                         NUMBER 13-17-00601-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


DAMIEN EARL CRAYTON,                                                      Appellant,

                                              v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 377th District Court
                         of Victoria County, Texas.


                       MEMORANDUM OPINION

            Before Justices Contreras, Longoria, and Hinojosa
                Memorandum Opinion by Justice Hinojosa

      Appellant Damien Earl Crayton appeals from a judgment revoking his community

supervision and sentencing him to five-years’ confinement for the offense of assault

causing bodily injury to a family member, a third-degree felony. See TEX. PENAL CODE

ANN. § 22.01(b)(2) (West, Westlaw through 2017 1st C.S.).        In one issue, Crayton

contends that he is entitled to a new hearing because the trial court was biased against
him. We affirm.

                                             I. BACKGROUND

        On September 6, 2016, Crayton pled guilty to an alleged offense of assault causing

bodily injury to a family member. See id. The trial court adjudicated Crayton guilty,

assessed a $1,000 fine, sentenced him to five-years’ confinement, suspended the

sentence, and placed Crayton on community supervision for three years.                                    The

community supervision order included several terms and conditions, including that

Crayton not commit any offense against the laws of Texas.

        On September 21, 2017, the State filed a motion to revoke community supervision,

alleging that Crayton had violated the aforementioned condition by committing the offense

of indecency with a child. See id. § 21.11(a) (West, Westlaw through 2017 1st C.S.).

        M.P., who was the mother of the child against whom Crayton had allegedly

committed the indecent act, testified at the revocation hearing. 1 M.P. testified that she

and Crayton were in a romantic relationship for the preceding two years. On direct-

examination by the State, M.P. recalled asking her daughter if Crayton touched her

sexually, to which M.P.’s daughter answered, “Yes.” On cross-examination by Crayton’s

counsel, she testified that she did not end her relationship with Crayton after hearing her

daughter’s accusation and that she still loved him. Crayton’s counsel then asked M.P.

whether she had sexual relations with Crayton after the incident. The court interrupted




         1 In our discretion, we will use an alias in lieu of the mother’s name. See TEX. R. APP. P. 9.8 cmt.

(providing that the rule governing protection of a minor’s identity in parental-rights termination and juvenile
court cases does not limit an appellate court’s authority to disguise parties’ identities in appropriate
circumstances in other cases).

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that line of questioning by stating, “It’s irrelevant.           Next question.”       Crayton did not

complain of the court’s ruling and began a different line of inquiry. On appeal, Crayton

argues that the question exposed that M.P. did not believe her daughter’s accusation.

        The trial court found true all allegations in the State’s motion to revoke Crayton’s

community supervision, revoked his community supervision, and sentenced him to

five-years’ confinement. This appeal followed.

                                           II. JUDICIAL BIAS

        Crayton contends that the trial judge violated his minimum rights to due process

by making an objection for the State. 2 Specifically, he challenges the court raising an

objection to his counsel’s question regarding his sexual relationship with M.P. Crayton

argues that by raising this objection sua sponte, rather than requiring the State to make

its own objection, the trial court violated his rights to a detached and impartial hearing

body as required under due process.

A.      Applicable Law

        The Due Process Clause guarantees a defendant a fair trial in a fair tribunal before

a judge with no actual bias against the defendant or interest in the outcome of his

particular case. Bracy v. Gramley, 520 U.S. 899, 904–05 (1997). The Due Process

Clause has been implemented by objective standards that do not require proof of actual

bias. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009). In pursuit of this

end, various situations have been identified in which experience teaches that the


          2 Crayton did not object to the trial court’s alleged partiality below. However, a complaint of a

partial trial judge is “structural error” which may be raised for the first time on appeal. See Johnson v.
State, 169 S.W.3d 223, 235 (Tex. Crim. App. 2005) (citing Johnson v. United States, 520 U.S. 461, 468–
469 (1997)).
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probability of actual bias on the part of the judge or decisionmaker is too high to be

constitutionally tolerable.   Withrow v. Larkin, 421 U.S. 35, 47 (1975).       A judge is

constitutionally unacceptable when: (1) the judge has a direct personal, substantial, and

pecuniary interest in the outcome of the case; (2) the judge has been the target of

personal abuse or criticism from the party before him; or (3) the judge has the dual role

of investigating and adjudicating disputes and complaints. Celis v. State, 354 S.W.3d 7,

21 (Tex. App.—Corpus Christi 2011), aff’d, 416 S.W.3d 419 (Tex. Crim. App. 2013).

       Texas Rule of Evidence 611 allows a court to exercise reasonable control over the

examination of witnesses to prevent wasting time and to protect the witness from

harassment and undue embarrassment. TEX. R. EVID. 611(a)(2)–(3). A defendant’s

right to present relevant evidence is not unlimited, but rather is subject to reasonable

restrictions. United States v. Scheffer, 523 U.S. 303, 308 (1998). As a result, state and

federal rulemakers have broad latitude under the Constitution to establish rules excluding

evidence from criminal trials.   Id.   Such rules do not abridge an accused’s right to

present a defense so long as they are not “arbitrary” or “disproportionate to the purposes

they are designed to serve.” Id. (citing Rock v. Arkansas, 483 U.S. 44, 55 (1988)). Rule

611 is designed to give courts authority to exercise reasonable control over the mode and

order of examining witnesses so as to avoid wasting time and to protect the witness from

harassment or undue embarrassment.         Trial courts may place reasonable limits on

cross-examination based on such concerns as harassment, prejudice, the witness’s

safety, or interrogation that is repetitive or only marginally relevant. Matchett v. State,

941 S.W.2d 922, 940 (Tex. Crim. App. 1996) (en banc).


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B.      Discussion

        We note that Crayton has not alleged that the trial court judge was constitutionally

unacceptable because the judge had: (1) a direct personal, substantial, and pecuniary

interest in the outcome of the case; (2) been the target of personal abuse or criticism from

the party before him; or (3) the dual role of investigating and adjudicating disputes and

complaints. Celis, 354 S.W.3d at 21. Thus, his complaints do not raise the kind of

fundamental procedural unfairness that the Supreme Court has held to be an

unconstitutional violation of due process rights. 3

        Crayton instead bases his argument solely on the allegation that the court’s

interruption of his cross-examination of M.P. indicates that the judge was not “neutral and

detached.” This complaint implicates matters within the trial court’s discretion afforded

to it by rule 611, i.e., the regulation of testimony, processing of evidence, and general

conduct of trial. See Avilez v. State, 333 S.W.3d 661, 674 (Tex. App.—Houston [1st

Dist.] 2010, pet. ref’d).

        We have reviewed the entire record. Throughout the revocation hearing, the trial

court exercised the kind of control contemplated by rule 611. In this case, Crayton had

already established that M.P. was still in love with him and maintained a romantic

relationship with him even after he had inappropriately touched her daughter. Further

evidence that M.P. continued to have sexual relations with Crayton would not materially



        3  Cf. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 816–18, 822, (1986) (pecuniary interest); Tumey
v. Ohio, 273 U.S. 510, 532, (1927) (same); In re Murchison, 349 U.S. 133, 137 (1955) (acting as
prosecutor); Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971) (personal embroilment with defendant or
counsel); Earley v. State, 855 S.W.2d 260, 262–63 (Tex. App.—Corpus Christi 1993, pet. dism’d)
(prejudging case); Abdygapparova v. State, 243 S.W.3d 191, 206–09 (Tex. App.—San Antonio 2007, pet.
ref’d) (favoring prosecution).
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further Crayton’s defense and could have resulted in harassment or undue

embarrassment of the witness. Therefore, the trial court’s sua sponte objection fell within

the purview of rule 611, and the court’s action did not violate Crayton’s due process

protections.

       Finally, we note that most matters related to judicial conduct within the broad

confines of discretion traditionally afforded to a trial court do not usually implicate

constitutional due process protections. See Avilez, 333 S.W.3d at 675 (citing Bracy, 520

U.S. at 904). Indeed, “judicial rulings alone almost never constitute a valid basis for a

bias or partiality motion,” and a trial court’s opinion would not constitute bias unless it

derives from “an extrajudicial source [or] reveal[s] such a high degree of favoritism or

antagonism as to make fair judgment impossible.” Liteky v. United States, 510 U.S. 540,

555–56 (1994).

       We conclude that the record does not demonstrate bias or a violation of Crayton’s

due process rights. We overrule Crayton’s sole issue.

                                     III. CONCLUSION

       We affirm the judgment of the trial court.

                                                               LETICIA HINOJOSA
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of June, 2018.




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