                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-16-00016-CR



        BOBBY DON MUMPHREY, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 124th District Court
                Gregg County, Texas
              Trial Court No. 44985-B




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Burgess
                                                  OPINION
            Bobby Don Mumphrey was convicted by a Gregg County jury of driving while intoxicated

(DWI), third or more. During the punishment phase of the trial, the State introduced three of

Mumphrey’s prior convictions, including one for criminally negligent homicide, a charge to which

he pled guilty after the State dismissed an indictment for intoxication manslaughter. The jury

assessed Mumphrey’s punishment at twenty years’ imprisonment and a fine of $10,000.00, and

the trial court sentenced Mumphrey accordingly.

            On appeal, Mumphrey argues that he was denied due process of law because the trial judge

was the prosecuting attorney on his previously dismissed indictment for intoxication

manslaughter.1

            We overrule Mumphrey’s points of error and affirm the trial court’s judgment.

I.          Factual and Procedural Background

            Trooper Quinton Rose stopped Mumphrey for failing to dim his headlights and for having

a defective license plate light. See TEX. TRANSP. CODE ANN. §§ 547.322(f), 547.333(c)(1) (West

2011). Mumphrey smelled of alcohol, so Rose had him perform field sobriety tests. When he

failed the tests, Mumphrey was arrested on suspicion of DWI. Subsequent blood tests showed

Mumphrey’s blood-alcohol content was 0.208%, almost triple the legal limit. Because he had two

prior convictions for DWI, he was charged with DWI, third or more, a third degree felony. After

a jury trial, he was found guilty.




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    In three points of error, Mumphrey argues that this violation of due process was both fundamental and structural.

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       During the punishment phase of the trial, the State introduced, and Mumphrey pled true to,

Mumphrey’s prior conviction for a burglary charge that enhanced the punishment range to between

two and twenty years in prison. As a part of its case on punishment, the State also introduced and

proved through certified copies and thumbprint evidence, a prior conviction for criminally

negligent homicide. That conviction stemmed from an incident in which Mumphrey killed two

female pedestrians by driving a vehicle in a negligent manner, by failing to keep a proper lookout,

or by driving on an improved shoulder. As a part of a plea bargain, Mumphrey pled guilty to the

criminally negligent homicide charge and received a sentence of eighteen months in state jail.

       The State, without objection, offered testimony that the negligent homicide charge had

originally been intoxication manslaughter, which carried a punishment range of twenty-five to

ninety-nine years or life, but that, as a part of a plea bargain, it was dismissed and re-indicted as

criminally negligent homicide, a state jail felony that carried a maximum punishment of only two

years. Mumphrey testified that the intoxication manslaughter case was dismissed and that the

judge presiding over the present case, the Honorable Alphonso Charles, was the prosecuting

attorney in that case.

       During the trial on punishment, three witnesses testified on Mumphrey’s behalf, and

against the advice of his attorney, Mumphrey also testified on his own behalf. He admitted to

being guilty of the burglary and possession crimes, but he denied being guilty of criminally

negligent homicide, asserting that he was pressured to plead guilty in that case. The State

questioned Mumphrey about the facts of the offense, including the speed and condition of his car

and the volume of alcohol he had consumed that night. Mumphrey specifically denied striking

and killing the women, arguing that he had drunk one beer that night, that his vehicle was not
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severely dented, and that a different vehicle hit the women. He claimed that, as a result of the

collision, one of the bodies was thrown onto his car. He argued that he had been framed for the

offense, and when the State asked whether he knew that one of the women’s dismembered arms

was found in his car, he claimed, “It was put inside my car.”

       The jury found the enhancement allegation to be true, assessed the maximum punishment

of twenty years in prison, and assessed a fine of $10,000.00; the trial court then dismissed the jury

and sentenced Mumphrey as per the jury’s assessment. Mumphrey filed this appeal, arguing that

the trial court was biased against him and that, by presiding over his case, the trial court committed

fundamental error by denying him due process of law.

II.    There Was No Violation of Mumphrey’s Right to Due Process

       Mumphrey argues that there was a likelihood of bias because the trial judge was the

prosecuting attorney at the time he was charged with intoxication manslaughter.

       As a general rule, in order to preserve a complaint for review on appeal, the claimed error

must have been presented in the trial court, thereby providing the trial court the opportunity to

correct any error during the course of the trial. See TEX. R. APP. P. 33.1(a). Mumphrey did not

move to recuse the trial court at any time and failed to raise this issue in a motion for new trial.

However, errors, such as the claims of bias Mumphrey argues here, that are fundamental or

structural in nature may be raised for the first time on appeal. See Arizona v. Fulminante, 499 U.S.

279, 309–10 (1991); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004); Blue v. State,

41 S.W.3d 129, 136–37 (Tex. Crim. App. 2000) (plurality op.). Because Mumphrey contends that

the error in this case is fundamental or structural, we must examine the merits of his argument in


                                                  4
order to determine whether there was error and whether that error amounted to a fundamental or

structural failure. See Mendez, 138 S.W.3d at 341; Blue, 41 S.W.3d at 136–37.

       After the jury’s punishment determination was announced and accepted, the trial court

dismissed the jury. The court then sentenced Mumphrey in accordance with the jury’s assessment,

but the court went on to make a final statement:

               THE COURT: . . . . Mr. Mumphrey, I rarely say anything more than this to
       a defendant who’s been convicted. But I was the prosecutor, until I became a judge,
       on that other case.

               THE DEFENDANT: Yes, sir.

               THE COURT: I know full well what the facts are.

               THE DEFENDANT: Yes, sir.

               THE COURT: I know that you were basically and should have been found
       guilty of intoxication manslaughter.

               THE DEFENDANT: No, sir.

               THE COURT: Do not argue with me now.
                        Mr. Mumphrey, you are a lucky man. You are very lucky that this
       jury didn’t get to put your punishment from 25 to 99 years or life. I think you know
       how angry this jury is with you.
                        Based on your testimony, based on your record, the safest place for
       Gregg County citizens to be with you right now is for you to be in prison.

Mumphrey argues that the judge’s comments regarding the intoxication manslaughter case show

that, because the judge represented the State in the intoxication manslaughter case, he could not

be impartial in presiding over this case, thereby violating his fundamental and structural rights.

       In support of his argument, Mumphrey relies on Williams v. Pennsylvania, where a

Pennsylvania Supreme Court justice, who as district attorney had given approval to seek the death

penalty against Williams, subsequently denied Williams’ motion to recuse him and, instead,
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participated in a decision to reinstate Williams’ death sentence after a stay of execution had been

granted due to Brady2 violations. Williams v. Pennsylvania, 136 S.Ct. 1899, 1903 (2016). The

United States Supreme Court found that the judge’s unconstitutional failure to recuse himself from

the same case in which he “had significant, personal involvement as a prosecutor” violated

Williams’ right to due process of law and constituted structural error. Id. at 1910.

           We find the holding of Williams inapplicable here. Unlike Williams, Mumphrey never

moved to recuse the trial judge even though he was aware of the judge’s prior participation as

prosecuting attorney in the negligent homicide case. See id. at 1903–05. The judge in Williams

had “significant, personal involvement” as both judge and prosecutor in the same case, whereas

the judge here had no prior involvement whatsoever in this DWI case and was only the prosecutor

in a case introduced on the question of punishment. See id. at 1910. Furthermore, the Supreme

Court noted that the judge at issue in Williams was clearly disqualified under the Pennsylvania

Code of Judicial Conduct. In direct contrast, under Texas law, a trial judge is not disqualified

merely because he previously represented the State in a prior case against the defendant, and the

same is true even if the conviction in which the trial judge participated as prosecutor is later used

for punishment purposes. See Brown v. State, 108 S.W.3d 904, 907–08 (Tex. App.—Texarkana

2003, pet. ref’d).

           More significantly, in this case, the jury decided the issues of guilt/innocence and

punishment, not the trial court, whereas the Pennsylvania Supreme Court justice in Williams made

the final decision on whether to seek the death penalty. Finally, Williams was a death penalty case


2
    Brady v. Maryland, 373 U.S. 83 (1963).

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and, as the Supreme Court has held, “[T]he penalty of death is qualitatively different from a

sentence of imprisonment, however long[, and] . . . [b]ecause of that qualitative difference, there

is a corresponding difference in the need for reliability in the determination that death is the

appropriate punishment in a specific cause.” Woodson v. N. Carolina, 428 U.S. 280, 305 (1976).

Based on the foregoing, we find the facts of Williams distinguishable from those of the present

case and the holding of Williams inapplicable.

       After examining the record, we find no clear showing of bias. Here, Mumphrey pled true

to the enhancement allegation on punishment, the jury assessed Mumphrey’s sentence, and the

trial judge merely sentenced him in accordance with the jury’s decision. The comments came after

the jury’s determination of punishment and after the jury was dismissed. Given that the jury gave

him the maximum sentence in this case, the trial court simply reminded Mumphrey how lucky he

was not to have faced the higher punishment range of twenty-five to ninety-nine years or life,

which the jury could have considered had Mumphrey’s record showed a conviction for intoxication

manslaughter instead of the state jail felony of criminally negligent homicide. Though the

comments could be loosely interpreted as lamenting the fact that a greater sentence could not be

imposed, we will not assume the worst and presume error when there are two possible

interpretations that can be given to the utterances of a trial judge. State v. Ross, 32 S.W.3d 853,

857 (Tex. Crim. App. 2000); see Earley v. State, 855 S.W.2d 260, 262–63 (Tex. App.—Corpus

Christi 1993, pet. dism’d) (trial judge could be disqualified for wishing higher sentence could be

imposed). Therefore, having found no error, we overrule Mumphrey’s points of error.




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      We affirm the trial court’s judgment.



                                              Ralph K. Burgess
                                              Justice

Date Submitted:      October 6, 2016
Date Decided:        December 28, 2016

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