceeding,and the trial court's biased

position against the Appellant,when on redirect,asked additional questions of

the Appellant,about the details of his burglary case,that included how the

Appellant knew his codefendant and how they decided to commit the offenseetogether.(R.R.3:28-29,31).

Furthermore,when the prosecutor conducted additional cross-examination of A

Appellant responding to his testimony by interjecting:(R.R.3:32-42),

."How far did you drive with the guy hanging out of your car?How far?(R.R.3

:32).

."You've said that about ten times...already,but you don't get to just standndhthere and say what you want.You really have to answer questions;other

wise,we're done."(R.R.3:32-33).

."Wow.So we have innocent civillians,trying to risk their life to get aho

ld of you.All righty."(R.R.3:33).

."Really?Huh-uh.No.You think you're the first drug addict we've met? Th

en don't put it on drug addicts.You think drug addicts drive around with

ammunition in the trunk of their car and drag police officers until they

crash out in a-on a tree?Really,you think that's what drug-all drug addicts

do?—No.You think all drug addicts assault police officers,burglarize

people's homes?No.Most drug addicts don't violate the law,other than bei

ng a drug addict.But you want me to believe it's ail-once you go to rehab

everything's going to get better.Is that what yoyuwant me to think?"(R.R.

3:42).

."No,you're not[trying to change].I don't see it."(R.R.3:42).

3.
Even after the Appellant rested his case,both the defense and the State gave

closing arguments,and the Appellant requested that the court address the App

ellant's long-time drug problem,which had never been addressed,by sending him

to an (inpatient drug treatment program,such as Substance Abuse. Felony Punis

hment FacilityC'SAFPF").The State asserted that,although drug use was a part

of the problem,Appellant deserved a prison sentence.(R,R.3:44-46).

Also,the record,again demonstrated the trial court's active participation in

the Appellant's punishment hearing,violating the Applicant's substantial rig

hts,whereby ho objection was required,to warrant the Appellant reversal and

even the prosecutor knew and made it a part of the record,when he told the

judge that he felt that and requested that the court should withdraw the Ap

pellant's plea.R.R.3:27).A reversal of the Appellant's conviction does not re

quire an objection,because of the record plain error and the fundamental un

fairness of the proceeding that violated the Appellant's substantial rights

as follows: (Note.-After,both the State and Appellant made their closing argu

ments,the judge stated,"Mr.Ashford,this lady keeps raising her hand,wanting

to say something.Do you want to call her as a witness or not?"(R.R.3:46).The

record reflects"No audible response"from defense counsel.(R.R.3:46).The witn

ess stated, "Yes,can I eDmel:up?" (R.R.3:46) .The judge responded, "Come on up,

ma'am.Raise your right hand."(R.R.3:46).This witness was sworn .(R.R.3:46).The

judge told the witness to"Vfg]o ahead."(R.R.3:46) .Although the record does not

identify who this witness was by name,the record reflects that the witness is

the Appellant's sister.(R.R.3:46) .This witness testified that the Appellant

ls"a"crack-head"and has"a real crack problem."(R.R.3:46).Appellant's sister ex

explained that although she too had a criminal bacground,she had reformed her

ways.(R.R.3:46-47).The judge questioned Appellant's sister about how she had

changed but the Appellant had not.(R.R.3:46-47)).The court then proceeded to

engage the witness in the following exchange:

THE CCURT:What do you think about the-the families of the police officers

that risk their life every time they have to arrrest your brother?

UNIDENTIFIED PERSON:I understand.

THE COURT:How do you think it feels being a-see,you don't even want to 1

listen to me,do you?

UNIDENTIFIED PERSON:Yes,ma'am,I will.

THE COURT:I want you to put your place-put yourself in the place

of a police officer,doesn't know whether he's gonna live or die

because he sees your brother putting that car into drive and takes offUNIDENTIFIED PERSON:And ITHE COURT:-and wondering if he's even going to survive this arrest.

UNIDENTIFIED PERSON:And ITHE COURT:You do understand that?

4.
UNIDENTIFIED PERSON:Yes.I just-I'm telling you because I'm from like,the

streets and stuff like that.And I know coke-crack cocaine,that's a hard

drug.People will do anything to get drugs.Like I realphycsee these people

every day literally.

THE COURT:Ma'am,I'm sorry,but I have to disagree with your brother's att

orney.I've been to lots of classes for drug abusers,and most drug abusers do

not commit crimes like that.Most drug users are not criminals.They're not.

Why don't you try to explain to me,then why-rif he's found God,why he's ru

bbing on himself in front of the jailers or why he's got a razor in the

la jail,why he's misbehaving in the jail?

UNIDENTIFIED PERSON:I wouldn't under—wouldn't understand it,because when

I was incarcerated,I stayed away from people.I don'tTHE COURT:It's not about you,ma'am.I'm asking you to explain to me why-if

ycuyour brother reallv is chanainq,whv would he behave like that in fail?

UNIDENTIFIED PERSON:I"

THE COURT:You can't blame that on him beinq a crack addict.

UNIDENTIFIED PERSON:No,ma'am .I feel like because he probably had to-because

he's in an aqaravated tank,he didn't-he's orobablv scared of people in the

ere that done murdered oeople.And I would be scared ofTHE COURT:He's scared of Deoole?

UNIDENTIFIED PERRON:Yes,he probablv would be scared of other mens that have

done orobablv killed peoDle like-because I orav for mv brother everv dav be

becaus3 of the kind of tank he in/because he's in an aggravated tank.

THE COURT:Have y'all-what have y'all done wMMeSie was free to sit him down

and get him to-one second.Let me finish before you start talking.

UNIDENTIFIED PERSON:Yes,ma'am..

THE COTJ*T:What have you and your family done while he has been a free to

try and get him to change his life?

UNIDENTIFIED PERSON:When my brother was on crack and my cousin passed away,

I went looking for my brother myself .When I went to go look for him.I found

him in a dope^fiend house with nothing but crack heads out there smokingTHE COURT:So what did you do?I want to know what you did-what you and your

family did.Did you try to send him to rehab?Did you even have a conversatiecn with him about it?

UNIDENTIFIED PERSON:I had a coversation with him.

THE COURT:You did?

UNIDENTIFIED PERSON:Yes,ma'am.

'j' 5-
THE COURT .-What about his mother and his grandmother?

UNIDENTIFIED PERSON:My mamma done had conversations with him plenty of time

es,but my brother always run off.He-he'll be at the house for a minute;next

thing you know he'll be running off because of the area we stay in.

THE COURT"Okay.So y'all have known he's had a problem since hejs been to co

college,and now you're here trying to tell me what to do?

E UNIDENTIFIED PERSON:No,ma'am.I wasTHE COURT.-Since y'all haven't been able to convince him on your own for

years and years and years,stop hurting family,stop hurting yourself,stop

risking your life and other people's lives- he hasn't listened to you.Whatever you and your family havedtried to do,he hasn't listened.lt hasn't wor

ked.And now you're trying to tell me to what?

UNIDENTIFIED PERSON:No,I'm just saying I wasn't ever really trying to reailly help him.Like,by him being incarcerated,nobody took the time-I understastand that he done done wrong,but it's no-it's no-like,he can't-and he pro

bably be so nervous because I'm looking at him and I know him because I was

raised uptwitenrnhim.

THE COURT:He's nervous?He drags a cop and he's nervous here in front of me?

UNIDENTIFIED PERSON:Yes.

THE COURT:I never understood that.

UNIDENTIFIED PERSON:When he was-during-at the timeTHE COURT:He wasn't scared out in the streets.

UNIDENTIFIED PERSON:He was under the influence.He was on drugs.

THE COURT:That'sUNIDENTIFIED PERSON:They sajd they found it in him when he went to the ho

spital.He wasn't even in his right state of mind.LikeTHE CCURT:He's not afraid of hanging out in crack houses,hanging out with

people he doesn't know,getting high with people he doesn't know,driving are

ound with a trunk full of weapons,but he's scared today?

UNIDENTIFIED PERSON:I-I would be,and I done changed,so-I understand we're n

not talking about me,but I understandTHE COURT:Oh,I know lots of people that have changed,ma'am.

UNIDENTIFIED PERSON:Yes.And I was raised up-and he did go to college.He

never did get in trouble.I was always the one getting in trouble.

THE COURT:Well,and that's where he's different from most people.Most of

the folks that come through here don't even have a high school diploma.And

he's smart.

UNIDENTIFIED PERSON:And heTHE COURT:He knows better.

UNIDENTIFIED PERSON:And he didn't really-and he-first,he started snorting

cocaine6.
THE COURT:We can stop.I know he's a drug addict,ma'am,but you don't.With

drug addicts that don't place people in harms"svaway,I can work with th

em.I can work with them a lot if all they're doing is shoplifting or-but .

when you have something that's willing to risk other people's lives and his

own life-you know yx>ur bother's lucky to be alive? right?

UNIDENTIFIED PERSON:Yes,ma 'am.

THE COURT:You watch the news right?

UNIDENTIFIED PERSON:Yes,ma'am.

I HE COURT:M@0-Raw toate he$s totkyn fcnel©dpb€A<3nsfe pti3& aun;unreiadcppfe?a hoe in his head,right?*

UNIDENTIFIED PERSON: ps,ma'am.

THE COURT:How many guys have gotten hilled because they run from cops?

UNIDENTIFIED PERSON:Numerous of them-people.

THE COURT:Yeah-yeah,so you just need to be thankful that he's alive and sarfe in the jail.Because if it would have been any other cop,he'd be dead.

UNIDENTIFIED PERSON :Can I tell you something?

THE COURT:Go ahead.

UNIDENTIFIED PERSON:When I was incarcerated,I was super excited becausewhen I was away from my daughter-I mean I felt like nobody wasn't-wasn't

helping me,just threw me in jail because nobody would help me.I'm not ask

ing for sympathy because I prayTHE COURT:So how did you get straight?

UNIDENTIFIED PERSON:I prayed.I stayed in the single cell because I hurt my

leg by jumping becayse I went to Hope Literacy.I was inTHE CCUST:What made you decide to leave the life of crime?What made you?

UNIDENTIFIED PERSON:Because the-leave the life ofEHE COURT:Of crime,yeah.

UNIDENTIFIED PERSON:-crime?Because of my child.

THE COURT:Okay.

UNIDENTIFIED PERSON:It was for her.

THE COURT:Well,what's the differente ifrbmeen you and your brother?How come

you can do it and he can't;?

UNIDENTIFIED PERSON:Because I wasn't on drugs.I wasn't onTHE COURT:Oh,okay.

UNIDENTIFIED PERSON:And I feel like if he go back to the same neighbor

hood,it's goingrit's probably gonna happen again.All I'm just asking-even

if you §you send him to-whereever you decide to do,just,please,can you get

7.
him some help.That's all I pray for in asking you to do,just help him be

cause ain't nobody ever really tried to help him.

THE COURT:I don't think that's true.I think two courts have placed him on

probation already and tried to help him and heUNIDENTIFIED PERSON:They never srnt him to a rehab,like-I don't efrenkbelieve he went to Wilmer.I don't believe he ever went to no rehab to try and

get him some help.He-I don't know why he won't tell the truth.He's a real

crack head.He walks the street at night.When my cousin passed away,it was

the most horrible thing because he got killed by a police officer;he didn't

even come to the funeral,so he was in the streets .We couldn't even get hiraTHE COURT:What's yourrcousinss name that got killed by the police?

UNIDENTIFIED PERSON:Jaques Howard.The police shot him.He wasn't nothing but

20 years old.I found him.I would go look for him because he was nowhere ar

ound.He was in a crack-a crack house with nothing but crack heads.I said,

Tadarrian-I cried to him,can you please come to the house and go to the fu

neral with me.He said,Erica(phonetic),I'11 be there in the morning.He never

showed upobecause he's so much on crack.T see crack heads every day.

THE COURT:So do I,ma'am.All righty.Anything else you want to say?

UNIDENTIFIED PERSON:No,ma'am,just thank you for letting me talk.

THE COURT:All righty.Thank you.

(R.R.3:47-56).Without asking either defense counsel or the State whether they

had any questions for this witness,the court immediately proceeded to engage

Appellant as follows:

[THE COURT:]...Why would you do that to your sister?Why?Why do you put your

through all of that and her little baby girl and your grandmother and your

mother?Why?

THE DEFENDANT:I don't intentionally try toTSEE COURT:Tes,you do.Oh you think life just happens to you?

THE DEFENDANT:No,ma'am.

THE COURT:You think somebody gaBt<?sticks! a ccackrp&pe in your face and fo

rces you to do it?

THE DEFENDANT:No,ma'am.

THE COURT:IHd even then somebody forces you to run from cops all the time?

It seems to me like you have a death wish,you just want somebody to put a

bullet in your head.Is that what's going on?

THE DEFENDANT:No,ma'am.Your Honor,I'm not a violent person.

8.
THE COURT:Oh,really?Tell that to the cops that tried to arrest you over and

over again.You want m# to ignore your conviction for assault on a peace

officer?

THE DEFENDANT:No,no:,m

THE COURT:You want me to ignore your coviction for resisting arrest?

THE DEFENDANT: No, ma .'am.

THE COURT:Is that what you want me to do?

THE DEFENDANT:No,ma'am.

THE CCURT:Okay.Wellr;'then,you know,nothing that you're sayong,one can be

belived because you lied so much alreadt.Your own sister says you're not

telling the truth.Your sister calls you a crack head that's roaming the

streets;is that true?

THE DEFENDANT:No,ma'am.I don't roam the streets.

THE COURT:All righty.I'm finding you guilty in each case,setting your

punishment at ten years'confinement in prison.

(RR3:56-58).The proceedings concluded,(RR3:58).

In the case at bar,this court should grant review and reverse the decision

of the Court of Appeals,because the Appellant's substantial right to a fair

trial,in a fair tribunal,was disregarded,in that the aforementioned record

doesscontradict the correctness of the Court of Appeals'affirmance because

the record does,in fact demonstrate that the Appellant's snbstantial rights

were violated during his plea-proceedings,his right to confront those in

accordance with the Confrontation Clause and also the Appellant's right to

cross-examine the UNIDENTIFIED PERSON:/compounded with the record fact that

his judge failed to act impartially,whereas,the record shows a clear and

plain error by the court's use of the words"we"and "us",when the judge is sp

eaking in the plea-proceeding against the Appellant and as an advocate for

the state,therefore disregarding the Appellant's substantial right,during His

plea-proceeding,to have his plea-proceedings held before a neutral and detach

ed judge with no actual bias against him,and in accordance wifch Gagnon v.Scarpell,411 U.S.778,786(1973);Brumit v.State,206 S.W.3d 639 ,645(Tex.Grim.App.200

6).Further,in U.S.V.Rodriguez,197 F.3d at 158-159,it was clearly stated that:

"Although a district court may reject a plea-agreement and expeess its reasons

for doing so,Rule 11(e)(1),is clear in its prohobition againsf'all forms of

judicial participation in or interference with the plea negotiationsprocess."

The reasons for this bright line rule have been expressed in a number of cases

decided by this court."First,it diminishes the possibility of judicial coirfiiwinof a guilty plea,regardless whether the coercion would actually result in

9.
an involuntary guilty plea.Second,the judge^s involvement in the negotiations

is apt to diminish the judge's impartiality.By encoraging a particular agree

ment,the judge may feel personally involved,and thus resent the defendant's

rejection of his advice.Third,the judge's participation creates a misleading

impression of his role in the proceedings.The judge's role seems more like an

advocate for the agreement than a neutral arbiter if he joins the negotiati

ons . "Also ,see U.S.v.Anderson,993 F.2d 1435(9th Cir.1993).

Moreover,in the instant case,the record most certainly demonstrates that the

judge's active participation in the Appellant's punishment did violate his su

bstantial right and the appellate court erred in determining that the Appella

nt's substantial rights in the context of the Confrontation Clause,right to

cross-examine,and the right to have his judge remain as a neutral arbiter,all

contradicts the Court of Appeals'Opinion,that the recorded facts described,did

not affect his rights,whereby,these clear and plain errors,shown in the reco

rd,should not require an objection despite these plain errors because the erre

ors did affect Appellant's substantial rights to a fundamentally fair trial in

a fair tribunal.In re.Murchison,349 U.S.133,136(1955);U.S.Constitutional amen£

dment XIV,and Texas Constitution article I & 19(providing for due course of la

law). (Also,see U.S.v.Vonn,122 S.Ct.1043(2002),in relevant part to no objection

is required from the Appellant("Petitioner")because the record shows plain

error and the fact that his substantial rights were affected).

GROUND -FOF FL"V:'EW

GROUND FOR REVIEW NUMBER TWO

THE COURT OF APPEALS ERRED IN FINDING THAT THE TRIAL COURT'S FAILURE TO RE

MAIN NEUTRAL AS AN ARBITER,DID NOT DEPRIVE THE APPELLANT OF HIS RIGHT TO DUE

PROCESS.

ARGUMENT

The Court of. Appeals has decided an important question of state and federal

law in a way that conflicts with the applicable decisions of the United States

Supreme Court and the Court of Criminal Appeals.

In the instant case,the Court of Appeals erroneously entered into the record

that the Appellant's due process was not deprived when the record clearly sh

ows that the judge failed to remain impartial.which was the Appellant's abso

lute right and the judge's record partiality cannot be forfeited during the

Appelant's plea proceeding .Appellant's due process was clearly violated by the

judqe's erroneous conduct,when she questioned farts from and about the Appell

ant's case,rather than just the law.In U.S.v.Anderson,993 F.2d 1435(9th Cir.19

93),it was held that;"Regardless of whether defendant BMP shown actual prejud10.
a-P4fcr

ice,defendant who has pleaded guilty Mitaev judge has participated in plea discussions is entitled to be HpiMSLSee Federal Rules of Criminal Procedure

Rule 11(e)(1),18 U.S.C.A.Further,Constitutional Law states:Due process demands

an impartial adjudicator to make a ruling based in admissible evidence in a

forum with the oppurtunity to cross-examine and present evidence as allowed.Th

Therefore,in the instant case,when the trial court actively participated and

became an advocate in the Petitioner's(^Appellant")adversarial process and lo

st her neutral role and detached role that is required of a judge,when the

Appellant's judge questioned both the Appellant and his sister about his applcation for community supervision SAFP,clearly is plain error because almost a.l

all of the judge's questions went beyond judicial conduct and what was necess

ary for a determination of the Petitioner's application for SAFP.

This court should grant review and reverse the decision of the Court of App

eals.

PRAYER FOR RELIEF

Appellant prays that this Court grant review and upon final hearing,that judggment and sentence be set aside and the cause remanded below.

11.

Respectfully c submitted, submit

MK.TAUAKULM A.JOHNSON

#1936248

Coffield Unit?TDCJ-CID

2661 FM 2054

Tennessee Colony, Texas

75884
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this foregoing document was

sent to the State Prosecuting Attorney,at P.O.Box 12405 Capitol Station,Aust

in,Texas,78711,on this 15th day of October,2015,and also on this same date,the

main or original above said document was sent to the clerk of the Court of Crifcminal Appeals,by prepaid U.S.mail,at P.O.Box 12308 Capitol Station,Austin,Te

xas 78711.

TADARRIAN A.JOHNSON

12.
AFFIRM; and Opinion Filed July 31, 2015.

In The

(Emtrt of Appeals

Mttl} Utatrfct of utexaa at Dallas

No. 05-14-00791-CR

No. 05-14-00792-CR

No. 05-14-00793-CR

TADARRIAN ANTWOINE JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District Court

Dallas County, Texas

Trial Court Cause Nos. F13-59105-Q, F13-59106-Q, and F13-59536-Q

MEMORANDUM OPINION

Before Justices Bridges, Fillmore, and Brown

Opinion by Justice Brown

AfterTadarrian Antwoine Johnson pleaded guilty to the offenses of aggravated assault of

a public servant, burglary of a building, and evading arrest without the benefit of plea

agreements, the trial court assessed punishment at ten years' confinement in the aggravated

assault case and ten months' confinement in each of the remaining cases. In two issues,

appellant contends we must reverse and remand these cases for a new punishment hearing

because the trial court's failure to remain a neutral and detached arbiter violated his due process

rights under the United States and the Texas Constitutions. After reviewing the record, we

conclude appellant did not preserve error regarding these complaints because he failed to object

to the trial court's conduct. Thus, we overrule appellant's issues and affirm the trial court's

judgments.
In two issues, appellant contends the trial judge actively participated in appellant's

punishment hearing to the degree that (1) she abandoned her role as a neutral and detached

arbiter, (2) her extensive cross-examination of appellant and numerous comments reflected a

clear bias against appellant, and (3) her decision to "call her own witness to the stand" reflects

the trial court's "clear intent to actively engage in the advocacy process" against appellant.

According to appellant, this abandonment of the court'simpartial role violated his constitutional

rights to due process and due course of law under both the United States and Texas

Constitutions. Inmaking this argument, appellant acknowledges he failed to object but contends

the pervasive and harmful nature of the questions and comments in this case constitute

fundamental error and, therefore, an objection was not required to preserve error. After

reviewing the record and the law, we cannot agree.

Most appellate complaints must be preserved by a timely request for relief at the trial

level. See Tex. R. App. P. 33.1, Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013),

Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993). Even claims involving

constitutional error, including claims that due process rights have been violated are waived by

failing to object. Hull v. State, 67 S.W.3d 215, 218 (Tex. Crim. App. 2002); Briggs v. State, 789

S.W.2d 918, 924 (Tex. Crim. App. 1990). More particularly, this general rule applies to

complaints regarding improper judicial comments, except when the judicial comments rise to the

level of fundamental error. See Unkart, 400 S.W.3d at 99.

In Marin, the court of criminal appeals identified and defined three categories of rights

belonging to litigants. Marin, 851 S.W.2d at 279. Appellant maintains the unique facts and

circumstances in this case fall within the first of the three categories of rights defined in Marin.

That category concerns "absolute requirements and prohibitions" or "systemic" rights "which are

essentially independent ofthe litigant's wishes." Sanchez v. State, 120 S.W.3d 359, 366 (Tex.
Crim. App. 2003); Marin, 851 S.W.2d at 278. These absolute or fundamental rights are not

subject to the preservation requirements of rule 33.1 See Sanchez, 120 S.W.2d at 366. The

clearestcases of such rights are laws affectingthe jurisdiction of the courts. Id.

In Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality op.), the court of

criminal appeals granted relief on an improper-judicial-comment complaint that was not

preserved at trial. See id. at 133, 135. However, the court did not agree on a rationale for

granting relief and, consequently, Blue is a plurality decision with no precedential value. Unkart,

400 S.W.3d at 100-101. Thus, the separate opinions in Blue may only be considered for any

persuasive value they might have. Id. at 101. Because Blue concerned comments ofthe trial

judge which tainted appellant's presumption ofinnocence in front ofthe venire, we conclude itis

not persuasive in this case involving comments made atthe punishment hearing before the trial

courtafter appellant pleaded guilty to the offenses charged.

Here, appellant did not object to any of the numerous complained-of comments by the

trial court or her conduct in calling a witness to the stand. When the trial court asked whether

there was "any reason at law" why the sentences should not be formally imposed, appellant said,

"No." Finally, although appellant filed motions for new trial in these cases, he did not contend

his due process rights had been violated by the trial court's conduct and appellant did not file

motions to recuse or in any way request a new punishment hearing.

Although we do not condone the level ofthe trial court's participation nor her demeanor

during this punishment hearing, we disagree with appellant that the record demonstrates such

unique circumstances that no objection was required. Because appellant failed to object at any

time to the trial court's conduct in these cases, we conclude appellant hasfailed to preserve error

for our review. We overrule appellant's issues.

-3-
Accordingly, we affirm the trial court's judgments in this case.

Do Not Publish

Tex. R. App. P. 47

140791F.U05

/Ada Brown/

ADA BROWN

JUSTICE

-A-
Court of Appeals

ifltftfj Btatrict of Qtexas at Dallas

JUDGMENT

TADARRIAN ANTWOINE JOHNSON,

Appellant

No. 05-14-00791-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District

Court, Dallas County, Texas

Trial Court Cause No. F-1359105-Q.

Opinion delivered by Justice Brown. Justices

Bridges and Fillmore participating.

Based on the Court's opinion ofthis date, the judgment of the trial court is AFFIRMED.

Judgment entered this 31st day ofJuly, 2015.

-5-
Court of Appeals

Jfftftu. district of (feas at Ballas

JUDGMENT

TADARRIAN ANTWOINE JOHNSON,

Appellant

No. 05-14-00792-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District

Court, Dallas County, Texas

Trial Court Cause No. F-1359106-Q.

Opinion delivered by Justice Brown. Justices

Bridges and Fillmore participating.

Based on the Court's opinion of this date, the judgment ofthe trial court is AFFIRMED.

Judgment entered this 31st day ofJuly, 2015.

-6-
Court of Appeals

iflfftfi Bxstrirt of QJexas at Ballas

JUDGMENT

TADARRIAN ANTWOINE JOHNSON,

Appellant

No. 05-14-00793-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District

Court, Dallas County, Texas

Trial Court Cause No. F-1359536-Q.

Opinion delivered by Justice Brown. Justices

Bridges and Fillmore participating.

Based on the Court's opinionof this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 31st day of July, 2015.

-7-