AFFIRM; and Opinion Filed November 4, 2015.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-01412-CR

                               BENITO SILVERIO, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 203rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1215745-P

                             MEMORANDUM OPINION
               Before Chief Justice Wright, Justice Fillmore, and Justice Stoddart
                                  Opinion by Justice Fillmore

       Benita Silverio pleaded guilty to the offense of burglary of a habitation in exchange for

the State’s recommendation of a five-year to thirty-year sentence. The trial court assessed

punishment of twenty-five years’ confinement. In a single issue, Silverio contends we must

reverse the trial court’s judgment and remand for a new punishment hearing because the trial

court failed to remain a neutral factfinder and cross-examined him in violation of his right to

procedural due process under the United States Constitution. We conclude the record does not

demonstrate the unique circumstances that would allow us to review Silverio’s issue in the

absence of a contemporaneous trial court objection and, therefore, we resolve Silverio’s issue

against him and affirm the trial court’s judgment.
          Prior to his trial, Silverio testified at the trial of Jose Alfaro on a charge arising out of the

burglary for which Silverio was charged. The trial judge who presided over Alfaro’s trial

presided over Silverio’s open plea of guilty. Because Silverio “helped the State with the trial of

Jose Alfaro,” the State agreed to recommend a sentence for Silverio in the range of five to thirty

years’ confinement. Silverio complains that, at the conclusion of his testimony during the plea

hearing, the trial judge questioned him about his testimony in Alfaro’s trial, criminal history, and

plans after he is released from prison, and the trial judge cautioned him to “be honest with [her]

because [he] had nothing to lose,” and commented that a “real man would not have gone over

that night and done this,” and the “right thing to do is whatever God would have done, and the

right thing to do would not have been to do that.”

          In a single issue, Silverio asserts he was denied his constitutional right to due process of

law under the United States Constitution when the trial judge abandoned her role as a neutral

factfinder and cross-examined him.                       According to Silverio, the trial judge engaged in a

discussion with him that was subsequently used to justify the sentence she imposed. Silverio

acknowledges he failed to object to any of the trial judge’s questions or comments, but contends

the trial judge’s questions and comments indicate the trial court was not fair and impartial or was

acting as an adversary, thus constituting “fundamental and structural” 1 error to which no

objection was required in order to preserve error for appellate review. After reviewing the record

and the law, we cannot agree.

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

court level. See TEX. R. APP. P. 33.1; Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App.

2013); Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds


     1
       See Mendez v. State, 138 S.W.3d 334, 338 (Tex. Crim. App. 2004) (“Structural errors (those which involve fundamental constitutional
systemic requirements) are those which defy analysis by harmless error standards.”).



                                                                  –2–
by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).                                              Even claims involving

constitutional error, including claims that due process rights have been violated, may be waived

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

789 S.W.2d 918, 924 (Tex. Crim. App. 1990). 2 This general rule applies to complaints regarding

improper judicial comments, except when the judicial comments rise to a level of fundamental

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

           In Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), overruled on other grounds

by Cain v. Smith, 947 S.W.2d 262, 264 (Tex. Crim. 1997), the court of criminal appeals

identified three categories of rights belonging to litigants: (1) absolute requirements and

prohibitions; (2) rights of litigants which must be implemented by the system unless expressly

waived; and (3) rights of litigations which are to be implemented upon request. 851 S.W.2d at

279. Silverio argues the facts of this case fall within the first of those categories of rights. That

category concerns “absolute requirements and prohibitions” or “systemic” rights “which are

essentially independent of the litigant’s wishes.” Sanchez v. State, 120 S.W.3d 359, 366 (Tex.

Crim. App. 2003); Marin, 851 S.W.2d at 278. These absolute or fundamental rights are not

subject to the preservation requirements of rule of appellate procedure 33.1. See Sanchez, 120

S.W.2d at 366. We need not determine whether a contemporaneous objection was required at

Silverio’s plea hearing in order to preserve his due process complaint, because, after reviewing

the record, we do not find the unique circumstances that would allow us to review Silverio’s

issue in the absence of a contemporaneous objection to the trial court. See Brumit v. State, 206

S.W.3d 639, 644-45 (Tex. Crim. App. 2006) (stating it need not decide whether an objection is




     2
        Absent fundamental error, “a due process claim, like many others however, is not preserved for review on appeal unless it was raised at
trial.” Garrett v. State, No. 05-13-00883-CR, 2015 WL 4751218, at *3 (Tex. App.—Dallas Aug. 12, 2015, pet. filed) (mem. op., not designated
for publication).



                                                                    –3–
required to preserve error of this nature and instead resolving issue on basis that record did not

reflect partiality of trial court).

        The Due Process Clause of the Fourteenth Amendment of the United States Constitution

provides that no State may “deprive any person of life, liberty, or property, without due process

of law.” U.S. CONST. amend. XIV. The touchstone of due process is fundamental fairness.

Euler v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007); see also Gagnon v. Scarpelli, 411

U.S. 778, 790 (1973). Due process requires a neutral and detached judicial officer. Gagnon, 411

U.S. at 785-86; Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014); Brumit, 206

S.W.3d at 645. The trial court should always act as a neutral arbiter between the advocates.

Brown v. State, 122 S.W.3d 794, 797 (Tex. Crim. App. 2003); Johnson v. State, 452 S.W.3d 398,

405 (Tex. App.—Amarillo 2014, pet. ref’d). But, “[a]bsent a clear showing of bias, a trial

court’s actions will be presumed to have been correct.” Brumit, 206 S.W.3d at 645.

        To reverse a judgment based on improper conduct by the trial court, we must conclude

the judicial impropriety occurred and prejudice probably resulted to the complaining party.

Johnson, 452 S.W.3d at 405; Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.—Houston

[14th Dist.] 2007, pet. ref’d). Our review encompasses the entire record. Dockstader, 233

S.W.3d at 108. Judicial conduct that is critical or disapproving of, or even hostile to, counsel,

the parties, or their cases, ordinarily does not support a bias or partiality challenge.          Id.

“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion”;

however, judicial remarks during the course of a trial will support a bias or partiality challenge if

“they display a deep-seated favoritism or antagonism that would make fair judgment

impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994); Luu v. State, 440 S.W.3d 123,

129 (Tex. App—Houston [14th Dist.] 2013, no pet.).




                                                –4–
          In Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality op.), the court of

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

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

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

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

persuasive value they might have. Id. at 101. The trial judge’s comments in Blue concerned the

defendant’s plea bargain negotiations and vitiated the defendant’s presumption of innocence in

front of the venire, adversely affecting his rights to a fair trial. We conclude Blue is not

persuasive here, where there was no jury to taint and Silverio’s right to be presumed innocent

was not an issue in light of his plea of guilty . 3

           Although Silverio argues the harmful nature of the trial court’s conduct constitutes

fundamental error, he has not cited any case finding fundamental error involving questions or

comments similar to those contained in the record before us. The trial court’s questions and

comments in this case did not display a “deep-seated” antagonism that would make a fair

judgment impossible. Liteky, 510 U.S. at 555; Luu, 440 S.W. 3d at 129. In other words, on this

record, the trial court did not become so entangled in the role of an advocate that it lost its ability

to remain neutral and detached.

          Because the record does not demonstrate the unique circumstances that would allow us to

review Silverio’s issue in the absence of a contemporaneous trial court objection, we conclude he

has failed to preserve his due process complaint for our review. We resolve his sole issue against

him.




     3
       See Gayton v. State, Nos. 05-14-01315-CR & 05-14-01316-CR, 2015 WL 4600794, at *4-5 (Tex. App.—Dallas July 31, 2015, no pet.)
(mem. op., not designated for publication); Johnson v. State, Nos. 05-14-00791-CR, 05-14-00792-CR, & 05-14-00793-CR, 2015 WL 4600472, at
*2 (Tex. App.—Dallas July 31, 2015, pet. filed) (mem. op., not designated for publication).



                                                                 –5–
       Accordingly, we affirm the trial court’s judgment.




                                                    /Robert M. Fillmore/
                                                    ROBERT M. FILLMORE
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

141412F.U05




                                              –6–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

BENITO SILVERIO, Appellant                         On Appeal from the 203rd Judicial District
                                                   Court, Dallas County, Texas,
No. 05-14-01412-CR        V.                       Trial Court Cause No. F-1215745-P.
                                                   Opinion delivered by Justice Fillmore, Chief
THE STATE OF TEXAS, Appellee                       Justice Wright and Justice Stoddart
                                                   participating.

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


Judgment entered this 4th day of November, 2015.




                                             –7–
