                                                                              ACCEPTED
                                                                           06-15-00110-cr
                                                               SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                   10/19/2015 10:10:53 AM
                                                                         DEBBIE AUTREY
                                                                                   CLERK

                 NO. 06 – 15 – 00110– CR

                                                         FILED IN
                                                  6th COURT OF APPEALS
     IN THE SIXTH DISTRICT COURT OF          APPEALSTEXARKANA, TEXAS
                TEXARKANA, TEXAS                 10/19/2015 10:10:53 AM
                                                      DEBBIE AUTREY
                                                          Clerk

               DEREK CLINTON WARD


                              Appellant,

                             v.

                 THE STATE OF TEXAS

                                  Appellee


On appeal from the 124TH District Court, Gregg County, Texas
               Trial Court Case No. 42,433-B


           BRIEF OF THE STATE OF TEXAS



                    CARL DORROUGH
                    GREGG COUNTY DISTRICT ATTORNEY

                          Zan Colson Brown
                          Texas Bar No. 03205900
                          Assistant District Attorney
                          Gregg County, Texas
                          101 East Methvin St., Suite 333
                          Longview, Texas 75601
                          Telephone: (903) 236–8440
                          Facsimile: (903) 236–3701
                          Zan.Brown@!co.gregg.tx.us
                                      TABLE OF CONTENTS

INDEX OF AUTHORITIES ...................................................................................2

STATEMENT OF FACTS ......................................................................................1

SUMMARY OF THE ARGUMENT .....................................................................3

ARGUMENT ............................................................................................................3
1)       The Appellant failed to preserve error and no fundamental error
         was committed. ................................................................................................3
2)       The judge’s comments were not improper and he maintained
         his objectivity...................................................................................................5
         a) Standard of Review: actual impropriety, probable prejudice......................5
         b) The trial judge did not become an advocate for the State. ..........................6
         c) The judge did not lose his objectivity. ........................................................7

CONCLUSION AND PRAYER .............................................................................8

CERTIFICATE OF SERVICE ..............................................................................9

CERTIFICATE OF COMPLIANCE ..................................................................10




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                          INDEX OF AUTHORITIES

State Cases

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (opinion on
rehearing)…………………………………………………………...…………5

Blue v. State, 41 S.W.3d, 129, 132 (Tex. Crim. App. 2000)……….4

Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. [Panel Op.]
1978)…………………………………………………….……………………..…..6

Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App. –Houston [14th Dist.] 2007,
pet. ref’d) …………….…………………………………………………….….5

Hookie v. State, 136 S.W. 3d, 671 (Tex. App. –Texarkana 2004, no
pet.)………………………………….………………………………..…4

Jackson v. State, 989 S.W.3d 845 (Tex. App.—Texarkana 1999,
 no pet.)………………………………………………………………………….….4

Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001)………...4, 6

Johnson v. State, 452 S.W.3d 398, 405 (Tex. App. Amarillo, 2014, pet ref’d.)
……………………………………..………………………….………5

Moreno v. State, 900 S.W.2d 357, 359 (Tex. App. Texarkana
1995)………………………………………………………………………….4,5,6,8




                                        2
                             STATEMENT OF FACTS

      Derek Clinton Ward was charged, on March 28, 2013, with State Jail felony

theft, an offense alleged to have occurred on or about September 19, 2012. See

indictment, CR 4. The property allegedly stolen was a welding machine valued at

more than $1,500 and less than $20,000. Id. The victim of the theft was David

Newberry, who had not consented to the appropriation. Id.

      Ward worked for Newberry. 5 RR 6, 7 Newberry accused Ward of abusing

credit card privileges, and withheld Ward’s pay. 5 RR 7. 8. Ward confessed he

took Newberry’s welding machine in retaliation for that withholding. 5 RR 8, 21.

      Ward agreed to plead guilty, and the State promised to agree to probation if

Ward could come up with the restitution on the day of sentencing, May 21, 2015. 5

RR 26. If he did not bring in the full restitution amount, he knew that it was

possible that he would be doing prison time. 5 RR 26. This agreement was reached

on April 9, 2015. 5 RR 26.

       Two days later, on April 11, 2015, Ward was laid off from his job in the oil

field. 5 RR28.    This was about a month and a half before he appeared for

sentencing on May 21. 5 RR 26. During that month and a half, Ward had not

applied for another job, but he was eligible to be rehired by his former company. 5

RR 14, 16.    He chose instead to see what unemployment would provide versus

“what they were offering here” and to rest his previously injured back by not



                                         1
working, and “it was kind of nice to just let my back have a rest for a minute

anyways.” 5 RR 16. Defense counsel followed this statement by asking about his

back injuries, when they occurred, and what drugs he took for them. He stated his

back had been injured in 1999, and he had endured multiple back surgeries, but he

had not used either prescription medications or illegal narcotics for “a couple of

years, few years.” 5 RR 17. He testified he could find other employment and take

care of financial obligations. 5 RR 20. Neither the defense attorney nor the State’s

attorney had asked the defendant exactly when he was laid off. The judge did. 5

RR 27-28. Ward said he was laid off on the Saturday after he had appeared in

Court on Thursday, April 9. 5 RR 28. The judge characterized Ward’s testimony as

saying he took a “vacation” instead of finding a job to save up to pay the

restitution. 5 RR 28.      Additionally, when explaining his reasoning for the

sentence, the judge repeated that his decision to deny probation was based on the

fact that Ward did not work, but took “a month-and-a-half vacation to rest [his]

back.” 5 RR 40. He further explained, “I promise you if you had gone out and

flipped burgers and showed me you were working, I would make a different

decision than I’m about to make. But you didn’t. No, ‘rest my back. I’m going to

see how much unemployment pays me instead of going out and working.’” 5 RR

41.     Ward filed no motion for new trial, but filed notice of appeal on June 26,

2015.



                                         2
                       SUMMARY OF THE ARGUMENT

      The Appellant has failed to preserve error.

      The judge questioned the defendant to find a fact that neither attorney had

asked about, in order to clarify a point. The judge’s comments did not deprive

Ward of a fair and impartial magistrate. Nor did they take away the presumption

of innocence. He remained objective.



                                   ARGUMENT

      The Appellant failed to preserve error. If the court considers his argument

on the merits, the trial court was merely seeking to understand or clarify the

defendant’s testimony regarding his reasoning for not having a job when he knew

that paying restitution would keep him from going to jail. Such questioning by the

judge is permitted in a bench trial if the defendant is seeking probation.



1) The Appellant failed to preserve error and no fundamental error was
   committed.


      To preserve a complaint for review, an appellant must have presented the

trial court with a timely request, objection, or motion stating the specific grounds

for the ruling ordered. TX R APP Rule 33.1 (a) (1) (A). Ward failed to object at

trial when the judge made comments of which Ward complains on appeal. Hence,



                                          3
he preserved nothing for review. See Hookie v. State, 136 S.W. 3d, 671 (Tex. App.

–Texarkana 2004, no pet.) Jackson v. State, 989 S.W.3d 845 (Tex. App.—

Texarkana 1999, no pet.) No motion for new trial was filed.

      Only if this Court believes the error to be “fundamental error of

constitutional dimension and required no objection,” should the issue even be

reached. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001).        The

Jasper opinion cites the plurality opinion of Blue v. State, 41 S.W.3d, 129, 132

(Tex. Crim. App. 2000) which held that a trial judge’s comments “which

tainted [the defendant’s] presumption of innocence in front of the venire” were

fundamental error.

      This Court has considered complaints of judicial conduct and

determined that “[W]here no objection is made, remarks and conduct of the

court may not be subsequently challenged unless they are fundamentally

erroneous. Moreno v. State, 900 S.W.2d 357, 359 (Tex. App. Texarkana 1995,

citing Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. [Panel Op.]

1978)).

      In cases were the error is unpreserved, the harm to the defendant must

be egregious, that is, so harmful that the defendant was denied a fair and

impartial trial. Moreno v. State, 900 S.W.2d 357, 359 (Tex. App. Texarkana

1995, citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)


                                         4
(opinion on rehearing).

      Ward did not object at trial to the judge’s comments. His sole issue

should therefore be rejected as unpreserved and not fundamental error and the

sentence should be affirmed.

2) The judge’s comments were not improper and he maintained                        his
   objectivity.
   a) Standard of Review: actual impropriety and probable prejudice

      If the issue is considered on its merits, the appropriate standard is as follows:

“To reverse a judgment on the ground of improper conduct or comments of the

judge, we must find (1) that judicial impropriety was in fact committed, and (2)

probable prejudice to the complaining party.” Dockstader v. State, 233 S.W.3d 98,

108 (Tex. App. –Houston [14th Dist.] 2007, pet. ref’d) (finding no impropriety);

Johnson v. State, 452 S.W.3d 398, 405 (Tex. App. Amarillo, 2014, pet ref’d.) (no

impropriety by merely admitting evidence and comments not fundamental error).

In Johnson, the Amarillo court relied on a Court of Criminal Appeals case when it

said, “A trial court’s comments do not constitute fundamental error unless they rise

to such a level as to bear on the presumption of innocence or vitiate the impartiality

of the jury.” Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001).

      This Court has determined that whether there is fundamental error depends

on whether an appellant can establish egregious harm. Moreno v. State, 900

S.W.2d 357, 359 (Tex. App.—Texarkana 1995, no pet.)

                                          5
   b) The trial judge did not become an advocate for the State.


      A trial judge may question a witness when seeking information only, to

clarify a point, or to get the witness to repeat something that the judge could not

hear. Moreno v. State, at 359, citing Brewer at 721. When a judge goes beyond

this permissible questioning, there are two possible dangers: the judge may convey

his opinion of the case to the jury, or the judge may become an advocate in the

adversarial process and lose his or her neutrality.

      Obviously, because this was not a jury trial, but a guilty plea, the first danger

is not applicable, so the issue here is whether the judge went beyond the

permissible questioning and became an advocate.

      The judge’s questions to the defendant were permissible because they were

seeking information or designed to clarify a point. As in the Moreno case, this

judge was seeking facts, and the questions were within the bounds of what would

have been allowed by the attorneys. The answers would have been within the

bounds of admissible testimony.

      The judge’s comments about Ward’s choosing to “vacation” rather than to

work to save up to pay Newberry the restitution were reasonably based on Ward’s

own words: “It would be nice to rest my body.” “I’m looking at how much I

would get unemploymentwise versus what they were offering here, and it was kind

                                           6
of nice just to let my back have a rest for a minute anyways. Working on a drilling

rig when you’re 36 years old and had as many spinal surgeries that I have had

takes a toll on your body. I kind of looked at it as taking a second off and giving

my body a little rest.” 5 RR 16. Yet when he spoke about his use of prescription

drugs, he claimed not to have used anything stronger than ibuprofen for his back

in “a couple of years, few years.” 5 RR 17. Furthermore, his attorney had asked

when his unemployment payments would begin, and he answered that his

application had been incomplete and he had an information packet due to arrive in

two days. 5 RR 15. So, as of the date of the hearing, he had not yet completed his

application for unemployment. The judge’s questions about Ward’s efforts to find

work were fact-finding questions, and his question about taking a vacation were

merely designed to clarify Ward’s answers. No impropriety has been shown. He

was not being an advocate for the State.


   c) The judge did not lose his objectivity.
      In Moreno, the record did not reveal that the judge became so entangled as

an advocate that he could not at the end of the proceeding make an objective

finding of fact in the case. Likewise, the judge in this case showed himself able to

be objective at the end of the hearing when, as he was about to announce Ward’s

sentence, he stated: “[I]f you had gone out and flipped burgers and showed me you

were working, I would make a different decision than I’m about to make.” 5 RR 41.


                                           7
      When the judge spoke briefly about the potential for the 20 percent

reduction in sentence, he noted that he will have to consider it by law, but he didn’t

think he would be granting much, if any, of the reduction. That leaves open the

possibility of such a reduction, although the possibility is slim due to Ward’s lack

of interest in making restitution.

      The appellant has shown neither improper questioning, nor advocacy by the

judge for the State, nor egregious harm bearing on the presumption of innocence.

His sole point of error should be rejected and his conviction affirmed.




                           CONCLUSION AND PRAYER

      In conclusion, the Appellant has offered as his only argument—not

preserved—that the Court erred by questioning the defendant as an advocate for

the State, and thus deprived the defendant of a trial by a neutral and detached

magistrate. The issue should not be reached because it was not preserved by

timely objection. If it is reached, it should be rejected because the questions were




                                          8
proper, there was no jury to influence, and even if improper, no egregious harm has

been shown that rises to the level of bearing on the presumption of innocence.


                                      Respectfully Submitted,


                                      /s/ Zan Colson Brown
                                      Zan Colson Brown
                                      Texas Bar No. 03205900
                                      Assistant District Attorney
                                      101 East Methvin St., Suite 333
                                      Longview, TX 75601
                                      Telephone: (903) 236–8440
                                      Facsimile: (903) 236–3701


                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing has been
forwarded to all counsel of record by efiling.

      Time Cole
      P.O. Box 413
      Gilmer, Texas 75644
      At timcone6@aol.com

this 19th day of October, 2015.

                                             /s/ Zan Colson Brown_
                                             Zan Colson Brown
                                             Assistant District Attorney




                                         9
                        CERTIFICATE OF COMPLIANCE

      I certify that the foregoing document complies with Texas Rules of
Appellate Procedure, Rule 9 (2012) regarding length of documents, in that
exclusive of caption, identify of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and appendix, it
consists of 1913 words.


                                               /s/ Zan Colson Brown
                                               Zan Colson Brown
                                               Assistant Criminal District Attorney




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