ACCEPTED
05-14-01315-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
1/21/2015 3:58:48 PM
LISA MATZ
CLERK
5th Court of Appeals
FILED: 1/22/2015
Lisa Matz, Clerk
No. 05-14-01315-CR
No. 05-14-01316-CR
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
AT DALLAS, TEXAS
DANIEL GAYTAN,
Appellant
vs.
THE STATE OF TEXAS,
Appellee
On appeal from the 204th Judicial District Court
of Dallas County, Texas
In Cause Nos. F14-56218-Q and F13-56007-Q
APPELLANT’S BRIEF
Counsel of Record:
Lynn Richardson Julie Woods
Chief Public Defender Assistant Public Defender
Dallas County, Texas State Bar No. 24046173
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Katherine A. Drew Dallas, Texas 75207-4399
Chief, Appellate Division (214) 653-3550 (phone)
Dallas County Public Defender’s Office (214) 875-2363 (fax)
Julie.Woods@dallascounty.org
Attorneys for Appellant
LIST OF PARTIES
APPELLANT
Daniel Gaytan
APPELLEE
The State of Texas
DEFENSE COUNSEL AT TRIAL
At the original plea hearing in 05-14-01316-CR: Thomas Andrew Gatlin
8344 East R.L. Thornton Freeway, Suite 404
Dallas, Texas 75228
At the revocation hearing in 05-14-01316-CR and the plea hearing in 05-14-
01315-CR: Demarcus Ward
2201 Main Street, Suite 1006
Dallas, Texas 75201
STATE’S ATTORNEY AT TRIAL
At the original plea hearing in Cause No. 05-14-01316-CR: Gaelle Lauriston
At the revocation hearing in Cause No. 05-14-01316-CR and the plea hearing
in Cause No. 05-14-01315-CR: Andrew Anagnostis
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
APPELLANT’S ATTORNEY ON APPEAL
Julie Woods
Dallas County Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399
STATE’S ATTORNEY ON APPEAL
Susan Hawk (or her designated representative)
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
ii
TABLE OF CONTENTS
LIST OF PARTIES ................................................................................................... ii
INDEX OF AUTHORITIES......................................................................................v
STATEMENT OF THE CASE ..................................................................................1
ISSUES PRESENTED...............................................................................................2
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF ARGUMENT .................................................................................5
ARGUMENT .............................................................................................................7
POINT OF ERROR 1, RESTATED ..........................................................................7
The presiding judge violated Rule 605 of the Texas Rules
of Evidence by testifying as a witness in Appellant’s
cases.
POINT OF ERROR 2, RESTATED ..........................................................................7
The trial court abused its discretion by considering
evidence outside the record in deciding Appellant’s
sentences in these causes.
POINT OF ERROR 3, RESTATED ........................................................................18
The trial court’s abandonment of its role as a neutral
arbiter deprived Appellant of his right to due process
under the Fourteenth Amendment of the United States
Constitution.
POINT OF ERROR 4, RESTATED ........................................................................18
The trial court’s abandonment of its role as a neutral
arbiter deprived Appellant of his right to due course of
law under Article I, § 19 of the Texas Constitution.
POINT OF ERROR 5, RESTATED ........................................................................34
The trial court arbitrarily refused to consider the full
range of punishment in these causes in violation of
Appellant’s right to due process.
iii
POINT OF ERROR 6, RESTATED ........................................................................34
The trial court arbitrarily refused to consider the full
range of punishment in these causes in violation of
Appellant’s right to due course of law.
POINT OF ERROR 7, RESTATED ........................................................................37
The Court should reform the judgment in Appellate
Cause No. 05-14-01316-CR.
PRAYER ..................................................................................................................39
CERTIFICATE OF SERVICE ................................................................................39
CERTIFICATE OF COMPLIANCE .......................................................................40
iv
INDEX OF AUTHORITIES
Cases
Allen v. State,
No. 05-12-00672-CR, 2013 Tex. App. LEXIS 4701 (Tex. App.—Dallas Apr. 11,
2013, no pet.) (mem. op., not designated for publication) ...................................19
Asberry v. State,
813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d) ........................................37
Avilez v. State,
333 S.W.3d 661 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) ...................25
Beasley v. State,
902 S.W.2d 452 (Tex. Crim. App. 1995) .............................................................16
Bethany v. State,
814 S.W.2d 455 (Tex. App.—Houston [14th Dist.] 1991, no pet.) .....................19
Bigley v. State,
865 S.W.2d 26 (Tex. Crim. App. 1993) ...............................................................37
Brewer v. State,
572 S.W.2d 719 (Tex. Crim. App. [Panel Op.] 1978) .........................................20
Brown v. State,
122 S.W.3d 794 (Tex. Crim. App. 2003) ...................................................... 20, 24
Brumit v. State,
206 S.W.3d 639 (Tex. Crim. App. 2006) ...................................................... 18, 36
Charboneau v. State,
No. 05-13-00340-CR, 2014 Tex. App. LEXIS 13923 (Tex. App.—Dallas Dec.
30, 2014, no pet. h.) (mem. op., not designated for publication) .........................24
Dockstader v. State,
233 S.W.3d 98 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) ............ 20, 24
Earley v. State,
855 S.W.2d 260 (Tex. App.—Corpus Christi 1993, pet. dism’d as improvidently
granted) .................................................................................................................36
v
Ex parte Brown,
158 S.W.3d 449 (Tex. Crim. App. 2005) .............................................................37
Gagnon v. Scarpelli,
411 U.S. 778 (1973) ...................................................................................... 18, 36
Gonzales v. State,
No. 05-02-00478-CR, 2003 Tex. App. LEXIS 6740 (Tex. App.—Dallas Aug. 6,
2003, pet. ref’d) (not designated for publication) ................................................17
Grado v. State,
445 S.W.3d 736 (Tex. Crim. App. 2014) ...................................................... 18, 36
Guerrero v. State,
143 S.W.3d 283 (Tex. App.—Waco 2004, no pet.).............................................19
Guin v. State,
209 S.W.3d 682 (Tex. App.—Texarkana 2006, no pet.) .............................. 19, 24
Hammond v. State,
799 S.W.2d 741 (Tex. Crim. App. 1990) .............................................................13
Harris v. State,
No. AP-76,810, 2014 Tex. Crim. App. Unpub. LEXIS 517 (Tex. Crim. App.
2014) (not designated for publication) .................................................................17
Hayden v. State,
296 S.W.3d 549 (Tex. Crim. App. 2009) .............................................................15
Hensarling v. State,
829 S.W.2d 168 (Tex. Crim. App. 1992) .............................................................13
Hickman v. State,
Nos. 05-10-01250-CR and 05-10-01251-CR, 2013 Tex. App. LEXIS 9323
(Tex. App.—Dallas July 29, 2013, no pet.) (mem. op., not designated for
publication)...........................................................................................................16
In re Murchison,
349 U.S. 133 (1955) .............................................................................................18
In re Salgado,
53 S.W.3d 752 (Tex. App.—El Paso 2001, orig. proceeding) ............................15
vi
Jackson v. State,
314 S.W.3d 118 (Tex. App.—Houston [1st Dist.] 2010, no pet.) .......................17
Jackson v. State,
Nos. 05-13-00579-CR and 05-13-00580-CR, 2014 Tex. App. LEXIS 9059
(Tex. App.—Dallas Aug. 14, 2014, no pet.) (mem. op., not designated for
publication).................................................................................................... 16, 17
Jasper v. State,
61 S.W.3d 413 (Tex. Crim. App. 2001) ...............................................................20
Jefferson v. State,
803 S.W.2d 470 (Tex. App.—Dallas 1991, no pet.) ............................................36
Lawrence v. State,
No. 05-10-00083-CR, 2011 Tex. App. LEXIS 2971 (Tex. App.—Dallas Apr. 20,
2011, pet. ref’d) (mem. op., not designated for publication) ........................ 13, 14
Martinez v. State,
327 S.W.3d 727 (Tex. Crim. App. 2010) .............................................................17
Moreno v. State,
900 S.W.2d 357 (Tex. App.—Texarkana 1995, no pet.) .............................. 21, 24
O’Quinn v. Hall,
77 S.W.3d 438 (Tex. App.—Corpus Christi 2002, no pet.) ................... 13, 14, 15
Peterson v. State,
No. 05-12-01417-CR, 2013 Tex. App. LEXIS 13282 (Tex. App.—Dallas Oct.
24, 2013, no pet.) (mem. op., not designated for publication) ...................... 18, 20
State ex rel. Rosenthal v. Poe,
98 S.W.3d 194 (Tex. Crim. App. 2003) ...............................................................19
Taylor v. State,
Nos. 05-13-01369-CR and 05-13-01370-CR, 2014 Tex. App. LEXIS 13918
(Tex. App.—Dallas Dec. 30, 2014, no pet. h.) (mem. op., not designated for
publication).................................................................................................... 20, 26
Urbano v. State,
837 S.W.2d 114 (Tex. Crim. App. 1992) .............................................................17
vii
Wilson v. State,
Nos. 05-10-01362-CR, 05-10-01363-CR, and 05-10-01364-CR, 2011 Tex. App.
LEXIS 9702 (Tex. App.—Dallas Dec. 12, 2011) (mem. op., not designated for
publication).............................................................................................. 19, 20, 24
Statutes
TEX. CODE CRIM. PROC. art. 37.07, § 3(a) ...............................................................15
TEX. PENAL CODE § 12.33 ........................................................................................36
TEX. PENAL CODE § 30.02(c)(2) ..............................................................................36
Constitutional Provisions
TEX. CONST. art. I, § 19 ..................................................................................... 18, 36
U.S. CONST. amend. XIV .................................................................................. 18, 36
Rules
TEX. R. APP. P. 43.2(b) .............................................................................................37
TEX. R. EVID. 605 .....................................................................................................12
Miscellaneous
http://www.dallascounty.org/department/csc/cats.php (last visited January 13,
2015) .......................................................................................................................5
http://www.prisonoffenders.com/texas_syndicate.html (last visited January 21,
2015) .....................................................................................................................17
viii
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Appellant, Daniel Gaytan, and submits this brief on appeal
from two convictions for burglary of a habitation in the 204th Judicial District
Court of Dallas County, Texas, the Honorable Lena Levario, judge presiding.
STATEMENT OF THE CASE
In 2013 a grand jury indicted Appellant for burglary of a habitation. (CR2:
9).1 Appellant pleaded guilty to the charge. (CR2: 26-29). Pursuant to a plea
bargain agreement, the court placed Appellant on deferred adjudication probation
for a period of five years. (CR2: 20-25).
In 2014 a grand jury indicted Appellant for another burglary of a habitation
offense. (CR1: 7). The State subsequently filed a motion to adjudicate in the 2013
burglary of a habitation case. (CR2: 49-50). Appellant pleaded true to the motion
to adjudicate. (CR2: 58-59). Appellant also pleaded guilty and judicially confessed
to the 2014 burglary charge without the benefit of a plea bargain agreement. (CR1:
21-25).
The judge adjudicated Appellant guilty in the 2013 burglary case and
sentenced him to 15 years’ imprisonment in both cases. (CR1: 27-29; CR2: 61-63;
RR4: 55-57). Appellant timely filed his notice of appeal in each case. (CR1: 36;
1
“CR1” refers to the clerk’s record filed in Appellate Cause No. 05-14-01315-CR. “CR2” refers
to the clerk’s record filed in Appellate Cause No. 05-14-01316-CR.
1
CR2: 67).
ISSUES PRESENTED
POINT OF ERROR 1
The presiding judge violated Rule 605 of the Texas Rules of Evidence by testifying
as a witness in Appellant’s cases.
POINT OF ERROR 2
The trial court abused its discretion by considering evidence outside the record in
deciding Appellant’s sentences in these causes.
POINT OF ERROR 3
The trial court’s abandonment of its role as a neutral arbiter deprived Appellant of
his right to due process under the Fourteenth Amendment of the United States
Constitution.
POINT OF ERROR 4
The trial court’s abandonment of its role as a neutral arbiter deprived Appellant of
his right to due course of law under Article I, § 19 of the Texas Constitution.
POINT OF ERROR 5
The trial court arbitrarily refused to consider the full range of punishment in these
causes in violation of Appellant’s right to due process under the Fourteenth
Amendment of the United States Constitution.
POINT OF ERROR 6
The trial court arbitrarily refused to consider the full range of punishment in these
causes in violation of Appellant’s right to due course of law under Article I, § 19 of
the Texas Constitution.
POINT OF ERROR 7
The Court should reform the judgment in Appellate Cause No. 05-14-01316-CR.
2
STATEMENT OF FACTS
Appellant pleaded guilty to his 2013 burglary of a habitation case. (RR2: 7).
The State offered, and the court admitted, Appellant’s signed, written, voluntary
judicial confession and stipulation of evidence. (CR2: 31; RR2: 7; State’s Exhibit
1). The court accepted Appellant’s plea, found the evidence sufficient to
substantiate his guilt, deferred further adjudication, and placed him on community
supervision for a period of five years. (CR2: 20-25, 26-29; RR2: 8).
On July 21, 2014, the State filed a motion to adjudicate in Appellant’s 2013
burglary case alleging, among other violations, that Appellant committed a new
burglary of a habitation offense on June 25, 2014. (CR2: 49-50). A month later, on
July 24, 2014, a grand jury returned a true bill indictment for this new burglary
offense. (CR1: 7).
On September 15, 2014, the trial court called both burglary cases. (RR3: 4).
After the trial court accused Appellant of being a member of Texas Syndicate and
expressed her displeasure with Appellant,2 the judge told Appellant that he should
reconsider taking the State’s offer of ten years. (RR3: 6). The judge further
explained to Appellant that she “might give him more than ten.” (RR2: 9).
Appellant’s attorney requested time to confer with his client about how to proceed
2
POINTS OF ERROR 1 AND 2, RESTATED, infra, contain further details regarding the trial court’s
specific comments.
3
in these cases. (RR3: 9). The hearing concluded at this point. (RR3: 9).
Four days later, on September 19, 2014, Appellant’s hearing continued.
(RR4: 5). The judge asked Appellant, “And you still want to go open to the Court;
is that correct?” (RR4: 5). Appellant answered in the affirmative. (RR4: 6).
Appellant entered a plea of guilty to the new case and a plea of true to the
allegations in the motion to adjudicate in the 2013 burglary case. (CR1: 21-24;
CR2: 58-59; RR4: 7).
The State offered, and the court admitted, Appellant’s signed, written,
voluntary judicial confession of stipulation of evidence in the new 2014 burglary
case. (CR1: 25; RR4: 7-8; State’s Ex. 1). The State offered, and the court admitted,
Appellant’s signed, written, voluntary plea of true in his probation case. (CR2: 59;
RR4: 8). The State requested that the court “take judicial notice of the entire
contents of the Court’s file.” (RR4: 8). The State rested without presenting any
other testimony or evidence. (RR4: 8).
Appellant testified on his own behalf. (RR4: 8-30). He acknowledged that he
“picked up” the new burglary case while he was on probation for burglary. (RR4:
8). He explained that he had a substance abuse problem and was under the
influence of drugs and alcohol while committing the new burglary. (RR4: 9). He
consumed five Xanax pills, smoked some marijuana, and imbibed alcohol the day
of the offense. (RR4: 9, 13-18).
4
Appellant’s CATS3 evaluation reflected that he needed treatment for his
substance abuse problem. (RR4: 9-10). The CATS evaluation recommended
outpatient treatment, but Appellant testified that he would complete any type of
treatment the court ordered. (RR4: 9-10). He explained that his substance abuse
problem arose because he was depressed over his mother’s cancer diagnosis. (RR4:
11, 16, 23-25, 29). Appellant pleaded with the court to help him with his drug and
alcohol addiction. (RR4: 30, 52-54).
Ultimately, the court rejected Appellant’s request for treatment and
probation. The court sentenced Appellant to 15 years’ imprisonment in each case.
(CR1: 27-29; CR2: 61-63; RR4: 55-57).
SUMMARY OF ARGUMENT
Issue 1: The trial judge’s numerous statements and comments about
Appellant’s chest tattoo and gang affiliation throughout the hearing were the
functional equivalent of witness testimony. Neither the State nor the defense
presented any evidence of Appellant’s gang membership or affiliation. The trial
court violated the unambiguous terms of Rule 605 of the Texas Rules of Evidence
by testifying as a witness in Appellant’s cases.
3
CATS stands for Comprehensive Assessment and Treatment Services, a provider of substance
abuse and mental health services within the Dallas County Community Supervision and
Corrections Department. http://www.dallascounty.org/department/csc/cats.php (last visited
January 13, 2015).
5
Issue 2: In determining Appellant’s punishment in these causes, the trial
court improperly considered facts not in evidence. Because the State did not
present any evidence of Appellant’s gang affiliation or activity, the trial court
abused its discretion by considering Appellant’s purported gang affiliation in
determining his punishment.
Issues 3 and 4: The trial court failed to remain neutral and detached in
these cases. The judge’s pervasive involvement in the hearing deprived Appellant
of his right to due process. The trial judge made frequent comments reflecting her
disdain towards Appellant, actively cross-examined Appellant, personally
concluded that Appellant was a gang member despite the fact that the State
presented absolutely no evidence of gang affiliation, and employed a bait and
switch approach regarding whether Appellant would or should call his mother to
testify on his behalf. The judge’s comments and conduct throughout the entire
proceeding demonstrate her adversarial position against Appellant which rendered
her biased against him. In light of the unique circumstances in these cases, the trial
judge demonstrated a failure to remain neutral and impartial in Appellant’s cases.
This Court should reverse and remand for a new punishment hearing in these
causes.
Issues 5 and 6: The record definitively establishes that the trial court
arbitrarily refused to consider any punishment less than ten years, which is
6
significantly higher than the two-year minimum term of imprisonment applicable
in these cases. The trial court’s comments at the very beginning of the hearing and
prior to the presentation of any evidence demonstrate her refusal to consider any
term of imprisonment less than ten years in these cases. This failure to consider the
full range of punishment violated Appellant’s right to due process.
Issue 7: The Court should reform the judgment to properly reflect that
there was no plea bargain in Appellate Cause No. 05-14-01316-CR.
ARGUMENT
POINT OF ERROR 1, RESTATED
The presiding judge violated Rule 605 of the Texas Rules of Evidence by
testifying as a witness in Appellant’s cases.
POINT OF ERROR 2, RESTATED
The trial court abused its discretion by considering evidence outside the record
in deciding Appellant’s sentences in these causes.
(Jointly Argued)
Facts
At Appellant’s initial court setting on September 15, 2014, the judge called
both cases and asked Appellant how to pronounce his last name. (RR3: 4).
Appellant complied. (RR3: 4). The trial court then immediately engaged Appellant
in the following exchange:
THE COURT: What’s that tattoo you have on your
chest?
7
THE DEFENDANT: Texas.
THE COURT: Oh, man. So you’re ready to go down;
you’re Texas Syndicate, right?
THE DEFENDANT: No, ma’am.
THE COURT: You seem to be kind of young to be a
member of that. You’ve been to prison before?
THE DEFENDANT: No, ma’am.
THE COURT: You got it for your daddy, Texas
Syndicate?
THE DEFENDANT: No, ma’am.
THE COURT: Who do you know that’s in Texas
Syndicate?
THE DEFENDANT: No one.
THE COURT: You just love the hell out of Texas, is
that it? You just love it so much you’re gonna mess up
your chest for Texas. Wow. I don’t know. No wonder
you can’t make this probation
….
THE COURT: Let me see your chest. I want to see
your tattoo.
THE DEFENDANT: (Demonstrates.)
THE COURT: What does that say, “O” what? What
are the initials?
THE DEFENDANT: OCT.
THE COURT: What?
8
THE DEFENDANT: OCT.
THE COURT: OCT?
THE DEFENDANT: Yes, ma’am.
THE COURT: What does that mean?
THE DEFENDANT: Oak Cliff, Texas.
THE COURT: No. Yeah. What did they offer you?
THE DEFENDANT: Ten years.
THE COURT: Yeah. I don’t know. Maybe you
should consider taking that.
MR. WARD [defense counsel]: We did a CATS eval,
Judge. The CATS eval said –
THE COURT: When did you get that tat?
THE DEFENDANT: When I was 15.
THE COURT: Why?
THE DEFENDANT: I was just – in my mind, at the
time, I thought it would be a good idea because I’ve been
in Dallas my whole life, in Oak Cliff. I’ve never moved
houses.
THE COURT: Do you have a mommy?
THE DEFENDANT: Yes, ma’am.
THE COURT: How old is she?
THE DEFENDANT: 50.
THE COURT: Do I look like her? I’m her same age.
9
Do I remind you of your mommy?
THE DEFENDANT: No, ma’am.
THE COURT: No, because I’m not buying that story,
not one bit. You were just so proud.
(RR3: 4-7). The hearing ended without any disposition when the court permitted
defense counsel an opportunity to discuss with his client how Appellant wished to
proceed in the case. (RR3: 9).
When the hearing continued on September 19, 2014, the court admitted
Appellant’s written and voluntary judicial confession and plea of true. (CR1: 25;
CR2: 59; RR4: 7-8; State’s Ex. 1). The State then rested without presenting any
witnesses or other evidence. (RR4: 8).
Appellant testified that he had a drug and alcohol problem and wanted
treatment to address his addiction. (RR4: 9-10). The CATS evaluation
recommended that Appellant receive outpatient treatment, but Appellant testified
that he would be willing to go to inpatient treatment if the court determined that
inpatient was a more appropriate course of action. (RR4: 9-10). Appellant
requested that he be continued on probation. (RR4: 10).
The State cross-examined Appellant as to the specific details of the June 25,
2014, burglary, with special attention to his drug use that day. (RR4: 13-20, 24).
The State also focused on Appellant’s failure to comply with his probation
conditions. (RR4: 15-16, 25-26). On re-direct, Appellant testified that he wanted
10
help with his drug addiction. (RR4: 28-30).
The judge then engaged in extensive questioning of Appellant. (RR4: 30-
45). During the course of her questioning, the judge and Appellant had the
following exchange:
THE COURT: Okay. And then what about this
4
weapon? Is that about the time that you got that tattoo on
your chest, that gang tattoo, OTC; is that right?
THE DEFENDANT: OCT, yes, ma’am.
THE COURT: OCT. Excuse me. So around the same
time that you were burglarizing these homes, that was
about when you were with this gang; is that right?
THE DEFENDANT: I wasn’t with a gang, ma’am. I
just had money and – and since I had – that’s how I
decided to use it. Another dumb decision.
THE COURT: Okay. All righty. So you tattoo on
your chest Texas – and what else does it say?
THE DEFENDANT: OCT. That’s it.
THE COURT: I can’t remember. Can I take a look at
it again? Let me see what it says.
THE DEFENDANT: (Demonstrates.)
THE COURT: Yeah. Okay. All righty. Okay.
(RR4: 35-36).
4
Although not entirely clear at this juncture of the proceeding, it appears the weapon related to a
prior offense. (RR3: 9; RR4: 35).
11
After additional extensive questioning from the judge, defense counsel and
the State made closing arguments. (RR4: 36-52, 52-55). The focus of defense
counsel’s argument was on intervention for drug treatment. (RR4: 52-54). The
State argued that Appellant’s problem was not related to substance abuse but to
bad decisions and judgment. (RR4: 54-55).
At the conclusion of these arguments, the court sentenced Appellant. (RR4:
55-58). During sentencing he judge made the following comments:
… I thought maybe after you got a little taste of what I
was talking about that you would then listen to your
lawyer’s advice, that maybe at least you’d start saying
the right things. But you just can’t help yourself; you just
can’t help it. And maybe your mother will be glad that
now – that she’ll know where you are all the time and she
won’t be worried about you out and about, hanging out
with gangsters or whoever you hang out with, breaking
into people’s homes, risking getting killed. Well, I guess
you could get killed in prison, but you already knew that,
right?
(RR4: 57-58) (emphasis added).
Analysis
I. The judge testified in violation of Rule 605.
A. Applicable Law
Rule 605 provides that “[t]he judge presiding at the trial may not testify in
that trial as a witness. No objection need be made in order to preserve the point.”
TEX. R. EVID. 605. The language of this rule is unambiguous in its prohibition.
12
Hensarling v. State, 829 S.W.2d 168, 170 (Tex. Crim. App. 1992). Its purpose is to
preserve the judge’s impartiality. Id.; see also O’Quinn v. Hall, 77 S.W.3d 438,
448 (Tex. App.—Corpus Christi 2002, no pet.).
In reviewing whether the trial court violated Rule 605, the question is
whether the judge’s statements of fact are essential to its judicial function or are
the functional equivalent of witness testimony. Hammond v. State, 799 S.W.2d
741, 746 (Tex. Crim. App. 1990); see also Lawrence v. State, No. 05-10-00083-
CR, 2011 Tex. App. LEXIS 2971, *8 (Tex. App.—Dallas Apr. 20, 2011, pet. ref’d)
(mem. op., not designated for publication). Statements related to the court’s
judicial function do not violate Rule 605. See, e.g., Hammond, 799 S.W.2d at 946-
47 (holding that the judge’s instruction to the court clerk to inform the jurors that
the defendant had escaped after the jury rendered a guilty verdict did not constitute
testimony as to the issue of the defendant’s future dangerousness; rather, because
the judge’s statements related to the jurors’ safety and were in furtherance of his
essential judicial function, the statements were not testimony); Lawrence, 2011
Tex. App. LEXIS 2971 at *8-9 (finding that the trial judge’s statements were not
testimony because he merely recounted the facts he heard on the record without
injecting any new facts into the proceeding). Judicial rulings and explanations of
judicial rulings do not constitute testimony. Lawrence, 2011 Tex. App. LEXIS
2971 at *10.
13
On the other hand, statements of fact that are the equivalent of witness
testimony violate Rule 605. See O’Quinn, 77 S.W.3d at 447-48 (“The trial court’s
determination of the date of notice was based on facts provided to the court by its
staff, facts that the court provided at the hearing. This created the appearance of
bias which Rule 605 seeks to prevent.”). Statements that inject new facts outside
the record constitute judicial testimony. Cf. Lawrence, 2011 Tex. App. LEXIS
2971 at *9 (noting that the judge’s comments did not violate Rule 605 because the
comments did not inject new facts into the proceeding).
B. Application of Law to the Facts
The judge’s multiple conclusory statements that Appellant was a member of
the gang Texas Syndicate injected new facts outside the record of these cases. The
State presented no evidence that Appellant was in any gang. Appellant did not
raise any issue related to gang membership. When the judge repeatedly questioned
Appellant about the tattoo on his chest, Appellant consistently maintained that he
was not a gang member. (RR3: 4-7; RR4: 35-36). The record contains no other
evidence to refute Appellant’s statement that he was not a gang member.
The judge’s numerous comments and conclusions about Appellant’s
purported gang affiliation cannot be construed as a judicial ruling or part of the
court’s judicial function. Rather, the judge’s statements of fact were the functional
equivalent of witness testimony. The only statements in the record regarding
14
Appellant’s gang affiliation, if any, came from the judge herself. Therefore, the
judge’s comments violated Rule 605’s absolute prohibition against judicial
testimony.
II. The trial court abused its discretion by considering Appellant’s
purported gang affiliation in determining Appellant’s sentences.
A. Applicable Law
During the punishment phase of trial, evidence as to any matter may be
offered if the trial court deems it relevant to sentencing. TEX. CODE CRIM. PROC.
art. 37.07, § 3(a). Appellant recognizes the trial court’s broad discretion to admit
evidence the court deems relevant to sentencing, including evidence of the
defendant’s reputation and character. Id.; Hayden v. State, 296 S.W.3d 549, 552
(Tex. Crim. App. 2009). A trial court abuses its discretion when it bases a ruling on
facts outside the record. O’Quinn, 77 S.W.3d at 446; see also In re Salgado, 53
S.W.3d 752, 758 (Tex. App.—El Paso 2001, orig. proceeding) (noting that a trial
court abuses its discretion when its ruling is based on factual assertions not
supported by the record).
Evidence of gang membership is relevant and admissible if the factfinder is
(1) provided evidence of the defendant’s gang membership; (2) provided evidence
of the gang’s character and reputation; (3) not required to determine if the
defendant committed bad acts or misconduct; and (4) only asked to consider the
reputation or character of the defendant. Beasley v. State, 902 S.W.2d 452, 456
15
(Tex. Crim. App. 1995); see also Jackson v. State, Nos. 05-13-00579-CR and 05-
13-00580-CR, 2014 Tex. App. LEXIS 9059, at *8-9 (Tex. App.—Dallas Aug. 14,
2014, no pet.) (mem. op., not designated for publication) (applying the Beasley test
to gang evidence offered during the punishment stage). Once the State establishes
gang membership, it must then present evidence of the activities of that particular
gang generally so that the factfinder can determine whether the defendant’s
membership in that particular gang is a positive or negative aspect of his character.
Beasley, 902 S.W.2d at 456; Hickman v. State, Nos. 05-10-01250-CR and 05-10-
01251-CR, 2013 Tex. App. LEXIS 9323, at *6 (Tex. App.—Dallas July 29, 2013,
no pet.) (mem. op., not designated for publication).
B. Application of Law to the Facts
Appellant recognizes that gang evidence may be relevant character or
reputation evidence. However, it is axiomatic that the State introduce such
evidence against the defendant during the hearing. In Appellant’s cases, the State
presented no evidence of Appellant’s affiliation with a gang, if any. Appellant did
not offer any testimony that would have opened the door to this gang evidence.
The trial judge introduced the gang evidence on her own accord.
Even if this Court were to consider the judge’s conclusory statements
regarding Appellant’s gang affiliation as evidence, the statements still fail the
Beasley test for admissibility. The judge did not have any actual evidence of
16
Appellant’s gang membership.5 Indeed, the judge seemed unfamiliar with “OCT”
and offered no connection between “OCT” and Texas Syndicate, if there is any.6
Nor did the judge state any facts or information supporting her conclusion that
Appellant’s Texas tattoo with “OCT” is a tattoo associated with Texas Syndicate.7
Furthermore, she did not present any evidence of the activities of Texas Syndicate
so that she could determine whether Appellant’s alleged membership in that gang
was a positive or negative aspect of his character. The judge’s own personal
conclusion that Appellant belonged to Texas Syndicate based on her viewing of
Appellant’s chest tattoo was not sufficient evidence to satisfy the Beasley test.
Therefore, the gang evidence in appellant’s cases was not relevant or admissible
punishment evidence in Appellant’s cases, and the trial court abused its discretion
in considering Appellant’s unsubstantiated gang affiliation in deciding his
5
Typically, the State presents gang evidence through expert testimony. See, e.g., Harris v. State,
No. AP-76,810, 2014 Tex. Crim. App. Unpub. LEXIS 517, at *57-63 (Tex. Crim. App. 2014)
(not designated for publication) (finding that the trial court did not abuse its discretion in
admitting expert testimony on the defendant’s gang tattoos); Jackson, 2014 Tex. App. LEXIS
9059, at *9-10 (finding that the Dallas police detective’s testimony as an expert on gangs and
gang tattoos sufficiently satisfied the Beasley test); Jackson v. State, 314 S.W.3d 118, 128 (Tex.
App.—Houston [1st Dist.] 2010, no pet.) (noting that evidence of a gang’s character and
reputation generally is usually offered through expert testimony of a law enforcement officer
familiar with that gang).
6
Texas Syndicate is a prison gang. See, e.g., Martinez v. State, 327 S.W.3d 727, 731 (Tex. Crim.
App. 2010); Urbano v. State, 837 S.W.2d 114, 116 (Tex. Crim. App. 1992); Gonzales v. State,
No. 05-02-00478-CR, 2003 Tex. App. LEXIS 6740, at *15 (Tex. App.—Dallas Aug. 6, 2003,
pet. ref’d) (not designated for publication); see also
http://www.prisonoffenders.com/texas_syndicate.html (last visited January 21, 2015). Appellant
testified that he had never been to prison. (RR3: 4).
17
sentences.
POINT OF ERROR 3, RESTATED
The trial court’s abandonment of its role as a neutral arbiter deprived Appellant
of his right to due process under the Fourteenth Amendment of the United States
Constitution.
POINT OF ERROR 4, RESTATED
The trial court’s abandonment of its role as a neutral arbiter deprived Appellant
of his right to due course of law under Article I, § 19 of the Texas Constitution.
(Jointly Argued)
Applicable Law
A defendant has a due process right to a fair trial in a fair tribunal. In re
Murchison, 349 U.S. 133, 136 (1955); U.S. CONST. amend. XIV; see also TEX.
CONST. art. I, § 19 (providing for due course of law). Due process requires that a
criminal trial be held before a neutral and detached judge with no actual bias
against the defendant. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Brumit v.
State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). This same due process right
to a trial before a neutral and detached hearing body applies to open plea hearings
and probation revocation hearings. See, e.g., Grado v. State, 445 S.W.3d 736, 739
(Tex. Crim. App. 2014) (recognizing that due process requires a revocation hearing
before a neutral and detached judge); Peterson v. State, No. 05-12-01417-CR, 2013
Tex. App. LEXIS 13282, at *1-11 (Tex. App.—Dallas Oct. 24, 2013, no pet.)
(mem. op., not designated for publication) (evaluating whether the trial court’s
18
comments made during the defendant’s open plea hearing violated his right to due
process); Allen v. State, No. 05-12-00672-CR, 2013 Tex. App. LEXIS 4701, at *1-
5 (Tex. App.—Dallas Apr. 11, 2013, no pet.) (mem. op., not designated for
publication) (evaluating whether the trial court’s cross-examination of the
defendant’s testimony during his open plea hearing violated his right to due
process); Guin v. State, 209 S.W.3d 682, 687 (Tex. App.—Texarkana 2006, no
pet.) (noting that due process requires the trial court to maintain its neutral and
detached role when determining whether the defendant should be placed on
community supervision).
Appellant recognizes that the trial court has broad discretion over the
conduct of court proceedings. See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194,
199 (Tex. Crim. App. 2003); Wilson v. State, Nos. 05-10-01362-CR, 05-10-01363-
CR, and 05-10-01364-CR, 2011 Tex. App. LEXIS 9702, at *5 (Tex. App.—Dallas
Dec. 12, 2011) (mem. op., not designated for publication); Guerrero v. State, 143
S.W.3d 283, 284 (Tex. App.—Waco 2004, no pet.). However, this discretion is not
unfettered, and the judge must maintain a neutral and detached role so as not to
violate a defendant’s constitutional right to an impartial judge. Wilson, 2011 Tex.
App. LEXIS 9702, at *5; Bethany v. State, 814 S.W.2d 455, 462 (Tex. App.—
Houston [14th Dist.] 1991, no pet.).
A judge should not act as an advocate or adversary for any party. Brown v.
19
State, 122 S.W.3d 794, 797 (Tex. Crim. App. 2003); Dockstader v. State, 233
S.W.3d 98, 108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d); Taylor v.
State, Nos. 05-13-01369-CR and 05-13-01370-CR, 2014 Tex. App. LEXIS 13918,
at *7-9 (Tex. App.—Dallas Dec. 30, 2014, no pet. h.) (mem. op., not designated
for publication). To reverse a judgment based on a judge’s improper conduct or
comments during a proceeding, an appellate court must find (1) that the judicial
impropriety was in fact committed, and (2) probable prejudice to the complaining
party. Dockstader, 233 S.W.3d at 108.
Preservation
Appellant anticipates that the State may argue that Appellant did not
preserve these issues for appellate review because he did not object to the trial
court’s comments and questions. Appellant recognizes that when no objection is
made to the remarks and conduct of the trial court may not be challenged on appeal
unless they are fundamentally erroneous. See Brewer v. State, 572 S.W.2d 719,
721 (Tex. Crim. App. [Panel Op.] 1978); Peterson, 2013 Tex. App. LEXIS 13282,
at *6-7; Wilson, 2011 Tex. App. LEXIS 9702, at *4-5.
The pervasive and harmful nature of the trial court’s comments and active
involvement in Appellant’s cases constitutes fundamental error and, therefore, an
objection was not required to preserve error. See Jasper v. State, 61 S.W.3d 413,
420 (Tex. Crim. App. 2001) (noting that an objection is not required to preserve
20
fundamental error); Moreno v. State, 900 S.W.2d 357, 359 (Tex. App.—Texarkana
1995, no pet.) (noting that harm that was so egregious that the defendant was
denied a fair and impartial trial constitutes fundamental error and does not require
preservation). Under the unique circumstances and facts of the instant cases, no
objection was required. This Court should address Appellant’s arguments on the
merits.
Analysis
Throughout the hearing in Appellant’s cases, the trial judge was an active
participant to a degree that exceeded the permissible scope of her role in
determining Appellant’s sentences. The judge’s conduct breached the bounds of a
neutral and detached arbiter of justice.
A. The trial judge’s comments throughout the entire hearing reflect a
failure to remain neutral and detached.
The judge made numerous comments throughout the hearing and prior to
closing argument by either party. The following comments, though not an
exhaustive list, illustrate the types and tenor of the comments the judge made
throughout the entire proceeding.
1. Prior to accepting Appellant’s pleas.
• “Well, the good part is that they didn’t blow your head off. Well, I
don’t know. There are some things worse than death. Going to a
Texas prison for ten years, yeah, I think I’d rather be dead than do
that.” (RR3: 7-8).
21
• “Well, I don’t know. Wow. Oh, my God, and your mother has cancer,
and here you are making things worse for her. That’s gonna make me
so mad. If I hear about that, I’m going to be so pissed. Oh, my God.
She’s dying of cancer, and he’s getting high and breaking into
people’s homes.” (RR3: 8).
• The judge asked Appellant who was taking care of his mother, and he
responded, “She’s out there alone.” (RR3: 8). The judge then asked
Appellant what his mother had done to make him treat her that way.
(RR3: 8). Appellant answered that she had not abused him and was
not mean to him. (RR3: 8-9). The judge then stated, “Yeah. Wow.
Wow. Wow. Wow. How are we going to clear that up? I don’t know. I
don’t know. I’m thinking ten might be good for you than going open
to me.” (RR3: 9).
2. During Appellant’s testimony.
• In response to Appellant’s testimony that his girlfriend begged him
not to leave the house on the night of the new burglary offense and
that his mother did not know he was leaving the house, the judge said,
“Wow. She was crying begging you to stay?” and “Wow. That’s
cold.”8 (RR4: 20-21).
• When the State concluded its cross-examination of Appellant and
passed the witness, the judge said, “Wow. That’s incredible, how you
see yourself.” (RR4: 28).
3. After both the defense and the State concluded direct and cross-
examination of Appellant.
• “Okay. Well, this is what I’m thinking, Mr. Gayton. You’re very, very
scary, because you have a mother with cancer who’s dying, who
you’ve been disappointing your whole life by violating the law, okay.
She had cancer when you started getting wasted, if what you’re telling
me is true. You had a girlfriend that was there that you traumatized,
that she was crying – I don’t know why.” (RR4: 42-43).
8
Appellant lived with his mother, and his girlfriend stayed with him at the time of the 2014
burglary case. (RR4: 20, 37-38).
22
4. After closing arguments.
• “Mr. Gayton, I know that you probably, seriously, feel like you’ve
been victimized your whole life, that you’ve been a victim of your –
of your circumstances. You feel like you were justified in burglarizing
because your daddy left you; you didn’t want your mother supporting
you. Yeah, maybe you do feel depressed about that stuff, but, you
know, it’s not the way to be.” (RR4: 55).
• “You know, it was horrible that you – you’ve been self-centered your
whole life, always wanting to do just whatever you want to do, having
a total disregard for your family, continuingly upsetting your family
by getting arrested by going out and burglarizing homes. You stand
there and really think that you’re gonna be able to convince me – even
after your lawyer told you that I thought you needed to take the ten,
you stand there, thinking that you know better than your lawyer and
that you know better than everyone else in the world what – what
needs to happen. One burglary? Sure, let’s give you probation. Two
burglaries as a kid? Yeah, let’s send you to Medlock, try and get you
straight. Your first burglary of a habitation, that’s really nice of the
DAs to give you a shot at it, probation. But you drinking, smoking,
taking Xanax while you’re on felony probation, looking at 20 years in
prison, and then not caring about your mother’s health one bit, going
out and burglarizing and, furthermore, not caring that she’s having to
go through radiation treatments and chemo, that’s not important.
What’s important is for her to get her butt down here to try and save
your butt. That is some of the most self-centered, most selfish
thinking that I have ever heard.” (RR4: 55-56).
These remarks are a clear indication that the judge was biased against
Appellant even before taking Appellant’s pleas in these cases. While Appellant
recognizes that disapproving or critical remarks in and of themselves generally do
not support a finding of bias or partiality, the judge’s numerous comments
throughout Appellant’s hearing clearly reflect disdain towards Appellant. These
remarks established a biased tone against Appellant throughout the entire
23
proceeding. The judge’s numerous comments reveal such a high degree of
antagonism against Appellant so as to render her ability to make fair judgment
impossible. Charboneau v. State, No. 05-13-00340-CR, 2014 Tex. App. LEXIS
13923, at *7-8 (Tex. App.—Dallas Dec. 30, 2014, no pet. h.) (mem. op., not
designated for publication); Dockstader, 233 S.W 3d at 108.
B. The trial judge’s active participation in cross-examining Appellant
reflects a failure to remain neutral and detached.
The trial judge actively engaged in cross-examination of Appellant
throughout the hearing. Appellant recognizes that a judge may question a testifying
witness to clarify a particular point or to have the witness repeat something the
judge could not hear. Wilson, 2011 Tex. App. LEXIS 9702, at *5; Moreno, 900
S.W.2d at 359. However, when a judge exceeds this permissible scope of
questioning, two dangers arise: (1) the judge may convey his opinion of the case
and ultimately influence the jury’s decision, or (2) the judge may become an
advocate in the adversarial process and lose the neutral and detached role required
for the fact finder and the judge. Moreno, 900 S.W.2d at 359.
The trial court must maintain its neutral and detached role when asking
questions of a testifying witness. Guin, 209 S.W.3d at 687. A judge may not
assume the role of a prosecutor and become an advocate for the State. Brown, 122
S.W.3d at 797; Dockstader, 233 S.W.3d at 108; Wilson, 2011 Tex. App. LEXIS
9702, at *7; Avilez v. State, 333 S.W.3d 661, 673 (Tex. App.—Houston [1st Dist.]
24
2010, pet. ref’d).
The judge’s cross-examination of Appellant was much more extensive than
the prosecutor’s cross-examination. (RR4: 30-45). By engaging in this extensive
cross-examination of Appellant, the judge usurped the State and assumed the role
of prosecutor and investigator. The judge’s cross-examination of Appellant in an
effort to solicit specific facts and details not raised by either the State or the
defense exceeded the permissible bounds of the kinds of questions a judge may ask
a witness. The judge’s active participation in the hearing eclipsed her obligation to
remain neutral and detached.
C. The trial judge’s consideration of Appellant’s purported gang
membership which was wholly unsupported by any evidence reflects a
failure to remain neutral and detached.
The judge also demonstrated her biased stance against Appellant when she
began the hearing by personally investigating Appellant’s chest tattoo. (RR3: 4-7).
Not only did she ask detailed questions about his tattoo and request to see his chest
tattoo on two occasions, she also formed her own opinion that this tattoo meant
Appellant was in a gang despite his consistent denial. See POINTS OF ERROR 1 AND
2, RESTATED supra; (RR3: 4-7; RR4: 35-36). The State did not present any
evidence to rebut Appellant’s claim that he was not in a gang. The judge’s specific
comment during sentencing that Appellant’s mother would now not have to worry
about Appellant “hanging out with all these gangsters” shows that the judge’s
25
personal conclusion that Appellant was in a gang influenced her sentencing
decision. (RR4: 5). Consequently, the judge demonstrated a complete failure to
remain neutral and detached by considering these extrajudicial matters in deciding
Appellant’s sentences. See Taylor, 2014 Tex. App. LEXIS 13918, at *7-9
(reversing and remanding the cases because the record demonstrated that the trial
judge’s opinion based on extrajudicial information influenced her sentencing
decision and she did not exhibit the actions of an unbiased judicial officer).
D. The trial judge’s bait and switch approach towards Appellant’s desire
to call his mother to testify as a witness on his behalf reflects a failure to
remain neutral and detached.
During the course of the trial judge’s extensive cross-examination of
Appellant, she engaged Appellant in the following exchange:
THE COURT: …. How many times have you been
under rules of a judge? And you’ve never been able to
comply with probation, right? You’ve never been able to
make it?
THE DEFENDANT: Yes, ma’am.
THE COURT: You don’t have your mom here. You
don’t have your girlfriend here. Nobody here to back up
what you’re saying.
THE DEFENDANT: I didn’t know when my court
date was.
THE COURT: I’ll gladly give you a continuance.
Mr. Ward, you want a continuance to bring all these
witnesses down?
26
MR. WARD: Your Honor, well, if he – if that’s
what he wants, that’s fine.
THE COURT: Or I can just call your mom right now.
MR. WARD: Your Honor, we had – and just for the
record, we had – we had reset this case the last time, and
I recall being back there, giving him the Court date so as
to allow him time to contact his mother, let her know
what’s going on.
THE COURT: How much time do you need, sir? I’d
love to hear from your mom and your girlfriend.
THE DEFENDANT: They should come, maybe –
I’m pretty sure tomorrow, unless something happens. But
she –
THE COURT: Oh, so you’ve been talking to her?
THE DEFENDANT: Yes, ma’am, she –
THE COURT: Did you tell her about this court date?
THE DEFENDANT: No, ma’am. I didn't know that
this was gonna be the exact date that I was gonna come
to court. I just knew this week I was coming back.
THE COURT: But you didn’t call to ask her to come
down?
THE DEFENDANT: I didn’t have – I didn’t know –
THE COURT: And she’s able to walk around and
everything, right?
THE DEFENDANT: Yes, ma’am, when she’s not in
pain. She has certain times throughout the day when she
tells me that –
27
THE COURT: And your – she’s been visiting you in
the jail?
THE DEFENDANT: Yes, ma’am.
THE COURT: And your girlfriend has been visiting
you?
THE DEFENDANT: Yes, ma’am, they come together.
THE COURT: Your siblings?
THE DEFENDANT: They came once.
THE COURT: What do y’all talk about? Does your
mom cry?
THE DEFENDANT: Yes, ma’am.
THE COURT: Does your girlfriend cry?
THE DEFENDANT: Yes, ma’am.
THE COURT: Does your girlfriend say, look, I told
you not to go out; I told you not to be drinking?
THE DEFENDANT: Yes, ma’am.
THE COURT: I bet your mom is tired of crying for
you. What else do you think your mother’s gonna tell me,
other than cry for – beg for mercy, maybe, for you?
THE DEFENDANT: I don’t know, ma’am.
THE COURT: You don’t know what she’s gonna
say?
THE DEFENDANT: No, ma’am.
28
THE COURT: Do you know what your girlfriend’s
gonna say –
THE DEFENDANT: No, ma’am.
THE COURT: -- other than just cry for you again?
THE DEFENDANT: No, ma’am.
THE COURT: Okay. So you want a continuance?
THE DEFENDANT: Yes, ma’am.
THE COURT: All right. Well, we're gonna do that.
I’m accepting your pleas. I’m finding that you’re
mentally competent to enter your pleas. I’m finding that
your pleas are being made freely and voluntarily. Based
on your pleas and on the evidence presented in each of
these cases, there is enough for the Court to find you
guilty as charged in the 14 – 2014 case, and I’m finding
all the allegations – in the motion to proceed, I’m finding
all of them true. I’m taking no further action. I am
passing your case to give you and your attorney the –
attorney the opportunity to present more evidence that
might be helpful. Mr. Ward, I mean, he doesn’t know
what his witnesses are going to say. Do you want a
continuance?
MR. WARD: Your Honor, if you would like – you
would like them to come, I will do another continuance
to allow more time for them to come to the next date that
he will be informed of as well.
THE COURT: Did your lawyer give you a copy of
the pass slip, sir, last time?
THE DEFENDANT: No, ma’am.
THE COURT: No? And you don’t remember him
telling you anything about your court date?
29
THE DEFENDANT: I mean, he told me I was going
to come back this week, in a couple of days, but I didn’t
know the exact date.
THE COURT: And you didn’t talk about it with your
mom? You’ve never talked with your mom or your
girlfriend about coming down to testify for you? Never?
THE DEFENDANT: No, ma’am. I didn’t have
money on the phone to call them to let them know to
notify them.
THE COURT: There’s always a reason for you not to
do the right thing. All righty, if you want to put them
through that. Yeah, you want me to call them to see if
they’ll come down?
THE DEFENDANT: Yes, ma’am.
THE COURT: Yeah. Let me call right now. Ruth
Skinner, is that your mom’s name?
THE DEFENDANT: Yes, ma’am.
THE COURT: Let me make sure. How come you got
two phone numbers for your mom?
THE DEFENDANT: I don’t recall putting two
numbers down.
THE COURT: What?
THE DEFENDANT: The house number is 337-1948.
THE COURT: Oh, I don’t have either of those.
What’s your mother’s number?
THE DEFENDANT: 214-337-1948.
30
THE COURT: Don’t you have to call collect to talk
to your mother? They don’t do that anymore?
THE DEFENDANT: I used those 60 seconds
already. I can’t call anymore.
(The Court places telephone call.)
THE COURT: Well, she had radiation this morning,
and she’s going to have radiation on Monday. She’d be
glad to come down and testify for you, but I think she’s
gonna have chemo on the 25th, so she might still be a
little under the weather. You still want her to come?
THE DEFENDANT: No, ma’am.
THE COURT: All righty. Mr. Ward, do you want –
either argue for a motion for continuance or argue for
what I’m going to do as far as punishment?
MR. WARD: Well, may I speak with my client
first?
THE COURT: Go ahead. Go talk to your lawyer in
private.
(RR4: 45-50). The judge took a brief recess. (RR4: 50).
The judge then engaged in the following exchange with Appellant and
defense counsel:
THE COURT: Back on the record. Mr. Ward, do you
want to proceed, or do you want to ask for a
continuance?
MR. WARD: Judge, I would ask the Court for a
continuance so as to allow his mother a chance to come
here and –
31
THE COURT: All righty, then.
MR. WARD: That’s after consulting with my client,
Your Honor.
THE COURT: Well, okay. Well, then, just get with
the DA and find out when a good day is for this woman
to come down. She’s probably gonna have to check with
her 30-year-old daughter that’s been taking care of her, to
see if she can bring her down. I don’t know how soon
she’ll be able to get up and come to the courthouse after
radiation and after chemo or whether she’ll have to
consult with her doctor to see if this is even a healthy
environment for her to be around, seeing that she’s going
to be in such a delicate position. But we’ll go ahead and
grant you a continuance.
THE DEFENDANT: Thank you, Your Honor.
THE COURT: Oh, you should not be thanking me.
If you think that you’re impressing me by dragging
your dying mother down here to testify for you, you’re
doing just the opposite, sir. Go with the sheriff.
….
THE COURT: Back on the record.
….
THE COURT: Just so the record is clear, now you’ve
changed your mind? Now you want to go ahead and do it
today?
THE DEFENDANT: Yes, ma’am.
THE COURT: Because you don’t want me to ding
you for dragging your poor mother down here to try and
get you out of your mess yet a tenth time; is that right?
32
THE DEFENDANT: Yes, ma’am.
THE COURT: All righty. Mr. Ward.
(RR4: 50-52) (emphasis added).
As evident from the trial court’s extensive discussion with Appellant and his
attorney about calling Appellant’s mother to testify on his behalf, the trial court
baited Appellant into requesting a continuance so that his mother could testify on
his behalf. It is obvious from the judge’s comments that she held it against
Appellant for not having any witnesses to testify on his behalf to support him.
Based on this information, the judge concluded that Appellant would not be
successful on probation. It was reasonable for Appellant to infer from the judge’s
comments that the trial court would not consider probation because he had no
support system in his life.
The judge then held it against Appellant when he requested the continuance
so his mother could testify for him. The judge chastised him for wanting to bring
his dying mother to testify on his behalf even though he was simply trying to
comply with the judge’s strong suggestion that his mother testify on his behalf.
The record demonstrates that the judge placed Appellant in a no-win
situation: the judge unequivocally suggested that Appellant’s decision not to call
his mother to testify on his behalf represented his lack of support at home, then
made clear that Appellant’s decision to call his mother represented his utter lack of
33
good judgment because his mother was sick with cancer. This conduct does not
reflect the actions of an unbiased judicial officer.
E. Conclusion.
Under the unique circumstances of these cases, the judge improperly
injected herself into the proceedings to a degree that prevented her from remaining
neutral and detached in these cases. The judge’s adversarial stance and active
involvement in Appellant’s hearing was prejudicial to Appellant because the judge
did not consider the actual evidence presented by the State and the defense.
Consequently, Appellant was deprived of his right to a fair and impartial
sentencing hearing. This Court should reverse and remand these causes for a new
punishment hearing.
POINT OF ERROR 5, RESTATED
The trial court arbitrarily refused to consider the full range of punishment in
these causes in violation of Appellant’s right to due process.
POINT OF ERROR 6, RESTATED
The trial court arbitrarily refused to consider the full range of punishment in
these causes in violation of Appellant’s right to due course of law.
(Jointly Argued)
Facts
After calling both cases, but before Appellant entered his pleas and before
presentation of any evidence or testimony, the trial court asked defense counsel,
34
“What happened? Why are we here? What are we doing?” (RR3: 5). Appellant’s
attorney responded, “We’re going open before the Court, asking that the Court
allow him to – my client to stay on probation.” (RR3: 4).
A few moments later in the proceeding, and after additional discussion of
Appellant’s chest tattoo, the judge asked Appellant, “What did [the State] offer
you?” (RR3: 5-6). Appellant responded that the State’s offer was ten years. (RR3:
6). The judge responded, “Yeah. I don’t know. Maybe you should consider taking
that.” (RR3: 6). At this point, Appellant’s attorney attempted to inform the court
about the findings in the CATS evaluation, but the court interrupted and started
asking more questions about Appellant’s chest tattoo. (RR3: 6-7).
After further discussion of matters not relevant to this point of error (see
POINTS OF ERROR 4 AND 5, Restated supra), the judge said, “Yeah. Wow. Wow.
Wow. Wow. How are we going to clear that up? I don’t know. I don’t know. I
don’t know. I’m thinking ten might be good for you than going open to me. Hold
on. Let me see. Juvenile, two counts – oh, no, you were burglarizing as a
juvenile?” (RR3: 9). Appellant admitted he had juvenile cases. (RR3: 9). The judge
then said, “Seriously, I might give him more than ten. Do you want to keep going
open? He’s just a thug. Don’t gave a shit about anything. Doesn’t give a shit about
his mommy. Guns, breaking, same day – same thing different year, no.” (RR3: 9).
The court permitted defense counsel an opportunity to discuss with Appellant his
35
course of action. (RR3: 9). At the end of the hearing four days after this initial
exchange, the court sentenced Appellant to fifteen years in each case. (RR4: 55-
57).
Applicable Law
The federal and state constitutions guarantee the right to a fair trial.9 U.S.
CONST. amend. XIV; TEX. CONST. art. I, §19. Due process requires that a judge
remain neutral and detached when assessing punishment. Gagnon, 411 U.S. at 786;
Brumit, 206 S.W.3d at 645. A trial court’s arbitrary refusal to consider the entire
punishment range applicable to the case or to consider the evidence and impose a
predetermined sentence constitutes a denial of due process. Grado, 445 S.W.3d at
739; Jefferson v. State, 803 S.W.2d 470, 471 (Tex. App.—Dallas 1991, no pet.).
Analysis
The record affirmatively shows that the trial judge arbitrarily failed to
consider the full range of punishment in Appellant’s cases. The minimum term of
imprisonment in these second degree felonies is two years. TEX. PENAL CODE §
12.33 (providing that the punishment range for a second degree felony is two to
twenty years’ imprisonment); § 30.02(c)(2) (providing that burglary of a habitation
9
Appellant does not argue that his rights under the Texas Constitution are greater than his rights
under the federal constitution. Earley v. State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi
1993, pet. dism’d as improvidently granted) (noting that “[d]ue process of law requires a neutral
and detached hearing body or officer. The Texas Constitution requires no less.”) (citations
omitted).
36
is a second degree felony). Without hearing any testimony whatsoever, the trial
judge arbitrarily established her baseline minimum sentence at ten years by telling
Appellant he should take the State’s ten-year offer. Ten years far exceeds the
minimum two-year term of imprisonment applicable in these cases. The trial
court’s failure to consider the entire punishment range of two to twenty years
violated Appellant’s right to due process and right to due course of law. This Court
should reverse and remand for a new punishment hearing in both causes. Ex parte
Brown, 158 S.W.3d 449, 456-57 (Tex. Crim. App. 2005) (finding that the trial
judge arbitrarily failed to consider the entire punishment range and remanding the
case to the trial court for a new sentencing hearing).
POINT OF ERROR 7, RESTATED
The Court should reform the judgment in Appellate Cause No. 05-14-01316-CR.
This Court should exercise its authority to correct the judgment in Appellate
Cause No. 05-14-01316-CR. This Court has the authority to amend the judgment
to “speak the truth” when it has the necessary data and information to do so. TEX.
R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993);
Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d).
The record provides the necessary information and data for this Court to correct the
inaccuracy in the judgment in Appellate Cause No. 05-14-01316-CR.
The judgment in Appellate Cause No. 05-14-01316-CR reflects the
37
following: “Terms of Plea Bargain: 15 years TDC.” (CR2: 61-63). However, the
record clearly reflects that the trial court did not sentence Appellant pursuant to a
plea bargain agreement with the State. Appellant entered an open plea of true to the
State’s motion to adjudicate and requested that the judge continue his deferred
adjudication probation. (CR2: 58-59; RR3: 5; RR4: 5-6). The trial court’s
certification of Appellant’s right to appeal also reflects that this case was not a plea
bargain case. (CR2: 60). Because the record unequivocally establishes that the trial
court sentenced Appellant pursuant to an open plea rather than a plea bargain
agreement with the State, this Court should reform the judgment in Appellate
Cause No. 05-14-01316-CR.
38
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this
Court reverse and remand both causes for a new punishment hearing. In the
alternative, Appellant prays that this Court reform the judgment in Appellate Cause
No. 05-14-01316-CR.
Respectfully submitted,
/s/ Julie Woods
Lynn Richardson Julie Woods
Chief Public Defender Assistant Public Defender
Dallas County, Texas State Bar No. 24046173
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Katherine A. Drew Dallas, Texas 75207-4399
Chief, Appellate Division (214) 653-3550 (phone)
Dallas County Public Defender’s Office (214) 875-2363 (fax)
Julie.Woods@dallascounty.org
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing brief was served on the
Dallas County Criminal District Attorney’s Office (Appellate Division), 133 N.
Riverfront Blvd., 10th Floor, Dallas, Texas 75207, by eServe on January 21, 2015.
/s/ Julie Woods
Julie Woods
39
CERTIFICATE OF COMPLIANCE
I certify that the word count in this document, which was prepared in
Microsoft Word 2010, is 9,906.
/s/ Julie Woods
Julie Woods
40