      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               444444444444444444444444444
                                 ON MOTION FOR REHEARING
                               444444444444444444444444444



                                         NO. 03-05-00188-CR



                                   Willie Ray Houston, Appellant

                                                    v.

                                    The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
           NO. 2044076, HONORABLE JON N. WISSER, JUDGE PRESIDING



                              MEMORANDUM OPINION


                In response to appellant’s motion for rehearing, we overrule the motion, withdraw

our opinion and judgment issued on November 29, 2005, and substitute the following opinion.

Willie Ray Houston appeals his conviction after a bench trial for felony driving while intoxicated.

In a single point of error, appellant complains that, after the State had rested, the trial court permitted

the State to reopen the evidence to admit evidence of prior convictions alleged in the indictment to

support the enhancement to a felony-level conviction. Appellant contends that the trial court was

biased and acting as prosecutor in permitting the State to reopen its case for additional evidence, in
violation of appellant’s due process rights. Because the trial court did not abuse its discretion, we

affirm the judgment of conviction.

                  Austin Police Officer Robert Higgins stopped appellant from driving out of a gas

station on August 31, 2004, after receiving information from the store clerk that appellant might be

intoxicated. Following a field sobriety test and after exhibiting symptoms of intoxication, appellant

was placed under arrest. He was indicted for felony driving while intoxicated as enhanced by four

prior convictions. See Tex. Pen. Code Ann. §§ 49.04, .09(b)(2) (West Supp. 2005).1 At the close

of the State’s case, the State waived closing argument except to respond to appellant’s closing

argument. Appellant then argued that the State had failed to prove intoxication. He also argued that,

as the State had failed to present any evidence regarding the enhancement paragraphs of the

indictment, the court should find appellant guilty only of the misdemeanor offense of driving while

intoxicated. The court then asked whether the State “wish[ed] to respond.” After some initial

confusion, the following colloquy occurred:


       The Court: What about the evidence of the other convictions? You aren’t going to
                  put those in evidence?

       [State]:       Yes, Your Honor.

       The Court: All right. I was going to say: Why don’t you move to reopen to put
                  in—at this time has the State put on any evidence of any of these other
                  convictions in this—in the packet?

       [State]:       We thought they were included within that packet, Your Honor, based
                      on his pen trip [sic] with the—



       1
          We will refer to the current section 49.09(b)(2) in the penal code, as it remained unchanged
in the most recent amendments to this section. See Act of May 25, 2005, 79th Leg., R.S., ch. 996,
§§ 1, 3, 2005 Tex. Gen. Laws 3365, 3365-3366.

                                                  2
       The Court: This covers the one that’s the—this thing over there, but it only covers
                  one of these four. You might want to look that over. That covers the
                  one that the State alleges they wish to use to boost this from a third to a
                  second, but is there underlying ones—

       [State]:     I understand what you’re saying, Your Honor.

       The Court: —that boost it to a felony third, there’s only one of them. You might
                  want to take a look at that.


The State then sought to reopen the evidence to offer the other judgments. The court granted the

State’s request. The State then offered into evidence and the court admitted State’s Exhibits 3

through 6, which contained evidence of additional convictions. Appellant objected generally to the

State’s reopening but not to the exhibits or to the judge’s conduct. The court overruled appellant’s

objection. The court then gave appellant additional time to present his argument. The court found

appellant guilty of the offense of driving while intoxicated, a third-degree felony as enhanced by at

least two prior convictions.

            From this colloquy, appellant argues that the court exhibited bias in first suggesting and

then permitting that the State reopen and introduce evidence after the parties had closed. Appellant

urges: “This was, truly, the trial judge’s sua sponte motion to reopen and put on evidence the judge

thought was necessary to secure a felony conviction. To put it another way, the judge made sure the

Appellant did not win, demonstrating his bias in favor of a conviction.”

            The State argues that appellant failed to preserve error. The general rule is that counsel

must object to trial court comments made during trial in order to preserve error. See Tex. R. App.

P. 33.1. Appellant does not contend that he made a timely objection, thereby preserving error; rather,

citing Gamez v. State, he contends that the error cannot be waived. 737 S.W.2d 315, 318 (Tex.



                                                  3
Crim. App. 1987). In Gamez, the issue was whether the trial judge should have been absolutely

disqualified from presiding over the defendant’s trial because he had served as counsel for the State

in the case. After an evidentiary hearing, the court determined that the trial judge had not served as

counsel in the case and there was no reason to disqualify him. Because the provision prohibiting a

judge from sitting in any case in which he had served as counsel for the State or the accused was

mandatory, it was not necessary that an objection be made. See Tex. Const. art. V, § 11; Tex. Code

Crim. Proc. Ann. art. 30.01 (West Supp. 2005); Holifield v. State, 538 S.W.2d 123, 125 (Tex. Crim.

App. 1976). Appellant does not assert that the trial judge was subject to disqualification pursuant

to the statutory provision. Rather, he asserts that the judge intruded into the process, serving both

as prosecutor and fact-finder.

             In Blue v. State, 41 S.W.3d 129, 130 (Tex. Crim. App. 2000) (plurality op.), the trial

court made comments in front of the jury that demonstrated he was not fair or impartial. A majority

of the court of criminal appeals concluded that his comments “vitiated the presumption of

innocence” before the venire, adversely affecting the defendant’s right to a fair trial. Because the

comments tainted the defendant’s presumption of innocence in front of the venire, the majority held

that it was fundamental error of constitutional dimension and required no objection. Id. at 132. In

a concurring opinion, another judge wrote that the right at issue was the fundamental right to an

impartial judge and, as such, no objection was required. Id. at 138 (Keasler, J., concurring). Thus,

the issue in Blue concerned the influence the trial judge has on a jury and the effect of the trial

judge’s comments. Even if we were bound to follow the plurality opinion in Blue, none of the

court’s comments here rose to such a level as to bear on the presumption of innocence or vitiate the

impartiality of the jury.


                                                  4
            The facts in Blue are also readily distinguishable from those here in that the comments

were delivered to the venire. There was no jury present here and the case was tried to the bench.

Moreover, a timely objection could have prevented the trial judge from conveying the “suggestions”

appellant now complains of on appeal. The judge’s comments do not rise to the level of fundamental

error. Appellant is not relieved of his obligation to preserve error.

            In addition, appellant provides no authority for the proposition that the facts in this case

rise to a violation of his due process rights. See Tex. R. App. P. 38.1(h). Appellant failed to

preserve the issue of judicial bias during trial, and he has failed to provide any authority allowing

this claim to be raised on appeal without preservation. In the interest of justice, we will address the

merits of the issue.

            Article 36.02 of the Texas Code of Criminal Procedure marks the limit beyond which

no court is authorized to allow the introduction of testimony. It provides: “The court shall allow

testimony to be introduced at any time before the argument of a cause is concluded, if it appears that

it is necessary to a due administration of justice.” Tex. Code Crim. Proc. Ann. art. 36.02 (West

1981); see Allman v. State, 164 S.W.3d 717, 719 (Tex. App.—Austin 2005, no pet.). As an initial

matter, the parties had not concluded argument. The State was not precluded by article 36.02 from

seeking to reopen its evidence.

            In considering allegations of judicial bias, the Supreme Court has determined that

“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky

v. United States, 510 U.S. 540, 555 (1994). The trial court has broad discretion to maintain control

of the proceedings before it and to expedite the proceedings, Jasper v. State, 61 S.W.3d 413, 421

(Tex. Crim. App. 2001), as well as to aid in the exercise of its jurisdiction, in the due administration


                                                   5
of justice, and in the preservation of its independence and integrity. See Tex. Code Crim. Proc. Ann.

art. 36.02; Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979).

            Allowing a party to reopen the evidence is a matter within the sound discretion of the

court. E.g., Woodkins v. State, 542 S.W.2d 855, 861 (Tex. Crim. App. 1976) (no abuse of discretion

shown in allowing State to reopen evidence); Perry v. State, 464 S.W.2d 660, 662 (Tex. Crim. App.

1971) (same); Berry v. State, 442 S.W.2d 713, 715 (Tex. Crim. App. 1969) (no abuse of discretion

in court permitting State to reopen and introduce additional evidence before charge read to jury);

Patterson v. State, 416 S.W.2d 816, 821 (Tex. Crim. App. 1967) (same).

            Applying these principles to this case, and after examining the judge’s conduct in the

context of the entire, albeit brief, record, we conclude there is no showing of judicial bias even

though the judge’s suggestion of reopening was not proper. The record before this court reflects that

the trial court acted within its discretion. See Jasper, 61 S.W.3d at 421. We overrule appellant’s

sole point of error and affirm the judgment.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Justices B. A. Smith, Patterson and Puryear

Affirmed

Filed: February 24, 2006

Do Not Publish




                                                  6
