                                   NO. 07-03-0437-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                    AUGUST 29, 2005

                          ______________________________


                             DAVID CAFFERY, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

         FROM THE 359TH DISTRICT COURT OF MONTGOMERY COUNTY;

       NO. 98-05-00463-CR; HONORABLE KATHLEEN A. HAMILTON, JUDGE

                         _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION
              ON REMAND FROM COURT OF CRIMINAL APPEALS


       By our opinion of September 30, 2004, we affirmed appellant’s conviction and

sentence upon his guilty plea to two counts of aggravated sexual assault of a child. In that

opinion, we agreed with the State that the grounds presented by appellant’s third issue
were not preserved for review and held that appellant’s failure to file a motion for the

recusal of the trial judge amounted to a waiver of the error. Citing Rule 47.1 of the Rules

of Appellate Procedure, we found appellant’s additional arguments not necessary to our

final disposition and affirmed the judgment of the trial court. On appellant’s petition for

discretionary review, the Court of Criminal Appeals held that pursuant to Rule 47.1, our

prior opinion did not adequately address appellant’s argument that the trial court’s actions

violated rights that could not be waived by the failure to object, vacated our judgment, and

remanded the case to this Court for reconsideration of appellant’s issue. Now, upon

remand, we again consider appellant’s third issue.1


       By issue three, appellant contends the trial court reversibly erred by interviewing the

complaining witness and two of the State’s other witnesses in camera without notice to or

the presence of appellant or his attorney prior to deciding to reject a proposed plea bargain

and prior to a determination of guilt or innocence. Although conceding error, by its

response, the State contends (1) the error was not preserved for review or, alternatively,

(2) by proceeding to the jury on punishment, appellant restarted the proceedings on

punishment and no error is shown. Restated here, the discrete questions which we must

determine are whether the in camera interview of the victim and two witnesses by the trial

court in chambers, without notice to appellant or his attorney, constituted a denial of

appellant’s constitutional guarantee of a trial by due course of law per Article I, Section 19



       1
           For factual restatement, see our prior opinion of September 30, 2004.

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of the Texas Constitution and, if so, whether the error was subject to waiver by appellant’s

failure to object. Based on the following rationale, we sustain appellant’s third issue and

reverse and remand the cause to the trial court for a new trial.


                            Denial of Constitutional Guarantee


       In addition to appellant’s right to a public trial under Article I, Section 10 of the Texas

Constitution, Article I, Section 19 guarantees appellant a trial by “due course of the law.”

Due process has been described as “the basic and essential term in the social compact

which defines the rights of the individual and delimits the powers which the state may

exercise.” In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In In re Taylor,

567 F.2d 1183, 1187-88 (2d Cir. 1977), the Court observed that in camera proceedings are

“extraordinary events in the constitutional framework because they deprive the [affected

party] of the root requirements of due process . . . .” See also Carroll v. President and

Comm’rs of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968) (expressing

disapproval of ex parte proceedings).


       Citing In re Taylor and Carroll, in State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 7

(Tex.Cr.App. 1983), the Court held that the inspection of a presentence report before a

determination of guilt violated due process. It reasoned that a court could not maintain its

status as a neutral arbiter when it considered evidence theoretically inadmissible in a court

of law and concluded that the practice of the trial judge “of reviewing prior to a

determination of guilt unsworn testimony not subject to the rigors of cross-examination, a

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review that does not take place before opposing parties in a court of law, is for all practical

purposes an in camera proceeding.” Considering that the State concedes error and does

not contend that the ex parte in camera interview was authorized under article 26.13(e) of

the Code of Criminal Procedure, we need not address the application of the statute. See

Tex. Code Crim. Proc. Ann. art. 26.13(e) (Vernon Supp. 2004-05).


                                Appellant’s Failure to Object


       Fundamental error may be presented for the first time on appeal. For example, the

question of former jeopardy is fundamental and may be raised at any time. See Muncy v.

State, 505 S.W.2d 925, 925 (Tex.Cr.App. 1974). Similarly, an issue concerning the

disqualification of a judge may not be waived by the parties but may be presented on

appeal even in the absence of an objection in the trial court. Gamez v. State, 737 S.W.2d

315, 318 (Tex.Cr.App. 1987). Because in camera proceedings are extraordinary events

in the constitutional framework and ex parte proceedings are also condemned, we conclude

that a denial of due process by the ex parte in camera interview of the victim and witnesses

under the circumstances presented here violated the absolute systemic requirement of

process and that the error may be presented for the first time on appeal. See Mendez v.

State, 138 S.W.3d 334 (Tex.Cr.App. 2004).


       By its alternative response, the State contends appellant restarted the trial

procedures on punishment by going to the jury for punishment and that no error is asserted

in the restarted proceeding. Then, the State concludes that by proceeding to a jury on

                                              4
punishment, appellant waived any error in the proceedings that led to the trial court’s

refusal of the plea bargain. However, the State cites no authority for its argument and we

have found none. Moreover, the State does not argue and the record does not show that

appellant relinquished any rights. See Muniz v. State, 138 S.W.3d 334 (Tex.Cr.App. 1993).

Indulging every reasonable presumption against a waiver of fundamental constitutional

rights, we reject the State’s suggestion that, after the trial court conducted its ex parte in

camera interview prohibited by McDonald, appellant made any waiver of the error by

proceeding to a trial by an impartial jury. See McDonald, 662 S.W.2d at 7; Lyles v. State,

582 S.W.2d 138, 141 (Tex.Cr.App. 1979). Appellant’s third issue is sustained.


       Accordingly, the judgment is reversed and the cause is remanded to the trial court

for a new trial.


                                           Don H. Reavis
                                             Justice


Do not publish.




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