                                      IN THE
                              TENTH COURT OF APPEALS

                                      No. 10-13-00120-CR

HENRY LEE HUTCHINSON,
                                                                      Appellant
    v.

THE STATE OF TEXAS,
                                                                      Appellee


                               From the 54th District Court
                                McLennan County, Texas
                               Trial Court No. 2012-1755-C2


                               MEMORANDUM OPINION


         Henry Lee Hutchinson was convicted of aggravated assault and sentenced to 75

years in prison. See TEX. PENAL CODE ANN. §22.02 (West 2011). Because, based on the

issues presented for review, we find no error in the trial court’s judgment; the trial

court’s judgment is affirmed.1

IMPARTIAL JUDGE

         In his first issue, Hutchinson contends that he was denied a right to an impartial

1Hutchinson does not raise an issue regarding the sufficiency of the evidence. Thus, the underlying facts
of this appeal will not be recited.
judge during the punishment phase of his trial. Specifically, Hutchinson argues that the

trial court violated Hutchinson’s right to due process during the punishment phase of

the trial by becoming an advocate for the State when the trial court allegedly

“corrected” the State’s proof of its enhancement allegations.

        Hutchinson complains about a statement made by the trial court during the

punishment phase of the trial and outside the presence of the jury. The portion of the

statement about which Hutchinson complains is emphasized in the entire exchange set

out as follows:

        Court: Certainly. I do want the record to reflect we’ve had several
        conversations off the record with the attorneys in this case regarding the
        issue of the Enhancement Allegation in the indictment and the
        Enhancement Allegations in the Notice to Enhance. And I brought it to
        the attorney’s [sic] attention that – up here at the bench at some point in
        time, maybe shortly after they read their Enhancement Allegations 2 that I
        did not think it was pled – while it may have been read a certain way, I
        don’t think it’s pled in any one document the two previous felony
        convictions that the State was electing to proceed on had been pled that
        they were sequential, because they are alleged in two separate documents.
        And, um, we’ve had some discussions regarding that issue. The State has
        now decided to abandon the Enhancement allegation that they read in the
        – that’s been alleged in the indictment, and the State is also asking
        permission to, um, once the defense rests, to read additional allegations
        into the record and have the defendant enter a plea to those. Is that – I’m
        not trying to put words in your mouth –

        State: No, Your Honor, that’s –



2The record reflects that after the State read the enhancement allegations, the court called the “attorneys”
to the bench for a discussion off the record. Because it appears that the attorneys for both sides were
called to the bench, we believe the reporter’s use of the word “attorney’s” in this sentence is in error; thus
our use of the phrase, “[sic].”
Hutchinson v. State                                                                                    Page 2
       Court: – is that a fair representation?

       State: Yes, Your Honor.

       Court: [], is that a fair representation?

       Defense: That is a fair representation, Your Honor.

       Court: Okay. All right, then. And I’ll go ahead and let you know, I do
       plan to allow the State to read any additional allegations they wish to.

Hutchinson argues that the italicized portion of the statement shows the trial court was

biased because it took actions to assist the State.

       “’[A] fair trial in a fair tribunal is a basic requirement of due process.’" Weiss v.

United States, 510 U.S. 163, 178 (U.S. 1994) (quoting In re Murchison, 349 U.S. 133, 136, 99

L. Ed. 942, 75 S. Ct. 623 (1955)). A necessary component of a fair trial is an impartial

judge. Id.; Tumey v. Ohio, 273 U.S. 510, 532, 71 L. Ed. 749, 47 S. Ct. 437 (1927).

       Initially, we note that Hutchinson did not object to this alleged error. After

supplemental briefing on the issue of preservation, Hutchinson argues that this type of

error was not required to be preserved because the Court of Criminal Appeals has

recognized that “certain constitutional restraints on the comments of a judge” have

been held to be absolute requirements and not subject to the preservation rule. See

Saldano v. State, 70 S.W.3d 873, 888-889 (Tex. Crim. App. 2002). Hutchinson is correct

that “certain constitutional restraints on the comments of a judge” have been held to be

absolute requirements and not subject to the preservation rule. However, the only


Hutchinson v. State                                                                   Page 3
judicial comments that have been found to be error which required no objection were

those iterated in the Court’s opinion in Blue v. State, 41 S.W.3d 129 (Tex. Crim. App.

2000).

         In Blue, the appellant complained about (1) the trial court’s comments to the jury,

prior to jury selection, apologizing for the delay in the process and complaining about

the defendant’s indecision as to whether to take the State’s plea bargain offer or go to

trial; and (2) the trial court’s explanation of why a defendant might not testify. Id. 130.

In this situation, four judges of the Court of Criminal Appeals held that these comments

tainted the presumption of innocence before the jury and required no objection. Id. at

132. A fifth judge held that the trial court’s comments violated the right to an impartial

judge. Id. at 135 (opinion of Keasler, J.). But since that opinion issued, the Court of

Criminal Appeals has not expanded upon the types of comments by a trial court which

would require no objection. It has, however, limited the value of the opinions in Blue to

those of minority opinions, such as a concurring opinion. Unkart v. State, 400 S.W.3d 94,

101 (Tex. Crim. App. 2013). Thus, the opinions in Blue have no precedential value. Id.

         The statement in this case was not made before the jury or before it had decided

Hutchinson’s guilt or innocence. It certainly does not rise to the level of a taint on the

presumption of innocence as found by four judges in Blue.            Because the Court of

Criminal Appeals has not extended its plurality holding in Blue to comments of a trial

court other than those that taint the presumption of innocence, we decline to do so as

Hutchinson v. State                                                                   Page 4
well.3

         Accordingly, because Hutchinson did not object, he has failed to preserve this

issue for our review. See TEX. R. APP. P. 33.1. Hutchinson’s first issue is overruled.

SUA SPONTE ACTIONS

         Hutchinson next complains that the trial court abused its discretion by sua sponte

reopening the punishment hearing after both sides rested so that the State could read a

new combination of enhancement allegations.

         Hutchinson clearly takes issue with the court’s ability to sua sponte reopen the

evidence. However, the trial court did not sua sponte reopen the evidence. Rather, the

trial court recited on the record that the State had asked permission to read additional

enhancement allegations in the record and have Hutchinson enter a plea to those

allegations.    Both the State and Hutchinson’s counsel agreed with the trial court’s

recitation. Hutchinson objected to allowing the State to reopen the evidence. The trial

court overruled the objection. The State then clarified that it was not asking to reopen,

but to read the allegations on rebuttal. Hutchinson objected that the allegations were

improper rebuttal evidence. That objection was also overruled.

         Whether by rebuttal or reopening, the State requested to introduce more

evidence. The trial court did nothing sua sponte. This issue is without merit, and



3And, had counsel believed the trial court to be biased, the “error” of the court could have been corrected
by a motion to recuse, the failure of which to file has been held in the civil context to waive any complaint
on appeal of a trial court’s bias. See In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998).
Hutchinson v. State                                                                                    Page 5
Hutchinson’s second issue is overruled.

PRIOR CONVICTIONS

        In his third issue, Hutchinson contends the State’s use of the prior conviction in

trial court number 79-220-C was improper because (1) it violated his rights under the ex

post facto clause; and (2) the record shows it was not a final conviction.

        In support of his ex post facto argument, Hutchinson relies on the indictment and

plea agreement, which are not a part of this record on appeal, from a 1983 Hill County

judgment.4 Hutchinson attached the indictment and plea agreement to his brief and to

a motion to supplement the record. We cannot consider evidence or documents outside

the appellate record unless it is necessary to determine our jurisdiction. See Sabine

Offshore Service, Inc. v. Port Arthur, 595 S.W.2d 840 (Tex. 1979) (“Affidavits outside the

record cannot be considered by the Court of Civil Appeals for any purpose other than

determining its own jurisdiction.”); Pierce v. State, No. 10-09-00320-CR, 2010 Tex. App.

LEXIS 5323, *3-4 (Tex. App.—Waco July 7, 2010, no pet.) (mem. op.).              Because

consideration of the indictment and plea agreement to the 1983 judgment are not

necessary to a determination of our jurisdiction, we will not consider them.

Hutchinson’s motion to supplement the record is denied, and this portion of his third

issue is overruled.

        Next, Hutchinson complains that the conviction in trial court number 79-220-C


4This judgment is in the record.
Hutchinson v. State                                                                 Page 6
was not a final conviction.     The record shows that Hutchinson pled true to the

enhancement paragraph alleging the conviction in trial court number 79-220-C.

Generally, a plea of true to an enhancement paragraph relieves the State of its burden to

prove a prior conviction alleged for enhancement and forfeits the right to appeal the

insufficiency of evidence to prove the prior conviction. Roberson v. State, PD-0917-12,

2013 Tex. Crim. App. LEXIS 1690, *13 (Tex. Crim. App. Nov. 20, 2013) (publish) (citing

Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006)). A recognized exception to

this rule is when the record affirmatively reflects that the enhancement itself was

improper, such as the prior conviction was not final. Id.; Mikel v. State, 167 S.W.3d 556,

559 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

       Hutchinson claims that because the judgment in trial court number 79-220-C,

rendered on August 14, 1979, shows that he was sentenced to 6 years in prison and

other documents show he was received at the prison the next day, and the order

revoking probation in trial court number 3112 indicates that he violated his probation in

that conviction on December 8, 1979, four months later, Hutchinson must have been

placed on probation in trial court number 79-220-C after being received by the prison.

And thus, his argument continues, because he must have been placed on probation, the

conviction in trial court number 79-220-C was not final.

       There is nothing in the record that affirmatively shows Hutchinson was placed on

probation in trial court number 79-220-C. Hutchinson merely speculates that he was

Hutchinson v. State                                                                 Page 7
placed on probation because the offense in trial court number 3112 occurred four

months after Hutchinson arrived at prison for trial court number 79-220-C. This is not

enough to call the exception to the general rule into play. Thus, because the record does

not affirmatively show that the judgment in trial court number 79-220-C was not final,

Hutchinson’s plea of true to that enhancement allegation forfeits the complaint he now

makes.

         Hutchinson’s third issue is overruled.

         In his fourth and final issue, Hutchinson complains that because the

enhancement paragraph alleging the conviction in trial court number 79-220-C was not

legally available for use as an enhancement, its use tainted the State’s use of the other

two enhancement paragraphs. We overruled Hutchinson’s arguments regarding the

legality of the enhancement paragraph alleging the conviction in trial court number 79-

220-C.    Therefore, its use could not have tainted the State’s use of the other two

enhancement paragraphs. Hutchinson’s fourth issue is overruled.

CONCLUSION

         Having overruled each issue on appeal, we affirm the trial court’s judgment.




                                           TOM GRAY
                                           Chief Justice




Hutchinson v. State                                                                 Page 8
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 17, 2014
Do not publish
[CRPM]




Hutchinson v. State                          Page 9
