          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                         NO. 03-01-00666-CR



                                  Charles Michael Taylor, Appellant

                                                    v.

                                     The State of Texas, Appellee




          FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
              NO. 51,289, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING




                Appellant Charles Michael Taylor appeals his conviction for sexual assault of a child. See

Tex. Pen. Code Ann. ' 22.011(a)(2)(A) (West Supp. 2002). Appellant waived trial by jury and entered a

plea of guilty before the court. Appellant=s punishment was assessed by the trial court at fifteen years=

imprisonment.


                                                  Issue

                Appellant advances one issue in the form of a question: AWhether the appellant received a

fair trial when the trial court denied him the opportunity to present relevant evidence and testimony during

the sentencing portion of the trial and when the judge abandoned her neutral role and became an advocate

in the adversarial process.@ We will affirm the conviction.
                                                Background

                 On August 27, 2001, appellant entered a plea of guilty to the indictment before Judge Joe

Carroll. Appellant waived trial by jury and was duly admonished of the consequences of his plea by Judge

Carroll. It was determined that there was no plea bargain as to the penalty to be assessed except that the

State agreed to dismiss another indictment for sexual assault of a child involving a different complainant if

appellant admitted his guilt of that offense and requested the trial court to take that offense into account in

assessing punishment for the instant offense. See Tex. Pen. Code Ann. ' 12.45(a) (West 1994).

Appellant=s written sworn judicial confession to the instant offense was admitted into evidence to support

the guilty plea. See Tex. Code Crim. Proc. Ann. art. 1.15 (West Supp. 2002); Dinnery v. State, 592

S.W.2d 343, 353 (Tex. Crim. App. 1979) (judicial confession alone is sufficient to satisfy requirements of

article 1.15). Judge Carroll concluded that the evidence was sufficient to support appellant=s plea. At this

point, however, appellant requested that a presentence investigative report be made before punishment was

assessed. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 9 (West Supp. 2002). As a result, the case was

continued until October 31, 2001.1

                 On October 31, 2001, the trial resumed before Judge Martha Trudo where the proceedings

were treated as a Asentencing@ hearing. The State called Margaret Rutherford, appellant=s ex-wife, who

        1
           The Court of Criminal Appeals recently reiterated that the statute providing for bifurcated-
trial procedure applies only in pleas of not guilty before the jury. Barfield v. State, 63 S.W.3d 446, 449-
50 (Tex. Crim. App. 2001); Tex. Code Crim. Proc. Ann. art. 37.07, ' 2(a) (West 1981 & Supp.
2002). A plea of guilty before the court in a felony case is a unitary trial, but the provisions of article
42.12, section 9 frequently cause a break in the proceedings.
identified B.T., the complainant in the instant case, and S.M., the complainant in the other case against

appellant, as Aher daughters.@ She related that she had been married to appellant for twenty-two years prior

to the divorce, which occurred almost three years before trial. Rutherford, referring to the girls, stated:

A[W]e didn=t adopt them. We got them.@ B.T. was six months old and S.M. was eighteen months old

when the girls were taken into the Taylor home. B.T. was fifteen years old at the time of the alleged offense.

Rutherford principally testified as to the impact of the offenses upon her and the girls. Appellant then

testified, giving his version of the offense and the earlier divorce.

                 Although appellant=s issue on appeal is multifarious and presents nothing for review, we shall

nevertheless consider it. See Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990). First,

appellant contends that the trial court denied him the opportunity to present relevant evidence at the

Asentencing@ portion of the trial. This contention refers to the testimony of Margaret Rutherford. Appellant

claims Rutherford=s testimony indicated that the complainant, B.T., had been Aa problem to handle@ before

and after the offense in question, and that all of this was entirely appellant=s fault. Appellant urges that when

he attempted to cross-examine Rutherford to show that B.T. had been referred to the juvenile authorities for

setting fires, the trial court sustained the State=s relevancy objection, and he was prevented from offering

relevant evidence.

                 When evidence is excluded, the offering party, in order to preserve error for review, must

make an offer of proof or perfect a bill of exception as to the substance of the evidence excluded. Tex. R.

Evid. 103(a)(2), (b); Howard v. State, 962 S.W.2d 119, 122 (Tex. App.CHouston [1st Dist.] 1997, pet.

ref=d). This appellant did not do.



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                 It is observed that appellant did elicit from Rutherford that she had referred B.T. to the

juvenile authorities on two occasions. Rutherford, however, denied that B.T. ever set fires. There was no

objection to appellant=s exhibit number four, a letter from Dr. Feroza B. Talukdar, M.D., a child/adolescent

psychiatrist, with the Central Counties Center for Mental Health and Mental Retardation Services to the

Children=s Mental Health Services in Temple, dated April 12, 1999. The letter stated that B.T. was in need

of intense supervision and Ahas been known to set fires.@ Appellant did not preserve error for review, but

the evidence appellant claims was improperly excluded found its way into evidence. There is no merit to

appellant=s contention.

                 Appellant also complains that Rutherford, on cross-examination, volunteered an

unresponsive statement that appellant beat B.T. and she Awas torn with his rape.@ Appellant made no

objection to the unresponsive answer, but asked Rutherford if the Scott and White Hospital records

showed B.T. suffered no trauma. Rutherford disputed that, and when appellant stated he had those

records, Rutherford replied that they were not the same records shown her. The trial court then sustained

the State=s objection about relitigating the facts. Appellant urges this action prevented him from disproving

the claim made by Rutherford. Appellant took no other action. He did not make an offer of proof or

perfect a bill of exception. See Tex. R. Evid. 103(a)(2), (b). He waived any error. See Howard, 962

S.W.2d at 122.

                 In the second portion of appellant=s multifarious contention or issue, appellant complains of

the trial court=s interrogation of him after he had taken the witness stand at the Asentencing@ hearing. After

the direct, cross, and re-direct examinations were concluded and the State had no further questions, the trial


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court began its interrogation of appellant who had been somewhat evasive. It is obvious that the trial court

was attempting to clarify appellant=s earlier testimony, and there was no objection to the trial court=s

questioning. Nothing is presented for review. Tex. R. App. P. 33.1(a).

                We do not understand appellant to be claiming fundamental error. He has not briefed the

issue along those lines except to simply say that in Acases where the error was not preserved, the harm to

the defendant must be egregious, that is so harmful that the defendant was denied a fair and impartial trial.@

Almanza v. State, 686 S.W.2d 157 (Tex. Cr. App. 1984).@ Almanza dealt with an interpretation of the

statutory language in article 36.19 of the Texas Code of Criminal Procedure regarding jury charge error.

Id. at 171 (op. on reh=g). It is not applicable here. Cf. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim.

App. 2000) (holding Almanza sets appropriate harm analysis for jury charge error under article 36.19, not

Rule 44.2).

                A trial judge may question a witness in order to clarify an issue the trial judge must decide in

fulfilling her fact-finding role. In re R.P., 37 S.W.3d 76, 79 (Tex. App.CSan Antonio 2000, no pet.); In re

S.J., 940 S.W.2d 332, 338 (Tex. App.CSan Antonio 1997, no writ); Moreno v. State, 900 S.W.2d 357,

359 (Tex. App.CTexarkana 1995, no pet.). These cases make clear that a trial judge should not become

so entangled in questioning as to become an advocate for the State, thereby precluding the trial judge from

rendering an objective finding. R.P., 37 S.W.3d at 79; S. J., 940 S.W.2d at 338; Moreno, 900 S.W.2d at

359-60.

                Even if error had been preserved in the instant case, we conclude that the trial court did not

become so entangled in the interrogation as to become an advocate for the State. Trial courts must be


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extremely careful in engaging in the interrogation of any witness. Courts cannot be advocates for either

party. The purpose of the interrogation must be proper and limited, and a court should be aware it is

Askating on thin ice@ when it engages in questioning a witness.

                 The instant case was a bench trial on a plea of guilty. It did not involve a trial court=s

comments or interrogation of a witness in the presence of a jury. Cf. Blue v. State, 41 S.W.3d 129 (Tex.

Crim. App. 2000) (holding trial court=s comments to jury constituted error).

                 Appellant=s issues are overruled. The judgment is affirmed.




                                                 __________________________________________

                                                 John F. Onion, Jr., Justice

Before Justices B. A. Smith, Yeakel and Onion*

Affirmed

Filed: May 9, 2002

Do Not Publish




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*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment.
    See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).




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