NUMBER 13-13-00172-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ABRAHAM JACOB PROENZA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 445th District Court
of Cameron County, Texas.
ORDER
Before Chief Justice Valdez and Justices Rodriguez and Contreras1
Order Per Curiam
On July 23, 2015, this Court issued an opinion reversing Abraham Jacob
Proenza’s conviction and remanding for proceedings consistent with our opinion. See
Proenza v. State, 471 S.W.3d 35, 55 (Tex. App.—Corpus Christi 2015), aff’d in part, and
1 Justice Dori Contreras, formerly Dori Contreras Garza. See TEX. FAM. CODE ANN. § 45.101 et
seq. (West, Westlaw through 2017 1st C.S.).
rev’d and rem’d in part, ___ S.W.3d ___, 2017 WL 5483135, at *11 (Tex. Crim. App.
Nov. 15, 2017). The Texas Court of Criminal Appeals agreed with this Court that
Proenza did not forfeit his article 38.05 statutory appellate claim of improper judicial
comments and affirmed our ruling in that regard. Proenza, ___ S.W.3d at ___, 2017 WL
5483135, at *10. More specifically, the court of criminal appeals based its preservation
holding on the Marin v. State framework and concluded the following:
claims of improper judicial comments raised under Article 38.05 are not
within Marin's third class of forfeitable rights. Rather, we believe that the
right to be tried in a proceeding devoid of improper judicial commentary is
at least a category-two, waiver-only right. Because the record does not
reflect that Proenza plainly, freely, and intelligently waived his right to his
trial judge's compliance with Article 38.05, his statutory claim in this matter
is not forfeited and may be urged for the first time on appeal.
Id.; see Marin, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (identifying the second of
three types of error-preservation rules as “rights of litigants which must be implemented
by the system unless expressly waived”).
The Texas Court of Criminal Appeals continued, “‘when only a statutory violation
is claimed, [as in this case,] the error must be treated as non-constitutional for the purpose
of conducting a harm analysis.’” Proenza, ___ S.W.3d at ___, 2017 WL 5483135, at *18
(quoting Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim. App. 2005)). Because we applied
the standard of harm that is associated with constitutional error, the court of criminal
appeals reversed our judgment and remanded the case to allow this Court to apply the
non-constitutional harm analysis contained in Texas Rule of Appellate Procedure 44.2(b).
See id.; see also TEX. R. APP. P. 44.2(b) (explaining that any error, other than
constitutional error, “that does not affect substantial rights must be disregarded”).
2
In light of the briefs and the court of criminal appeal’s opinion, this Court requests
amended briefing, which shall be limited solely to the issue designated by the court of
criminal appeals on remand.2 See TEX. R. APP. P. 38.7 (“A brief may be amended or
supplemented whenever justice requires, on whatever terms the court may prescribe.”).
Therefore, it is ordered that appellant Proenza file his amended brief within thirty days
from the date of this order and appellee the State of Texas file its amended brief within
thirty days after Proenza’s amended brief is filed.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 9th
day of January, 2018.
2 Amended briefing on other issues, if necessary, will be by separate order.
3