Kiwinoskey Walker v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-19-00309-CR
___________________________

KIWINOSKEY WALKER, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. F18-2575-431

Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Bassel
 MEMORANDUM OPINION

I. Introduction

Appellant Kiwinoskey Walker appeals his conviction for assault–family

violence enhanced. In two issues, Walker argues that the trial court erred by allowing

evidence of his prior conviction for family violence to be introduced during the guilt–

innocence phase and that the trial court’s comments and actions demonstrated bias

and deprived him of his constitutional right to a fair trial. Because we hold that

Appellant’s prior assault–family violence conviction was an element of the offense of

felony assault–family violence and was therefore properly introduced during guilt–

innocence and that Appellant did not demonstrate that the trial court’s comments and

actions constituted actual bias, we affirm.

II. Brief Background 1

While driving his car in Denton, Appellant became angry with his girlfriend,

who was riding in the passenger seat. He punched her, bit multiple places on her

body, and choked her around the throat. She ran to a fire station and was transported

to a hospital where she was treated for a concussion, bite marks on her thumb and

chest, and a gash to her eye that required stitches.

After the above evidence was presented, along with evidence that Appellant

had a prior conviction for assault–family violence, the jury acquitted him of assault–

1
Because Appellant does not challenge the sufficiency of the evidence to
support his conviction, we omit a detailed factual background and will set forth
additional background information as necessary in our analysis of Appellant’s issues.

2
family violence by impeding breath or circulation but convicted him of assault–family

violence with a prior conviction under Texas Penal Code Section 22.01(b)(2)(A). The

jury assessed Appellant’s punishment at ten years in prison, and the trial court

sentenced him in accordance with the jury’s recommendation.

III. A Prior Conviction is an Element of the Third-Degree Felony of Assault–
Family Violence

In his first issue, Appellant argues that the trial court erred by allowing

evidence of his prior family-violence conviction to be introduced during the guilt–

innocence phase. Appellant contends that his prior conviction was an enhancement

rather than an element of the offense and that it should not have been presented to

the jury until the punishment phase.

This issue has been thoroughly analyzed and resolved contrary to Appellant’s

contention by the San Antonio Court of Appeals in Reyes v. State as follows:

Central to our review is whether the allegation of the prior assault
conviction is an element of the offense [of felony assault–family
violence] or merely an allegation for the purpose of enhancement of
punishment. A prior conviction alleged for enhancement [] “is not really
a component element of the primary offense.” Brooks v. State, 957
S.W.2d 30, 32 (Tex. Crim. App. 1997). Although a defendant is entitled
to notice that the State intends to enhance his punishment through the
use of prior convictions, enhancement allegations are not required to be
ple[aded] in an indictment. Id. at 34. Thus, if the prior assault
conviction is an enhancement allegation, it is not an element of the
offense[] and need not be included in a hypothetically correct jury charge
for a conviction of the primary offense.

Relying on Calton v. State, [appellant] argues [that] the allegation of
the prior assault conviction is an element of the offense for which he
was charged. 176 S.W.3d 231, 236 (Tex. Crim. App. 2005). In Calton,

3
the court addressed whether the allegation of a prior conviction under
the evading arrest statute was an element of the offense. The court
explained that when determining “whether any given fact constitutes an
element of the offense,” the court must look to the plain language of the
statute involved and apply that plain language if it is not ambiguous. Id.
at 233. If the language is ambiguous or would lead to an absurd result,
we resort to extra-textual sources to determine the element of the
offense. Id. The court began its analysis with a review of the text of
[S]ection 38.04 of the Penal Code which provides in relevant part:

§ 38.04 Evading Arrest or Detention

(a) A person commits an offense if he intentionally flees
from a person he knows is a peace officer attempting to lawfully
arrest or detain him.

(b) An offense under this section is a Class B misdemeanor,
except that the offense is:

(1) a state jail felony if the actor uses a vehicle while
the actor is in flight and the actor has not been previously
convicted under this section;

(2) a felony of the third degree if:

(A) the actor uses a vehicle while the actor is
in flight and the actor has been previously convicted
under this section[.]

Tex. Penal Code Ann. § 38.04 . . . . The court determined [that] the
statute was not ambiguous. The court held that a conviction for the
offense [of] evading arrest as an element of a third-degree felony could
not occur without proving the actor has previously been convicted of
evading arrest. Id. at 234. The court concluded from the plain language
of the statute that a prior conviction for evading arrest is an element for
the offense of third-degree felony evading arrest. Id.

Applying the court’s analysis in Calton, we conclude [that] the allegation
of the prior assault conviction is also an element of the offense of assault causing bodily
injury when ple[aded] as a third-degree felony. The structure of [S]ection 22.01,

4
 which defines the offense of assault causing bodily injury, is similar to
that of evading arrest.

§ 22.01 Assault

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes
bodily injury to another, including the person’s spouse;

[. . . .]

(b) An offense under Subsection (a)(1) is a Class A
misdemeanor, except that the offense is a felony of the third
degree if the offense is committed against:

[. . . .]

(2) a person whose relationship to or association
with the defendant is described by Section 71.0021(b),
71.003, or 71.005, Family Code, if:

(A) it is shown on the trial of the offense that
the defendant has been previously convicted of an
offense under this chapter, . . . against a person
whose relationship to or association with the
defendant is described by Section 71.0021(b), 71.003,
or 71.005, Family Code[.]

Tex. Penal Code Ann. § 22.01[(a)(1), (b)(2)(A)]. Section 22.01(b)(2) is
not ambiguous, and the plain language of the statute requires proof of a
prior conviction. Accordingly, proof of a prior assault conviction is an element
of the offense and must be included in a hypothetically correct charge and
proven beyond a reasonable doubt.

314 S.W.3d 74, 80–81 (Tex. App.—San Antonio 2010, no pet.) (emphases added).

Appellant does not mention Reyes in his brief, nor does he acknowledge that

almost all of the fourteen Texas intermediate appellate courts have concluded that

5
proof of a prior assault conviction is an element of the offense of felony assault–

family violence.2 As noted by the State, there is a “minor split among the

2
See, e.g., Holoman v. State, No. 12-17-00364-CR, 2018 WL 5797241, at *3 (Tex.
App.—Tyler Nov. 5, 2018, pet. granted) (mem. op. on reh’g, not designated for
publication) (“We hold the prior conviction requirement for assault[–]family violence
is an element of felony assault[–]family violence under Section 22.01(a)(1)(A) and is
required to be proven at the guilt phase of trial.”); Davis v. State, 533 S.W.3d 498, 512–
13 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d) (noting that to establish
the offense of assault–family violence, “the State was required to prove that appellant
was “previously convicted of an [assault] . . . against a person whose relationship to or
association with the defendant is described by Section 71.0021(b), 71.003, or 71.005,
Family Code,” and thus the “State must necessarily prove the existence of a prior
conviction where, as here, it is an element of the charged offense”); Davis v. State,
No. 04-15-00602-CR, 2016 WL 4537927, at *2, *4 (Tex. App.—San Antonio Aug. 31,
2016, pet. ref’d) (mem. op., not designated for publication) (reaffirming Reyes and
stating that “the State had to prove [that appellant] had previously been convicted of
assault–family violence” and that “[i]f the State had not introduced evidence of the
prior conviction, [appellant] might have successfully argued . . . that the evidence was
insufficient to support his conviction for the felony offense [of assault–family
violence]”); Wingfield v. State, 481 S.W.3d 376, 379 (Tex. App.—Amarillo 2015, pet.
ref’d) (citing Reyes and stating that “[t]he prior conviction is an essential element of the
felony offense” of assault–family violence); Olivas v. State, No. 08-11-00081-CR, 2013
WL 1182208, at *3 (Tex. App.—El Paso Mar. 20, 2013, no pet.) (not designated for
publication) (“The plain language of Section 22.01(b)(2) is not ambiguous and clearly
requires proof of a prior conviction of family violence.”); Moore v. State, No. 10-09-
00386-CR, 2010 WL 3272398, at *3 (Tex. App.—Waco Aug. 18, 2010, pet. ref’d)
(mem. op., not designated for publication) (stating that “the prior convictions are
elements of the offense [of third-degree felony assault with bodily injury–family
member] as alleged in the indictment”); Staggs v. State, 314 S.W.3d 155, 160 (Tex.
App.—Houston [1st Dist.] 2010, no pet.) (stating that “when a prior conviction is an
element of an offense, as it is here [with the offense of assault–family violence], the
prior conviction must be alleged and charged and proved prior to conviction . . .
rather than being stipulated to as true in the punishment phase”); Vazquez v. State,
No. 03-08-00277-CR, 2009 WL 211685, at *1 n.1 (Tex. App.—Austin Jan. 27, 2009,
no pet.) (mem. op., not designated for publication) (utilizing the trial court’s and
parties’ assumption that the previous assault–family violence conviction was a
jurisdictional element that had to be proven by the State at guilt–innocence); State v.
Karamvellil, No. 05-08-00549-CR, 2008 WL 5147116, at *3 (Tex. App.—Dallas Dec. 9,

6
intermediate courts” because the Fourteenth Court has issued contradictory opinions

on the issue. Compare Rogers, 200 S.W.3d at 236 n.3 (noting that “when a prior

conviction is used to enhance the level of offense under both the current and former

versions of [S]ection 22.01, the State must prove the existence of the prior conviction

as an element of the offense in the guilt[–]innocence phase of trial”), with State v. Cagle,

77 S.W.3d 344, 346 nn. 1–2 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)

(stating that “the offense would be a misdemeanor without the enhancement” but

also stating that a prior assault is “a sentence enhancement, rather than an element of

the offense”). Yet, Cagle appears to be the outlier and does not track with the

Fourteenth Court of Appeals’s later opinion in Rogers.

2008, pet. ref’d) (mem. op., not designated for publication) (“Thus, a conviction for
third-degree felony assault cannot occur unless the prior conviction is proven[,] and it
must be proven at the guilt phase of the trial.”); Edison v. State, 253 S.W.3d 303, 305
(Tex. App.—Beaumont 2008, no pet.) (stating that “[t]he previous conviction for
assault against a family or household member must be shown at trial to elevate the
offense from a Class A misdemeanor to a third[-]degree felony” and that it disagreed
“that the prior conviction simply results in a punishment enhancement for a
misdemeanor offense”); Rogers v. State, 200 S.W.3d 233, 236 n.3 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d) (noting that under Section 22.01, the State must prove
the existence of the prior conviction as an element of the offense); Sheppard v. State, 5
S.W.3d 338, 340 (Tex. App.—Texarkana 1999, no pet.) (explaining that under Section
22.01, the fact of the prior conviction is an element of the offense). The preceding
list does not include every case from the intermediate courts on this issue because
many of the courts have issued multiple opinions describing Section 22.01’s prior-
conviction requirement as an element. Moreover, the Eastland Court of Appeals has
not specifically stated that proof of the prior conviction must be put on during guilt–
innocence, but the court intimated that concept through its analysis of whether the
State had proved up a prior conviction in Corrales v. State, No. 11-13-00180-CV, 2015
WL 3938100, at *1 (Tex. App.—Eastland June 25, 2015, no pet.) (mem. op., not
designated for publication).

7
 This court has not directly addressed the issue that is posed here.3 However,

after reviewing our sister courts’ decisions that are cited in footnote 2, we agree that

the prior-conviction requirement for assault–family violence is an element of felony

3
This court has previously only briefly commented on whether a prior
conviction in Section 22.01 is an element or an enhancement but has not addressed
the issue head on. See, e.g., Jones v. State, No. 02-18-00237-CR, 2019 WL 1574955, at
*1, *2 (Tex. App.—Fort Worth Apr. 11, 2019, no pet.) (mem. op., not designated for
publication) (referring to appellant’s conviction as “assault–family violence, enhanced
to a third-degree felony by [his] 1990 conviction for the family violence-related
murder of Yolanda Graves” and then stating that “[t]o support the enhanced
conviction, the State was required to prove beyond a reasonable doubt that [appellant]
had previously been convicted on August 24, 1990, . . . of murdering someone with
whom he had had a dating relationship”); Gomez v. State, No. 02-09-00086-CR, 2010
WL 1730832, at *1 (Tex. App.—Fort Worth Apr. 29, 2010, pet. ref’d) (mem. op., not
designated for publication) (describing appellant’s challenge to the sufficiency of the
evidence to support his conviction for “assault–family violence, elevated to a third-
degree felony because of a prior assault–family violence conviction” as a challenge to
the “sufficiency of the evidence of the jurisdictional enhancement. That is, [a]ppellant
contends that the State failed to prove that he had been convicted previously of
assault–family violence”); Williams v. State, 172 S.W.3d 730, 738 (Tex. App.—Fort
Worth 2005, pet. ref’d) (Dauphinot, J., dissenting) (“Prior convictions can elevate a
misdemeanor to a felony; for example, they are elements of the offense and, without
dispute, must be ple[aded] in the indictment in felony cases of DWI, theft, and
family[-]violence assault.” (footnotes omitted)); cf. Pearson v. State, No. 02-18-00360-
CR, 2020 WL 5241739, at *5 (Tex. App.—Fort Worth Sept. 3, 2020, pet. filed) (mem.
op., not designated for publication) (referencing Oliva v. State, 548 S.W.3d 518, 526–27
(Tex. Crim. App. 2018), and Holoman and holding that trial court did not err by
including the Section 22.011(f) instruction in the guilt–innocence charge rather than
charging it solely as a punishment issue); Calton v. State, 132 S.W.3d 29, 34 (Tex.
App.—Fort Worth 2004) (noting that “the structure of [S]ection 38.04(b)(2) is
consistent with other statutes in the Texas Penal Code, such as those defining . . .
assault,” that treat prior convictions as aggravating elements of an offense rather than
as sentencing or ‘enhancement’ factors” and holding that the prior conviction must be
proven at the guilt–innocence phase of a trial for the third-degree felony offense of
evading arrest or detention), aff’d, 176 S.W.3d 231 (Tex. Crim. App. 2005).

8
assault–family violence under Section 22.01(b)(2)(A) and is required to be proven at

the guilt–innocence phase of trial.

Appellant relies on Oliva, in which the Court of Criminal Appeals analyzed the

placement of the phrase “a person commits an offense” in the DWI statute in Texas

Penal Code Section 49.09(a) and concluded that because the phrase appeared in the

base offense 4 but did not “preface or incorporate the ‘prior conviction’ language

contained in § 49.09,” the legislature did not frame the DWI statute in a way that

included the prefacing incriminatory facts and the enhancement language together.

548 S.W.3d at 523. Appellant contends that the “if it is shown on the trial” language

in Section 22.01 indicates a punishment enhancement and argues that because that

section allegedly mirrors Section 49.09(a), we should follow Oliva and hold that the

prior-conviction portion of the statute is not an element but is “simply a punishment

enhancement.”

Oliva, however, distinguished between Section 49.09(a) and Section 49.09(b)

and specifically stated that

it is not always true that this phrase (“if it is shown on the trial of”)
causes a statute to prescribe a punishment issue. The felony DWI
provision, found in § 49.09(b), states that a DWI offense “is a felony of
the third degree if it is shown on the trial of the offense that the person
has previously been convicted” of two prior DWI offenses. Despite the
inclusion of the phrase “if it is shown on the trial of,” we have held the
provision to prescribe an element of the offense of felony DWI. . . .

See Tex. Penal Code Ann. § 49.04.
4

9
 . . . [T]he “jurisdictional” language [in § 49.09(b)] suggests that,
with respect to whether an element or a punishment issue is prescribed,
§ 49.09(a) and § 49.09(b) could reasonably be construed differently.

Id. at 528–29 (footnotes omitted).

The Tyler Court of Appeals has addressed Oliva’s application to the argument

that Appellant makes here, explaining that

[i]n Oliva, the Court held that Section 49.09(a), which prescribes that the
existence of a prior conviction elevates a second DWI offense from a
Class B misdemeanor to a Class A misdemeanor, is a punishment issue.
Id. at 534; see Tex. Penal Code Ann. § 49.09(a) . . . . The court held that
the DWI statutory scheme was ambiguous and relied on several textual
and nontextual factors in arriving at its holding. Oliva, 548 S.W.3d at
523–34. In so doing, the court noted that the language used in the single
prior conviction DWI statute is substantially identical to the felony DWI
statute, but the jurisdictional nature of the prior convictions for felony
DWI converted them from punishment issues to elements of the
offense. Specifically, the court stated[,]

Under this view, the jurisdictional nature of the two-prior
conviction provision for felony DWI converts what would
otherwise be a punishment issue into an element of the
offense. Because the single prior-conviction provision for
misdemeanor DWI is not jurisdictional, that conversion
does not occur, so the provision retains its character as
prescribing a punishment issue.

Id. at 533; see also Tex. Penal Code Ann. §§ 49.04[,] 49.09[.]

Holoman, 2018 WL 5797241, at *3. Holoman also addressed and disposed of

Appellant’s contention that “[a] prior conviction retains its original character as a

punishment issue when it is not used to vest jurisdiction with the court,” such as here

where the trial court obtained jurisdiction when Appellant was indicted for the felony

of assault–family violence by impeding breath or blood under Section 22.01(b)(2)(B).

10
See id. In Holoman, it was the State making the argument that Appellant raises in this

appeal:

[T]he State concedes that “in the usual case, a prior family violence
conviction is one of the ‘jurisdictional’ priors; it enhances what is
otherwise a Class A assault to a third-degree felony.” However, it argues
that because Appellant was charged with assault[–]family violence by
impeding breath or blood, a felony offense which vested the district
court with jurisdiction, the prior family violence conviction was not
jurisdictional and could properly be considered at the punishment phase
of trial. We reject this argument. It is axiomatic that the prior
conviction provision in Section 22.01(b)(2)(A) is either an element of the
offense of felony assault[–]family violence with a previous conviction[]
or serves to enhance the punishment of a misdemeanor assault[–]family
violence, not both. We hold the prior conviction requirement for
assault[–]family violence is an element of felony assault[–]family violence
under Section 22.01[(b)(2)](A) and is required to be proven at the guilt
phase of trial. See Oliva, 548 S.W.3d at 533.

Id. We agree with Holoman’s analysis and holding and conclude that because Section

22.01(b)(2)(A) is more akin to Section 49.09(b), a prior conviction is an element of

assault–family violence. We therefore need not delve further into Appellant’s

additional arguments that attempt to persuade this court that the prior-conviction

requirement in Section 22.01 is a punishment enhancement. See Tex. R. App. P. 47.1.

Accordingly, we overrule Appellant’s first issue.

IV. Appellant Failed to Demonstrate Actual Bias

In his second issue, Appellant argues that the trial court’s comments and

actions demonstrated bias and deprived him of his constitutional right to a fair trial.

Specifically, Appellant complains that the trial judge was rude and abrupt in ways that

betrayed personal bias toward Appellant and his counsel when the trial judge

11
 • interjected his opinion regarding why Appellant had chosen not to file an

application for probation but was pleading not true to the enhancement paragraph;

• tainted the venire during voir dire by pressuring a venire-member who

had been the victim of family violence to speak in front of the entire group, by

mentioning how jury selection operates in a death-penalty case, and by yelling at a

venire-member who had left the courtroom to use the restroom after previously

requesting permission and being told that a break would be given later;

• denied Appellant’s requests to refresh the complainant’s memory outside

the jury’s presence, thus forcing him to play recordings of his jail calls to her in front

of the jury;

• overruled Appellant’s objections to the State’s expert witness in front of

the jury;

• required the jury and counsel for both sides to sit in the courtroom and

wait for Appellant’s witnesses after Appellant notified the trial court that his witnesses

were running late; and

• allegedly rushed Appellant’s counsel as they went over the judgment

with Appellant, screamed at them, and threw documents in their faces. 5

5
For this last group of complained-of actions, Appellant cites to his motion to
recuse, which was filed after the trial had ended. Appellant’s motion to recuse
specifically states, “None of these instances are on the record.” Because we do not
have a record of these statements, we will not consider them in our analysis. See
generally Tex. R. App. P. 33.2 (“To complain on appeal about a matter that would not
otherwise appear in the record, a party must file a formal bill of exception.”).

12
 A. Preliminary Issue—Preservation

Appellant acknowledges that he did not object “to all comments or actions of

the trial court,” which generally would forfeit any resulting error, but argues that he

was not required to object at trial to present this issue on appeal because the trial

judge’s actions and comments amounted to fundamental error. See Castro v. State, No.

02-17-00196-CR, 2018 WL 1096064, at *2 (Tex. App.—Fort Worth Mar. 1, 2018, no

pet.) (mem. op., not designated for publication) (citing Tex. R. Evid. 103(e), and

Proenza v. State, 541 S.W.3d 786, 796 (Tex. Crim. App. 2017) (“[T]he question of error

preservation turns not upon the ‘circumstances under which [an alleged error] was

raised,’ but upon the ‘nature of the error itself.” (quoting Ex parte Heilman, 456 S.W.3d

159, 166 (Tex. Crim. App. 2015)))).

Thus, as noted in Castro,

our first inquiry must be whether the judge’s comments affected an
absolute right, which may be raised for the first time on appeal. See
Proenza, [541 S.W.3d at 796–97]; Aldrich v. State, 104 S.W.3d 890, 895
(Tex. Crim. App. 2003); see also Tex. R. Evid. 103(e). A trial judge’s
comment that cannot be viewed as fair and impartial is fundamental
error of constitutional dimension; therefore, a defendant does not have
to object at trial to raise this class of error on appeal. See Jasper v. State,
61 S.W.3d 413, 420 (Tex. Crim. App. 2001); Mumphrey v. State, 509
S.W.3d 565, 568 (Tex. App.—Texarkana 2016, pet. ref’d); Avilez v. State,
333 S.W.3d 661, 671–72 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref’d); see also Tex. R. Evid. 103(e).

Id. And just as in Castro, here the State does not assert that Appellant’s failure to

object at the time the trial judge made the challenged comments procedurally

13
defaulted any error.6 Id. (citing Darcy v. State, 488 S.W.3d 325, 327–28 (Tex. Crim.

App. 2016), which recognized that preservation is a systemic requirement that

appellate court must review on its own motion). Thus, we conclude that Appellant

was not required to object at trial to raise this complaint on appeal.

B. Law Applicable to Determining Bias

As set forth in Castro,

we look to the entire record to determine whether the trial judge’s
comments revealed such a degree of actual bias that he ceased to
function as a neutral and detached fact[]finder, violating Appellant’s
constitutional right to a fair trial. See Bracy v. Gramley, 520 U.S. 899, 904–
05 (1997); Avilez, 333 S.W.3d at 673–74; Moreno v. State, 900 S.W.2d 357,
359 (Tex. App.—Texarkana 1995, no pet.); see also McDaniel v. State,
No. 05-15-01086-CR, 2016 WL 7473902, at *4 (Tex. App.—Dallas Dec.
29, 2016, pet. ref’d) (mem. op., not designated for publication). But
absent a clear showing of actual bias, we presume that the trial court
acted impartially. See Tapia v. State, 462 S.W.3d 29, 44 (Tex. Crim. App.
2015).

Id. at *3. Moreover,

rulings alone almost never constitute a valid basis for a claim that a judge
is biased or partial. Liteky v. U.S., 510 U.S. 540, 555[, 114 S. Ct. 1147,
1157] (1994). Only in the rarest circumstances can a judicial ruling
evidence the degree of favoritism or antagonism required to demonstrate
judicial bias. Id. A judge’s ordinary efforts at courtroom administration
remain immune. Id. at 556.

6
The State does assert, however, that Appellant has not raised on appeal the
applicability of the disqualification and recusal grounds found in the Texas
Constitution, the Texas Code of Criminal Procedure, and the Texas Rules of Civil
Procedure. Because Appellant did not raise these provisions on appeal, we likewise
will not address them. See Tex. R. App. P. 38.1(i), 47.1.

14
Bradford v. State, No. 05-18-00862-CR, 2019 WL 2498684, at *2 (Tex. App.—Dallas

June 17, 2019, pet. ref’d) (mem. op., not designated for publication).

C. Analysis

Having reviewed the entire record, we conclude that the complained-of actions

and comments that appear in the record do not reveal such a degree of actual bias that

the trial judge ceased to function as a neutral and detached factfinder. The initial

complained-of comment—that the trial judge interjected his opinion regarding why

Appellant had chosen not to file an application for probation but was pleading not

true to the enhancement paragraph—was made before the venire was brought into

the courtroom and was made in the context of discussing the scope of voir dire.

After that comment but still before the venire was seated, the trial court engaged in a

lengthy and seemingly amicable discussion with the parties about legal issues involved

in the case and made a ruling favorable to Appellant by granting his request to shuffle

the venire. Regarding the trial court’s allegedly tainting the venire by pressuring a

venire member to speak in front of the jury about family violence and by yelling at a

venire member who had left the courtroom to use the restroom, the record reflects

that neither of those venire-members became jurors.

Although the trial court denied Appellant’s request to refresh a witness’s

memory by playing a jail call outside the jury’s presence, the record reflects that the

trial judge sustained numerous other objections made by defense counsel. Regarding

the trial court’s ruling on Appellant’s objection to the State’s expert in front of the

15
jury, the record demonstrates that Appellant did not request a ruling from the trial

court during the hearing that was held outside the jury’s presence. Concerning the

remaining complained-of remarks and actions, we agree that the trial court expressed

some impatience, dissatisfaction, annoyance, and perhaps even anger, but the record

falls short of demonstrating bias or partiality. See Liteky, 510 U.S. at 555–56, 114 S.

Ct. at 1157; see also Gonzales v. State, No. 03-12-00620-CR, 2014 WL 6901181, at *6

(Tex. App.—Austin Dec. 4, 2014, pet. ref’d) (mem. op., not designated for

publication) (concluding that trial court’s conduct—in the form of appellant’s cited

twenty-plus “errors” and the trial court’s verbal remarks made throughout trial—did

not rise to the level displaying “deep-seated favoritism or antagonism”).7

Accordingly, we overrule Appellant’s second issue.

Moreover, even if we assumed that the trial court’s remarks and actions
7

somehow rose to the level of judicial bias, we would conclude that any error was
harmless. See Proenza, 541 S.W.3d at 801. As to the trial court’s unfavorable rulings
on Appellant’s objections, the trial court’s charge instructed the jury as follows:

At times during the trial the Court has been called upon to determine the
admissibility of certain offered evidence. You are not to draw any
inferences from the Court’s rulings. Whether offered evidence is
admissible is purely a question of law. In admitting evidence to which
an objection is made, the Court does not determine what weight should
be given such evidence or consider the believability of the witnesses. As
to any offered evidence that the Court has rejected, you must not
consider the same. As to any question to which an objection was
sustained, you must not speculate as to what the answer might have been
or as to the reason for the objection.

As for the trial court’s statements in the jury’s presence, the trial court’s charge
instructed the jury as follows:

16
 V. Conclusion

Having overruled Appellant’s two issues, we affirm the trial court’s judgment.

/s/ Dabney Bassel

Dabney Bassel
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: December 3, 2020

Do not allow anything that the Court has said or done during the trial to
influence you to vote one way or the other. Do not allow yourselves to
be influenced whatsoever by what you think the opinion of the Court
might be. The Court has not intended to express any opinion about the
facts in this case, and if you have observed anything which you have or
may interpret as the Court’s opinion about the facts in this case, you
must wholly disregard it.

We generally presume the jury follows the trial court’s instructions. Beltran De La
Torre v. State, 583 S.W.3d 613, 620 (Tex. Crim. App. 2019). Moreover, the jury, which
determined guilt–innocence and assessed punishment, was not influenced by any
presumed bias displayed by the trial court as demonstrated by the fact that the jury
found Appellant not guilty of assault–family violence by impeding breath, found him
guilty only of the lesser-included offense of assault–family violence with a prior
family-violence conviction, and assessed his punishment in the middle of the
punishment range even after hearing evidence of his prior criminal history that
included failure to identify/false identity, robbery, credit card abuse, and theft.

17