                                                                                        ACCEPTED
                                                                                   05-14-01315-CR
                                                                         FIFTH COURT OF APPEALS
                                                                                  DALLAS, TEXAS
                                                                              1/21/2015 3:58:48 PM
                                                                                        LISA MATZ
                                                                                            CLERK




                                                                                                          5th Court of Appeals
                                                                                                           FILED: 1/22/2015
                                                                                       Lisa Matz, Clerk
                           No. 05-14-01315-CR
                           No. 05-14-01316-CR

                     IN THE COURT OF APPEALS
                  FOR THE FIFTH DISTRICT OF TEXAS
                         AT DALLAS, TEXAS


                           DANIEL GAYTAN,
                                Appellant

                                         vs.

                        THE STATE OF TEXAS,
                                Appellee


                On appeal from the 204th Judicial District Court
                           of Dallas County, Texas
                In Cause Nos. F14-56218-Q and F13-56007-Q


                         APPELLANT’S BRIEF


                                                 Counsel of Record:

Lynn Richardson                                  Julie Woods
Chief Public Defender                            Assistant Public Defender
Dallas County, Texas                             State Bar No. 24046173
                                                 Frank Crowley Courts Building
                                                 133 N. Riverfront Blvd., LB-2
Katherine A. Drew                                Dallas, Texas 75207-4399
Chief, Appellate Division                        (214) 653-3550 (phone)
Dallas County Public Defender’s Office           (214) 875-2363 (fax)
                                                 Julie.Woods@dallascounty.org

                            Attorneys for Appellant
                              LIST OF PARTIES

APPELLANT
Daniel Gaytan

APPELLEE
The State of Texas

DEFENSE COUNSEL AT TRIAL
At the original plea hearing in 05-14-01316-CR: Thomas Andrew Gatlin
8344 East R.L. Thornton Freeway, Suite 404
Dallas, Texas 75228

At the revocation hearing in 05-14-01316-CR and the plea hearing in 05-14-
01315-CR: Demarcus Ward
2201 Main Street, Suite 1006
Dallas, Texas 75201

STATE’S ATTORNEY AT TRIAL
At the original plea hearing in Cause No. 05-14-01316-CR: Gaelle Lauriston
At the revocation hearing in Cause No. 05-14-01316-CR and the plea hearing
in Cause No. 05-14-01315-CR:          Andrew Anagnostis
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399

APPELLANT’S ATTORNEY ON APPEAL
Julie Woods
Dallas County Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399

STATE’S ATTORNEY ON APPEAL
Susan Hawk (or her designated representative)
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
                                       ii
                                        TABLE OF CONTENTS

LIST OF PARTIES ................................................................................................... ii
INDEX OF AUTHORITIES......................................................................................v
STATEMENT OF THE CASE ..................................................................................1
ISSUES PRESENTED...............................................................................................2
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF ARGUMENT .................................................................................5
ARGUMENT .............................................................................................................7
         POINT OF ERROR 1, RESTATED ..........................................................................7
                  The presiding judge violated Rule 605 of the Texas Rules
                    of Evidence by testifying as a witness in Appellant’s
                                            cases.
         POINT OF ERROR 2, RESTATED ..........................................................................7
                      The trial court abused its discretion by considering
                      evidence outside the record in deciding Appellant’s
                                   sentences in these causes.
         POINT OF ERROR 3, RESTATED ........................................................................18
                     The trial court’s abandonment of its role as a neutral
                     arbiter deprived Appellant of his right to due process
                     under the Fourteenth Amendment of the United States
                                          Constitution.
         POINT OF ERROR 4, RESTATED ........................................................................18
                     The trial court’s abandonment of its role as a neutral
                    arbiter deprived Appellant of his right to due course of
                      law under Article I, § 19 of the Texas Constitution.
         POINT OF ERROR 5, RESTATED ........................................................................34
                     The trial court arbitrarily refused to consider the full
                      range of punishment in these causes in violation of
                                Appellant’s right to due process.




                                                          iii
         POINT OF ERROR 6, RESTATED ........................................................................34
                      The trial court arbitrarily refused to consider the full
                       range of punishment in these causes in violation of
                             Appellant’s right to due course of law.
         POINT OF ERROR 7, RESTATED ........................................................................37
                       The Court should reform the judgment in Appellate
                                  Cause No. 05-14-01316-CR.
PRAYER ..................................................................................................................39
CERTIFICATE OF SERVICE ................................................................................39
CERTIFICATE OF COMPLIANCE .......................................................................40




                                                            iv
                                        INDEX OF AUTHORITIES

Cases

Allen v. State,
  No. 05-12-00672-CR, 2013 Tex. App. LEXIS 4701 (Tex. App.—Dallas Apr. 11,
  2013, no pet.) (mem. op., not designated for publication) ...................................19

Asberry v. State,
  813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d) ........................................37

Avilez v. State,
  333 S.W.3d 661 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) ...................25

Beasley v. State,
  902 S.W.2d 452 (Tex. Crim. App. 1995) .............................................................16

Bethany v. State,
  814 S.W.2d 455 (Tex. App.—Houston [14th Dist.] 1991, no pet.) .....................19
Bigley v. State,
  865 S.W.2d 26 (Tex. Crim. App. 1993) ...............................................................37

Brewer v. State,
  572 S.W.2d 719 (Tex. Crim. App. [Panel Op.] 1978) .........................................20
Brown v. State,
  122 S.W.3d 794 (Tex. Crim. App. 2003) ...................................................... 20, 24
Brumit v. State,
  206 S.W.3d 639 (Tex. Crim. App. 2006) ...................................................... 18, 36

Charboneau v. State,
  No. 05-13-00340-CR, 2014 Tex. App. LEXIS 13923 (Tex. App.—Dallas Dec.
  30, 2014, no pet. h.) (mem. op., not designated for publication) .........................24

Dockstader v. State,
 233 S.W.3d 98 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) ............ 20, 24
Earley v. State,
  855 S.W.2d 260 (Tex. App.—Corpus Christi 1993, pet. dism’d as improvidently
  granted) .................................................................................................................36

                                                              v
Ex parte Brown,
  158 S.W.3d 449 (Tex. Crim. App. 2005) .............................................................37
Gagnon v. Scarpelli,
 411 U.S. 778 (1973) ...................................................................................... 18, 36

Gonzales v. State,
 No. 05-02-00478-CR, 2003 Tex. App. LEXIS 6740 (Tex. App.—Dallas Aug. 6,
 2003, pet. ref’d) (not designated for publication) ................................................17
Grado v. State,
  445 S.W.3d 736 (Tex. Crim. App. 2014) ...................................................... 18, 36

Guerrero v. State,
 143 S.W.3d 283 (Tex. App.—Waco 2004, no pet.).............................................19
Guin v. State,
 209 S.W.3d 682 (Tex. App.—Texarkana 2006, no pet.) .............................. 19, 24
Hammond v. State,
 799 S.W.2d 741 (Tex. Crim. App. 1990) .............................................................13
Harris v. State,
 No. AP-76,810, 2014 Tex. Crim. App. Unpub. LEXIS 517 (Tex. Crim. App.
 2014) (not designated for publication) .................................................................17
Hayden v. State,
 296 S.W.3d 549 (Tex. Crim. App. 2009) .............................................................15

Hensarling v. State,
 829 S.W.2d 168 (Tex. Crim. App. 1992) .............................................................13

Hickman v. State,
  Nos. 05-10-01250-CR and 05-10-01251-CR, 2013 Tex. App. LEXIS 9323
  (Tex. App.—Dallas July 29, 2013, no pet.) (mem. op., not designated for
  publication)...........................................................................................................16

In re Murchison,
  349 U.S. 133 (1955) .............................................................................................18

In re Salgado,
  53 S.W.3d 752 (Tex. App.—El Paso 2001, orig. proceeding) ............................15

                                                            vi
Jackson v. State,
  314 S.W.3d 118 (Tex. App.—Houston [1st Dist.] 2010, no pet.) .......................17
Jackson v. State,
  Nos. 05-13-00579-CR and 05-13-00580-CR, 2014 Tex. App. LEXIS 9059
  (Tex. App.—Dallas Aug. 14, 2014, no pet.) (mem. op., not designated for
  publication).................................................................................................... 16, 17

Jasper v. State,
  61 S.W.3d 413 (Tex. Crim. App. 2001) ...............................................................20

Jefferson v. State,
  803 S.W.2d 470 (Tex. App.—Dallas 1991, no pet.) ............................................36

Lawrence v. State,
  No. 05-10-00083-CR, 2011 Tex. App. LEXIS 2971 (Tex. App.—Dallas Apr. 20,
  2011, pet. ref’d) (mem. op., not designated for publication) ........................ 13, 14
Martinez v. State,
 327 S.W.3d 727 (Tex. Crim. App. 2010) .............................................................17
Moreno v. State,
 900 S.W.2d 357 (Tex. App.—Texarkana 1995, no pet.) .............................. 21, 24

O’Quinn v. Hall,
  77 S.W.3d 438 (Tex. App.—Corpus Christi 2002, no pet.) ................... 13, 14, 15

Peterson v. State,
  No. 05-12-01417-CR, 2013 Tex. App. LEXIS 13282 (Tex. App.—Dallas Oct.
  24, 2013, no pet.) (mem. op., not designated for publication) ...................... 18, 20

State ex rel. Rosenthal v. Poe,
  98 S.W.3d 194 (Tex. Crim. App. 2003) ...............................................................19
Taylor v. State,
  Nos. 05-13-01369-CR and 05-13-01370-CR, 2014 Tex. App. LEXIS 13918
  (Tex. App.—Dallas Dec. 30, 2014, no pet. h.) (mem. op., not designated for
  publication).................................................................................................... 20, 26

Urbano v. State,
  837 S.W.2d 114 (Tex. Crim. App. 1992) .............................................................17


                                                          vii
Wilson v. State,
 Nos. 05-10-01362-CR, 05-10-01363-CR, and 05-10-01364-CR, 2011 Tex. App.
 LEXIS 9702 (Tex. App.—Dallas Dec. 12, 2011) (mem. op., not designated for
 publication).............................................................................................. 19, 20, 24

Statutes

TEX. CODE CRIM. PROC. art. 37.07, § 3(a) ...............................................................15

TEX. PENAL CODE § 12.33 ........................................................................................36

TEX. PENAL CODE § 30.02(c)(2) ..............................................................................36

Constitutional Provisions

TEX. CONST. art. I, § 19 ..................................................................................... 18, 36

U.S. CONST. amend. XIV .................................................................................. 18, 36

Rules

TEX. R. APP. P. 43.2(b) .............................................................................................37
TEX. R. EVID. 605 .....................................................................................................12

Miscellaneous

http://www.dallascounty.org/department/csc/cats.php (last visited January 13,
   2015) .......................................................................................................................5
http://www.prisonoffenders.com/texas_syndicate.html (last visited January 21,
   2015) .....................................................................................................................17




                                                             viii
TO THE HONORABLE COURT OF APPEALS:

       COMES NOW Appellant, Daniel Gaytan, and submits this brief on appeal

from two convictions for burglary of a habitation in the 204th Judicial District

Court of Dallas County, Texas, the Honorable Lena Levario, judge presiding.

                            STATEMENT OF THE CASE

       In 2013 a grand jury indicted Appellant for burglary of a habitation. (CR2:

9).1 Appellant pleaded guilty to the charge. (CR2: 26-29). Pursuant to a plea

bargain agreement, the court placed Appellant on deferred adjudication probation

for a period of five years. (CR2: 20-25).

       In 2014 a grand jury indicted Appellant for another burglary of a habitation

offense. (CR1: 7). The State subsequently filed a motion to adjudicate in the 2013

burglary of a habitation case. (CR2: 49-50). Appellant pleaded true to the motion

to adjudicate. (CR2: 58-59). Appellant also pleaded guilty and judicially confessed

to the 2014 burglary charge without the benefit of a plea bargain agreement. (CR1:

21-25).

       The judge adjudicated Appellant guilty in the 2013 burglary case and

sentenced him to 15 years’ imprisonment in both cases. (CR1: 27-29; CR2: 61-63;

RR4: 55-57). Appellant timely filed his notice of appeal in each case. (CR1: 36;



1
  “CR1” refers to the clerk’s record filed in Appellate Cause No. 05-14-01315-CR. “CR2” refers
to the clerk’s record filed in Appellate Cause No. 05-14-01316-CR.
                                              1
CR2: 67).

                              ISSUES PRESENTED

                                POINT OF ERROR 1

The presiding judge violated Rule 605 of the Texas Rules of Evidence by testifying
                        as a witness in Appellant’s cases.

                                POINT OF ERROR 2

The trial court abused its discretion by considering evidence outside the record in
                  deciding Appellant’s sentences in these causes.

                                POINT OF ERROR 3

The trial court’s abandonment of its role as a neutral arbiter deprived Appellant of
  his right to due process under the Fourteenth Amendment of the United States
                                   Constitution.

                                POINT OF ERROR 4

The trial court’s abandonment of its role as a neutral arbiter deprived Appellant of
   his right to due course of law under Article I, § 19 of the Texas Constitution.

                                POINT OF ERROR 5

The trial court arbitrarily refused to consider the full range of punishment in these
   causes in violation of Appellant’s right to due process under the Fourteenth
                   Amendment of the United States Constitution.

                                POINT OF ERROR 6

The trial court arbitrarily refused to consider the full range of punishment in these
causes in violation of Appellant’s right to due course of law under Article I, § 19 of
                               the Texas Constitution.

                                POINT OF ERROR 7

 The Court should reform the judgment in Appellate Cause No. 05-14-01316-CR.
                                          2
                               STATEMENT OF FACTS

        Appellant pleaded guilty to his 2013 burglary of a habitation case. (RR2: 7).

The State offered, and the court admitted, Appellant’s signed, written, voluntary

judicial confession and stipulation of evidence. (CR2: 31; RR2: 7; State’s Exhibit

1). The court accepted Appellant’s plea, found the evidence sufficient to

substantiate his guilt, deferred further adjudication, and placed him on community

supervision for a period of five years. (CR2: 20-25, 26-29; RR2: 8).

       On July 21, 2014, the State filed a motion to adjudicate in Appellant’s 2013

burglary case alleging, among other violations, that Appellant committed a new

burglary of a habitation offense on June 25, 2014. (CR2: 49-50). A month later, on

July 24, 2014, a grand jury returned a true bill indictment for this new burglary

offense. (CR1: 7).

       On September 15, 2014, the trial court called both burglary cases. (RR3: 4).

After the trial court accused Appellant of being a member of Texas Syndicate and

expressed her displeasure with Appellant,2 the judge told Appellant that he should

reconsider taking the State’s offer of ten years. (RR3: 6). The judge further

explained to Appellant that she “might give him more than ten.” (RR2: 9).

Appellant’s attorney requested time to confer with his client about how to proceed



2
  POINTS OF ERROR 1 AND 2, RESTATED, infra, contain further details regarding the trial court’s
specific comments.
                                              3
in these cases. (RR3: 9). The hearing concluded at this point. (RR3: 9).

      Four days later, on September 19, 2014, Appellant’s hearing continued.

(RR4: 5). The judge asked Appellant, “And you still want to go open to the Court;

is that correct?” (RR4: 5). Appellant answered in the affirmative. (RR4: 6).

Appellant entered a plea of guilty to the new case and a plea of true to the

allegations in the motion to adjudicate in the 2013 burglary case. (CR1: 21-24;

CR2: 58-59; RR4: 7).

      The State offered, and the court admitted, Appellant’s signed, written,

voluntary judicial confession of stipulation of evidence in the new 2014 burglary

case. (CR1: 25; RR4: 7-8; State’s Ex. 1). The State offered, and the court admitted,

Appellant’s signed, written, voluntary plea of true in his probation case. (CR2: 59;

RR4: 8). The State requested that the court “take judicial notice of the entire

contents of the Court’s file.” (RR4: 8). The State rested without presenting any

other testimony or evidence. (RR4: 8).

      Appellant testified on his own behalf. (RR4: 8-30). He acknowledged that he

“picked up” the new burglary case while he was on probation for burglary. (RR4:

8). He explained that he had a substance abuse problem and was under the

influence of drugs and alcohol while committing the new burglary. (RR4: 9). He

consumed five Xanax pills, smoked some marijuana, and imbibed alcohol the day

of the offense. (RR4: 9, 13-18).

                                         4
      Appellant’s CATS3 evaluation reflected that he needed treatment for his

substance abuse problem. (RR4: 9-10). The CATS evaluation recommended

outpatient treatment, but Appellant testified that he would complete any type of

treatment the court ordered. (RR4: 9-10). He explained that his substance abuse

problem arose because he was depressed over his mother’s cancer diagnosis. (RR4:

11, 16, 23-25, 29). Appellant pleaded with the court to help him with his drug and

alcohol addiction. (RR4: 30, 52-54).

      Ultimately, the court rejected Appellant’s request for treatment and

probation. The court sentenced Appellant to 15 years’ imprisonment in each case.

(CR1: 27-29; CR2: 61-63; RR4: 55-57).

                           SUMMARY OF ARGUMENT

      Issue 1:      The trial judge’s numerous statements and comments about

Appellant’s chest tattoo and gang affiliation throughout the hearing were the

functional equivalent of witness testimony. Neither the State nor the defense

presented any evidence of Appellant’s gang membership or affiliation. The trial

court violated the unambiguous terms of Rule 605 of the Texas Rules of Evidence

by testifying as a witness in Appellant’s cases.




3
  CATS stands for Comprehensive Assessment and Treatment Services, a provider of substance
abuse and mental health services within the Dallas County Community Supervision and
Corrections Department. http://www.dallascounty.org/department/csc/cats.php (last visited
January 13, 2015).
                                            5
      Issue 2:     In determining Appellant’s punishment in these causes, the trial

court improperly considered facts not in evidence. Because the State did not

present any evidence of Appellant’s gang affiliation or activity, the trial court

abused its discretion by considering Appellant’s purported gang affiliation in

determining his punishment.

      Issues 3 and 4:     The trial court failed to remain neutral and detached in

these cases. The judge’s pervasive involvement in the hearing deprived Appellant

of his right to due process. The trial judge made frequent comments reflecting her

disdain towards Appellant, actively cross-examined Appellant, personally

concluded that Appellant was a gang member despite the fact that the State

presented absolutely no evidence of gang affiliation, and employed a bait and

switch approach regarding whether Appellant would or should call his mother to

testify on his behalf. The judge’s comments and conduct throughout the entire

proceeding demonstrate her adversarial position against Appellant which rendered

her biased against him. In light of the unique circumstances in these cases, the trial

judge demonstrated a failure to remain neutral and impartial in Appellant’s cases.

This Court should reverse and remand for a new punishment hearing in these

causes.

      Issues 5 and 6:     The record definitively establishes that the trial court

arbitrarily refused to consider any punishment less than ten years, which is

                                          6
significantly higher than the two-year minimum term of imprisonment applicable

in these cases. The trial court’s comments at the very beginning of the hearing and

prior to the presentation of any evidence demonstrate her refusal to consider any

term of imprisonment less than ten years in these cases. This failure to consider the

full range of punishment violated Appellant’s right to due process.

        Issue 7:     The Court should reform the judgment to properly reflect that

there was no plea bargain in Appellate Cause No. 05-14-01316-CR.

                                   ARGUMENT

                           POINT OF ERROR 1, RESTATED

    The presiding judge violated Rule 605 of the Texas Rules of Evidence by
                   testifying as a witness in Appellant’s cases.

                           POINT OF ERROR 2, RESTATED

 The trial court abused its discretion by considering evidence outside the record
                in deciding Appellant’s sentences in these causes.

                                  (Jointly Argued)

Facts

        At Appellant’s initial court setting on September 15, 2014, the judge called

both cases and asked Appellant how to pronounce his last name. (RR3: 4).

Appellant complied. (RR3: 4). The trial court then immediately engaged Appellant

in the following exchange:

              THE COURT:         What’s that tattoo you have on your
              chest?

                                          7
THE DEFENDANT:            Texas.

THE COURT:        Oh, man. So you’re ready to go down;
you’re Texas Syndicate, right?

THE DEFENDANT:            No, ma’am.

THE COURT:        You seem to be kind of young to be a
member of that. You’ve been to prison before?

THE DEFENDANT:            No, ma’am.

THE COURT:          You got it for your daddy, Texas
Syndicate?

THE DEFENDANT:            No, ma’am.

THE COURT:          Who do you know that’s in Texas
Syndicate?

THE DEFENDANT:            No one.

THE COURT:          You just love the hell out of Texas, is
that it? You just love it so much you’re gonna mess up
your chest for Texas. Wow. I don’t know. No wonder
you can’t make this probation

       ….

THE COURT:          Let me see your chest. I want to see
your tattoo.

THE DEFENDANT:            (Demonstrates.)

THE COURT:          What does that say, “O” what? What
are the initials?

THE DEFENDANT:            OCT.

THE COURT:          What?
                            8
THE DEFENDANT:           OCT.

THE COURT:        OCT?

THE DEFENDANT:           Yes, ma’am.

THE COURT:        What does that mean?

THE DEFENDANT:           Oak Cliff, Texas.

THE COURT:        No. Yeah. What did they offer you?

THE DEFENDANT:           Ten years.

THE COURT:         Yeah. I don’t know. Maybe you
should consider taking that.

MR. WARD [defense counsel]: We did a CATS eval,
Judge. The CATS eval said –

THE COURT:        When did you get that tat?

THE DEFENDANT:           When I was 15.

THE COURT:        Why?

THE DEFENDANT:            I was just – in my mind, at the
time, I thought it would be a good idea because I’ve been
in Dallas my whole life, in Oak Cliff. I’ve never moved
houses.

THE COURT:        Do you have a mommy?

THE DEFENDANT:           Yes, ma’am.

THE COURT:        How old is she?

THE DEFENDANT:           50.

THE COURT:        Do I look like her? I’m her same age.
                           9
             Do I remind you of your mommy?

             THE DEFENDANT:              No, ma’am.

             THE COURT:         No, because I’m not buying that story,
             not one bit. You were just so proud.

(RR3: 4-7). The hearing ended without any disposition when the court permitted

defense counsel an opportunity to discuss with his client how Appellant wished to

proceed in the case. (RR3: 9).

      When the hearing continued on September 19, 2014, the court admitted

Appellant’s written and voluntary judicial confession and plea of true. (CR1: 25;

CR2: 59; RR4: 7-8; State’s Ex. 1). The State then rested without presenting any

witnesses or other evidence. (RR4: 8).

      Appellant testified that he had a drug and alcohol problem and wanted

treatment to address his addiction. (RR4: 9-10). The CATS evaluation

recommended that Appellant receive outpatient treatment, but Appellant testified

that he would be willing to go to inpatient treatment if the court determined that

inpatient was a more appropriate course of action. (RR4: 9-10). Appellant

requested that he be continued on probation. (RR4: 10).

      The State cross-examined Appellant as to the specific details of the June 25,

2014, burglary, with special attention to his drug use that day. (RR4: 13-20, 24).

The State also focused on Appellant’s failure to comply with his probation

conditions. (RR4: 15-16, 25-26). On re-direct, Appellant testified that he wanted
                                          10
help with his drug addiction. (RR4: 28-30).

       The judge then engaged in extensive questioning of Appellant. (RR4: 30-

45). During the course of her questioning, the judge and Appellant had the

following exchange:

               THE COURT:          Okay. And then what about this
                       4
               weapon? Is that about the time that you got that tattoo on
               your chest, that gang tattoo, OTC; is that right?

               THE DEFENDANT:                OCT, yes, ma’am.

               THE COURT:       OCT. Excuse me. So around the same
               time that you were burglarizing these homes, that was
               about when you were with this gang; is that right?

               THE DEFENDANT:            I wasn’t with a gang, ma’am. I
               just had money and – and since I had – that’s how I
               decided to use it. Another dumb decision.

               THE COURT:         Okay. All righty. So you tattoo on
               your chest Texas – and what else does it say?

               THE DEFENDANT:                OCT. That’s it.

               THE COURT:         I can’t remember. Can I take a look at
               it again? Let me see what it says.

               THE DEFENDANT:                (Demonstrates.)

               THE COURT:             Yeah. Okay. All righty. Okay.

(RR4: 35-36).



4
 Although not entirely clear at this juncture of the proceeding, it appears the weapon related to a
prior offense. (RR3: 9; RR4: 35).
                                                11
      After additional extensive questioning from the judge, defense counsel and

the State made closing arguments. (RR4: 36-52, 52-55). The focus of defense

counsel’s argument was on intervention for drug treatment. (RR4: 52-54). The

State argued that Appellant’s problem was not related to substance abuse but to

bad decisions and judgment. (RR4: 54-55).

      At the conclusion of these arguments, the court sentenced Appellant. (RR4:

55-58). During sentencing he judge made the following comments:

            … I thought maybe after you got a little taste of what I
            was talking about that you would then listen to your
            lawyer’s advice, that maybe at least you’d start saying
            the right things. But you just can’t help yourself; you just
            can’t help it. And maybe your mother will be glad that
            now – that she’ll know where you are all the time and she
            won’t be worried about you out and about, hanging out
            with gangsters or whoever you hang out with, breaking
            into people’s homes, risking getting killed. Well, I guess
            you could get killed in prison, but you already knew that,
            right?

(RR4: 57-58) (emphasis added).

Analysis

   I. The judge testified in violation of Rule 605.

      A. Applicable Law

      Rule 605 provides that “[t]he judge presiding at the trial may not testify in

that trial as a witness. No objection need be made in order to preserve the point.”

TEX. R. EVID. 605. The language of this rule is unambiguous in its prohibition.

                                        12
Hensarling v. State, 829 S.W.2d 168, 170 (Tex. Crim. App. 1992). Its purpose is to

preserve the judge’s impartiality. Id.; see also O’Quinn v. Hall, 77 S.W.3d 438,

448 (Tex. App.—Corpus Christi 2002, no pet.).

      In reviewing whether the trial court violated Rule 605, the question is

whether the judge’s statements of fact are essential to its judicial function or are

the functional equivalent of witness testimony. Hammond v. State, 799 S.W.2d

741, 746 (Tex. Crim. App. 1990); see also Lawrence v. State, No. 05-10-00083-

CR, 2011 Tex. App. LEXIS 2971, *8 (Tex. App.—Dallas Apr. 20, 2011, pet. ref’d)

(mem. op., not designated for publication). Statements related to the court’s

judicial function do not violate Rule 605. See, e.g., Hammond, 799 S.W.2d at 946-

47 (holding that the judge’s instruction to the court clerk to inform the jurors that

the defendant had escaped after the jury rendered a guilty verdict did not constitute

testimony as to the issue of the defendant’s future dangerousness; rather, because

the judge’s statements related to the jurors’ safety and were in furtherance of his

essential judicial function, the statements were not testimony); Lawrence, 2011

Tex. App. LEXIS 2971 at *8-9 (finding that the trial judge’s statements were not

testimony because he merely recounted the facts he heard on the record without

injecting any new facts into the proceeding). Judicial rulings and explanations of

judicial rulings do not constitute testimony. Lawrence, 2011 Tex. App. LEXIS

2971 at *10.

                                         13
      On the other hand, statements of fact that are the equivalent of witness

testimony violate Rule 605. See O’Quinn, 77 S.W.3d at 447-48 (“The trial court’s

determination of the date of notice was based on facts provided to the court by its

staff, facts that the court provided at the hearing. This created the appearance of

bias which Rule 605 seeks to prevent.”). Statements that inject new facts outside

the record constitute judicial testimony. Cf. Lawrence, 2011 Tex. App. LEXIS

2971 at *9 (noting that the judge’s comments did not violate Rule 605 because the

comments did not inject new facts into the proceeding).

   B. Application of Law to the Facts

      The judge’s multiple conclusory statements that Appellant was a member of

the gang Texas Syndicate injected new facts outside the record of these cases. The

State presented no evidence that Appellant was in any gang. Appellant did not

raise any issue related to gang membership. When the judge repeatedly questioned

Appellant about the tattoo on his chest, Appellant consistently maintained that he

was not a gang member. (RR3: 4-7; RR4: 35-36). The record contains no other

evidence to refute Appellant’s statement that he was not a gang member.

      The judge’s numerous comments and conclusions about Appellant’s

purported gang affiliation cannot be construed as a judicial ruling or part of the

court’s judicial function. Rather, the judge’s statements of fact were the functional

equivalent of witness testimony. The only statements in the record regarding

                                         14
Appellant’s gang affiliation, if any, came from the judge herself. Therefore, the

judge’s comments violated Rule 605’s absolute prohibition against judicial

testimony.

   II. The trial court abused its discretion by considering Appellant’s
       purported gang affiliation in determining Appellant’s sentences.

      A. Applicable Law

      During the punishment phase of trial, evidence as to any matter may be

offered if the trial court deems it relevant to sentencing. TEX. CODE CRIM. PROC.

art. 37.07, § 3(a). Appellant recognizes the trial court’s broad discretion to admit

evidence the court deems relevant to sentencing, including evidence of the

defendant’s reputation and character. Id.; Hayden v. State, 296 S.W.3d 549, 552

(Tex. Crim. App. 2009). A trial court abuses its discretion when it bases a ruling on

facts outside the record. O’Quinn, 77 S.W.3d at 446; see also In re Salgado, 53

S.W.3d 752, 758 (Tex. App.—El Paso 2001, orig. proceeding) (noting that a trial

court abuses its discretion when its ruling is based on factual assertions not

supported by the record).

      Evidence of gang membership is relevant and admissible if the factfinder is

(1) provided evidence of the defendant’s gang membership; (2) provided evidence

of the gang’s character and reputation; (3) not required to determine if the

defendant committed bad acts or misconduct; and (4) only asked to consider the

reputation or character of the defendant. Beasley v. State, 902 S.W.2d 452, 456
                                         15
(Tex. Crim. App. 1995); see also Jackson v. State, Nos. 05-13-00579-CR and 05-

13-00580-CR, 2014 Tex. App. LEXIS 9059, at *8-9 (Tex. App.—Dallas Aug. 14,

2014, no pet.) (mem. op., not designated for publication) (applying the Beasley test

to gang evidence offered during the punishment stage). Once the State establishes

gang membership, it must then present evidence of the activities of that particular

gang generally so that the factfinder can determine whether the defendant’s

membership in that particular gang is a positive or negative aspect of his character.

Beasley, 902 S.W.2d at 456; Hickman v. State, Nos. 05-10-01250-CR and 05-10-

01251-CR, 2013 Tex. App. LEXIS 9323, at *6 (Tex. App.—Dallas July 29, 2013,

no pet.) (mem. op., not designated for publication).

      B. Application of Law to the Facts

      Appellant recognizes that gang evidence may be relevant character or

reputation evidence. However, it is axiomatic that the State introduce such

evidence against the defendant during the hearing. In Appellant’s cases, the State

presented no evidence of Appellant’s affiliation with a gang, if any. Appellant did

not offer any testimony that would have opened the door to this gang evidence.

The trial judge introduced the gang evidence on her own accord.

      Even if this Court were to consider the judge’s conclusory statements

regarding Appellant’s gang affiliation as evidence, the statements still fail the

Beasley test for admissibility. The judge did not have any actual evidence of

                                         16
Appellant’s gang membership.5 Indeed, the judge seemed unfamiliar with “OCT”

and offered no connection between “OCT” and Texas Syndicate, if there is any.6

Nor did the judge state any facts or information supporting her conclusion that

Appellant’s Texas tattoo with “OCT” is a tattoo associated with Texas Syndicate.7

Furthermore, she did not present any evidence of the activities of Texas Syndicate

so that she could determine whether Appellant’s alleged membership in that gang

was a positive or negative aspect of his character. The judge’s own personal

conclusion that Appellant belonged to Texas Syndicate based on her viewing of

Appellant’s chest tattoo was not sufficient evidence to satisfy the Beasley test.

Therefore, the gang evidence in appellant’s cases was not relevant or admissible

punishment evidence in Appellant’s cases, and the trial court abused its discretion

in considering Appellant’s unsubstantiated gang affiliation in deciding his


5
  Typically, the State presents gang evidence through expert testimony. See, e.g., Harris v. State,
No. AP-76,810, 2014 Tex. Crim. App. Unpub. LEXIS 517, at *57-63 (Tex. Crim. App. 2014)
(not designated for publication) (finding that the trial court did not abuse its discretion in
admitting expert testimony on the defendant’s gang tattoos); Jackson, 2014 Tex. App. LEXIS
9059, at *9-10 (finding that the Dallas police detective’s testimony as an expert on gangs and
gang tattoos sufficiently satisfied the Beasley test); Jackson v. State, 314 S.W.3d 118, 128 (Tex.
App.—Houston [1st Dist.] 2010, no pet.) (noting that evidence of a gang’s character and
reputation generally is usually offered through expert testimony of a law enforcement officer
familiar with that gang).
6
  Texas Syndicate is a prison gang. See, e.g., Martinez v. State, 327 S.W.3d 727, 731 (Tex. Crim.
App. 2010); Urbano v. State, 837 S.W.2d 114, 116 (Tex. Crim. App. 1992); Gonzales v. State,
No. 05-02-00478-CR, 2003 Tex. App. LEXIS 6740, at *15 (Tex. App.—Dallas Aug. 6, 2003,
pet.        ref’d)       (not        designated       for        publication);     see       also
http://www.prisonoffenders.com/texas_syndicate.html (last visited January 21, 2015). Appellant
testified that he had never been to prison. (RR3: 4).

                                                17
sentences.

                         POINT OF ERROR 3, RESTATED

The trial court’s abandonment of its role as a neutral arbiter deprived Appellant
of his right to due process under the Fourteenth Amendment of the United States
                                   Constitution.

                         POINT OF ERROR 4, RESTATED

The trial court’s abandonment of its role as a neutral arbiter deprived Appellant
of his right to due course of law under Article I, § 19 of the Texas Constitution.

                                (Jointly Argued)

Applicable Law

      A defendant has a due process right to a fair trial in a fair tribunal. In re

Murchison, 349 U.S. 133, 136 (1955); U.S. CONST. amend. XIV; see also TEX.

CONST. art. I, § 19 (providing for due course of law). Due process requires that a

criminal trial be held before a neutral and detached judge with no actual bias

against the defendant. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Brumit v.

State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). This same due process right

to a trial before a neutral and detached hearing body applies to open plea hearings

and probation revocation hearings. See, e.g., Grado v. State, 445 S.W.3d 736, 739

(Tex. Crim. App. 2014) (recognizing that due process requires a revocation hearing

before a neutral and detached judge); Peterson v. State, No. 05-12-01417-CR, 2013

Tex. App. LEXIS 13282, at *1-11 (Tex. App.—Dallas Oct. 24, 2013, no pet.)

(mem. op., not designated for publication) (evaluating whether the trial court’s

                                        18
comments made during the defendant’s open plea hearing violated his right to due

process); Allen v. State, No. 05-12-00672-CR, 2013 Tex. App. LEXIS 4701, at *1-

5 (Tex. App.—Dallas Apr. 11, 2013, no pet.) (mem. op., not designated for

publication) (evaluating whether the trial court’s cross-examination of the

defendant’s testimony during his open plea hearing violated his right to due

process); Guin v. State, 209 S.W.3d 682, 687 (Tex. App.—Texarkana 2006, no

pet.) (noting that due process requires the trial court to maintain its neutral and

detached role when determining whether the defendant should be placed on

community supervision).

      Appellant recognizes that the trial court has broad discretion over the

conduct of court proceedings. See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194,

199 (Tex. Crim. App. 2003); Wilson v. State, Nos. 05-10-01362-CR, 05-10-01363-

CR, and 05-10-01364-CR, 2011 Tex. App. LEXIS 9702, at *5 (Tex. App.—Dallas

Dec. 12, 2011) (mem. op., not designated for publication); Guerrero v. State, 143

S.W.3d 283, 284 (Tex. App.—Waco 2004, no pet.). However, this discretion is not

unfettered, and the judge must maintain a neutral and detached role so as not to

violate a defendant’s constitutional right to an impartial judge. Wilson, 2011 Tex.

App. LEXIS 9702, at *5; Bethany v. State, 814 S.W.2d 455, 462 (Tex. App.—

Houston [14th Dist.] 1991, no pet.).

      A judge should not act as an advocate or adversary for any party. Brown v.

                                        19
State, 122 S.W.3d 794, 797 (Tex. Crim. App. 2003); Dockstader v. State, 233

S.W.3d 98, 108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d); Taylor v.

State, Nos. 05-13-01369-CR and 05-13-01370-CR, 2014 Tex. App. LEXIS 13918,

at *7-9 (Tex. App.—Dallas Dec. 30, 2014, no pet. h.) (mem. op., not designated

for publication). To reverse a judgment based on a judge’s improper conduct or

comments during a proceeding, an appellate court must find (1) that the judicial

impropriety was in fact committed, and (2) probable prejudice to the complaining

party. Dockstader, 233 S.W.3d at 108.

Preservation

      Appellant anticipates that the State may argue that Appellant did not

preserve these issues for appellate review because he did not object to the trial

court’s comments and questions. Appellant recognizes that when no objection is

made to the remarks and conduct of the trial court may not be challenged on appeal

unless they are fundamentally erroneous. See Brewer v. State, 572 S.W.2d 719,

721 (Tex. Crim. App. [Panel Op.] 1978); Peterson, 2013 Tex. App. LEXIS 13282,

at *6-7; Wilson, 2011 Tex. App. LEXIS 9702, at *4-5.

      The pervasive and harmful nature of the trial court’s comments and active

involvement in Appellant’s cases constitutes fundamental error and, therefore, an

objection was not required to preserve error. See Jasper v. State, 61 S.W.3d 413,

420 (Tex. Crim. App. 2001) (noting that an objection is not required to preserve

                                        20
fundamental error); Moreno v. State, 900 S.W.2d 357, 359 (Tex. App.—Texarkana

1995, no pet.) (noting that harm that was so egregious that the defendant was

denied a fair and impartial trial constitutes fundamental error and does not require

preservation). Under the unique circumstances and facts of the instant cases, no

objection was required. This Court should address Appellant’s arguments on the

merits.

Analysis

      Throughout the hearing in Appellant’s cases, the trial judge was an active

participant to a degree that exceeded the permissible scope of her role in

determining Appellant’s sentences. The judge’s conduct breached the bounds of a

neutral and detached arbiter of justice.

   A. The trial judge’s comments throughout the entire hearing reflect a
      failure to remain neutral and detached.

      The judge made numerous comments throughout the hearing and prior to

closing argument by either party. The following comments, though not an

exhaustive list, illustrate the types and tenor of the comments the judge made

throughout the entire proceeding.

      1. Prior to accepting Appellant’s pleas.

           • “Well, the good part is that they didn’t blow your head off. Well, I
             don’t know. There are some things worse than death. Going to a
             Texas prison for ten years, yeah, I think I’d rather be dead than do
             that.” (RR3: 7-8).

                                           21
          • “Well, I don’t know. Wow. Oh, my God, and your mother has cancer,
            and here you are making things worse for her. That’s gonna make me
            so mad. If I hear about that, I’m going to be so pissed. Oh, my God.
            She’s dying of cancer, and he’s getting high and breaking into
            people’s homes.” (RR3: 8).

          • The judge asked Appellant who was taking care of his mother, and he
            responded, “She’s out there alone.” (RR3: 8). The judge then asked
            Appellant what his mother had done to make him treat her that way.
            (RR3: 8). Appellant answered that she had not abused him and was
            not mean to him. (RR3: 8-9). The judge then stated, “Yeah. Wow.
            Wow. Wow. Wow. How are we going to clear that up? I don’t know. I
            don’t know. I’m thinking ten might be good for you than going open
            to me.” (RR3: 9).

       2. During Appellant’s testimony.

          • In response to Appellant’s testimony that his girlfriend begged him
            not to leave the house on the night of the new burglary offense and
            that his mother did not know he was leaving the house, the judge said,
            “Wow. She was crying begging you to stay?” and “Wow. That’s
            cold.”8 (RR4: 20-21).

          • When the State concluded its cross-examination of Appellant and
            passed the witness, the judge said, “Wow. That’s incredible, how you
            see yourself.” (RR4: 28).

       3. After both the defense and the State concluded direct and cross-
          examination of Appellant.

          • “Okay. Well, this is what I’m thinking, Mr. Gayton. You’re very, very
            scary, because you have a mother with cancer who’s dying, who
            you’ve been disappointing your whole life by violating the law, okay.
            She had cancer when you started getting wasted, if what you’re telling
            me is true. You had a girlfriend that was there that you traumatized,
            that she was crying – I don’t know why.” (RR4: 42-43).


8
 Appellant lived with his mother, and his girlfriend stayed with him at the time of the 2014
burglary case. (RR4: 20, 37-38).
                                            22
      4. After closing arguments.

         • “Mr. Gayton, I know that you probably, seriously, feel like you’ve
           been victimized your whole life, that you’ve been a victim of your –
           of your circumstances. You feel like you were justified in burglarizing
           because your daddy left you; you didn’t want your mother supporting
           you. Yeah, maybe you do feel depressed about that stuff, but, you
           know, it’s not the way to be.” (RR4: 55).

         • “You know, it was horrible that you – you’ve been self-centered your
           whole life, always wanting to do just whatever you want to do, having
           a total disregard for your family, continuingly upsetting your family
           by getting arrested by going out and burglarizing homes. You stand
           there and really think that you’re gonna be able to convince me – even
           after your lawyer told you that I thought you needed to take the ten,
           you stand there, thinking that you know better than your lawyer and
           that you know better than everyone else in the world what – what
           needs to happen. One burglary? Sure, let’s give you probation. Two
           burglaries as a kid? Yeah, let’s send you to Medlock, try and get you
           straight. Your first burglary of a habitation, that’s really nice of the
           DAs to give you a shot at it, probation. But you drinking, smoking,
           taking Xanax while you’re on felony probation, looking at 20 years in
           prison, and then not caring about your mother’s health one bit, going
           out and burglarizing and, furthermore, not caring that she’s having to
           go through radiation treatments and chemo, that’s not important.
           What’s important is for her to get her butt down here to try and save
           your butt. That is some of the most self-centered, most selfish
           thinking that I have ever heard.” (RR4: 55-56).

      These remarks are a clear indication that the judge was biased against

Appellant even before taking Appellant’s pleas in these cases. While Appellant

recognizes that disapproving or critical remarks in and of themselves generally do

not support a finding of bias or partiality, the judge’s numerous comments

throughout Appellant’s hearing clearly reflect disdain towards Appellant. These

remarks established a biased tone against Appellant throughout the entire
                                       23
proceeding. The judge’s numerous comments reveal such a high degree of

antagonism against Appellant so as to render her ability to make fair judgment

impossible. Charboneau v. State, No. 05-13-00340-CR, 2014 Tex. App. LEXIS

13923, at *7-8 (Tex. App.—Dallas Dec. 30, 2014, no pet. h.) (mem. op., not

designated for publication); Dockstader, 233 S.W 3d at 108.

   B. The trial judge’s active participation in cross-examining Appellant
      reflects a failure to remain neutral and detached.

      The trial judge actively engaged in cross-examination of Appellant

throughout the hearing. Appellant recognizes that a judge may question a testifying

witness to clarify a particular point or to have the witness repeat something the

judge could not hear. Wilson, 2011 Tex. App. LEXIS 9702, at *5; Moreno, 900

S.W.2d at 359. However, when a judge exceeds this permissible scope of

questioning, two dangers arise: (1) the judge may convey his opinion of the case

and ultimately influence the jury’s decision, or (2) the judge may become an

advocate in the adversarial process and lose the neutral and detached role required

for the fact finder and the judge. Moreno, 900 S.W.2d at 359.

      The trial court must maintain its neutral and detached role when asking

questions of a testifying witness. Guin, 209 S.W.3d at 687. A judge may not

assume the role of a prosecutor and become an advocate for the State. Brown, 122

S.W.3d at 797; Dockstader, 233 S.W.3d at 108; Wilson, 2011 Tex. App. LEXIS

9702, at *7; Avilez v. State, 333 S.W.3d 661, 673 (Tex. App.—Houston [1st Dist.]
                                        24
2010, pet. ref’d).

      The judge’s cross-examination of Appellant was much more extensive than

the prosecutor’s cross-examination. (RR4: 30-45). By engaging in this extensive

cross-examination of Appellant, the judge usurped the State and assumed the role

of prosecutor and investigator. The judge’s cross-examination of Appellant in an

effort to solicit specific facts and details not raised by either the State or the

defense exceeded the permissible bounds of the kinds of questions a judge may ask

a witness. The judge’s active participation in the hearing eclipsed her obligation to

remain neutral and detached.

   C. The trial judge’s consideration of Appellant’s purported gang
      membership which was wholly unsupported by any evidence reflects a
      failure to remain neutral and detached.

      The judge also demonstrated her biased stance against Appellant when she

began the hearing by personally investigating Appellant’s chest tattoo. (RR3: 4-7).

Not only did she ask detailed questions about his tattoo and request to see his chest

tattoo on two occasions, she also formed her own opinion that this tattoo meant

Appellant was in a gang despite his consistent denial. See POINTS OF ERROR 1 AND

2, RESTATED supra; (RR3: 4-7; RR4: 35-36). The State did not present any

evidence to rebut Appellant’s claim that he was not in a gang. The judge’s specific

comment during sentencing that Appellant’s mother would now not have to worry

about Appellant “hanging out with all these gangsters” shows that the judge’s

                                         25
personal conclusion that Appellant was in a gang influenced her sentencing

decision. (RR4: 5). Consequently, the judge demonstrated a complete failure to

remain neutral and detached by considering these extrajudicial matters in deciding

Appellant’s sentences. See Taylor, 2014 Tex. App. LEXIS 13918, at *7-9

(reversing and remanding the cases because the record demonstrated that the trial

judge’s opinion based on extrajudicial information influenced her sentencing

decision and she did not exhibit the actions of an unbiased judicial officer).

   D. The trial judge’s bait and switch approach towards Appellant’s desire
      to call his mother to testify as a witness on his behalf reflects a failure to
      remain neutral and detached.

      During the course of the trial judge’s extensive cross-examination of

Appellant, she engaged Appellant in the following exchange:

             THE COURT:         …. How many times have you been
             under rules of a judge? And you’ve never been able to
             comply with probation, right? You’ve never been able to
             make it?

             THE DEFENDANT:            Yes, ma’am.

             THE COURT:        You don’t have your mom here. You
             don’t have your girlfriend here. Nobody here to back up
             what you’re saying.

             THE DEFENDANT:            I didn’t know when my court
             date was.

             THE COURT:      I’ll gladly give you a continuance.
             Mr. Ward, you want a continuance to bring all these
             witnesses down?

                                          26
MR. WARD:          Your Honor, well, if he – if that’s
what he wants, that’s fine.

THE COURT:         Or I can just call your mom right now.

MR. WARD:           Your Honor, we had – and just for the
record, we had – we had reset this case the last time, and
I recall being back there, giving him the Court date so as
to allow him time to contact his mother, let her know
what’s going on.

THE COURT:         How much time do you need, sir? I’d
love to hear from your mom and your girlfriend.

THE DEFENDANT:          They should come, maybe –
I’m pretty sure tomorrow, unless something happens. But
she –

THE COURT:         Oh, so you’ve been talking to her?

THE DEFENDANT:           Yes, ma’am, she –

THE COURT:         Did you tell her about this court date?

THE DEFENDANT:             No, ma’am. I didn't know that
this was gonna be the exact date that I was gonna come
to court. I just knew this week I was coming back.

THE COURT:         But you didn’t call to ask her to come
down?

THE DEFENDANT:           I didn’t have – I didn’t know –

THE COURT:         And she’s able to walk around and
everything, right?

THE DEFENDANT:           Yes, ma’am, when she’s not in
pain. She has certain times throughout the day when she
tells me that –

                           27
THE COURT:         And your – she’s been visiting you in
the jail?

THE DEFENDANT:           Yes, ma’am.

THE COURT:         And your girlfriend has been visiting
you?

THE DEFENDANT: Yes, ma’am, they come together.

THE COURT:         Your siblings?

THE DEFENDANT:           They came once.

THE COURT:         What do y’all talk about? Does your
mom cry?

THE DEFENDANT:           Yes, ma’am.

THE COURT:         Does your girlfriend cry?

THE DEFENDANT:           Yes, ma’am.

THE COURT:          Does your girlfriend say, look, I told
you not to go out; I told you not to be drinking?

THE DEFENDANT:           Yes, ma’am.

THE COURT:          I bet your mom is tired of crying for
you. What else do you think your mother’s gonna tell me,
other than cry for – beg for mercy, maybe, for you?

THE DEFENDANT:           I don’t know, ma’am.

THE COURT:         You don’t know what she’s gonna
say?

THE DEFENDANT:           No, ma’am.



                           28
THE COURT:         Do you know what your girlfriend’s
gonna say –

THE DEFENDANT:            No, ma’am.

THE COURT: -- other than just cry for you again?

THE DEFENDANT:            No, ma’am.

THE COURT: Okay.          So you want a continuance?

THE DEFENDANT:            Yes, ma’am.

THE COURT:           All right. Well, we're gonna do that.
I’m accepting your pleas. I’m finding that you’re
mentally competent to enter your pleas. I’m finding that
your pleas are being made freely and voluntarily. Based
on your pleas and on the evidence presented in each of
these cases, there is enough for the Court to find you
guilty as charged in the 14 – 2014 case, and I’m finding
all the allegations – in the motion to proceed, I’m finding
all of them true. I’m taking no further action. I am
passing your case to give you and your attorney the –
attorney the opportunity to present more evidence that
might be helpful. Mr. Ward, I mean, he doesn’t know
what his witnesses are going to say. Do you want a
continuance?

MR. WARD:          Your Honor, if you would like – you
would like them to come, I will do another continuance
to allow more time for them to come to the next date that
he will be informed of as well.

THE COURT:            Did your lawyer give you a copy of
the pass slip, sir, last time?

THE DEFENDANT:            No, ma’am.

THE COURT:         No? And you don’t remember him
telling you anything about your court date?
                            29
THE DEFENDANT:          I mean, he told me I was going
to come back this week, in a couple of days, but I didn’t
know the exact date.

THE COURT:         And you didn’t talk about it with your
mom? You’ve never talked with your mom or your
girlfriend about coming down to testify for you? Never?

THE DEFENDANT:        No, ma’am. I didn’t have
money on the phone to call them to let them know to
notify them.

THE COURT:         There’s always a reason for you not to
do the right thing. All righty, if you want to put them
through that. Yeah, you want me to call them to see if
they’ll come down?

THE DEFENDANT:           Yes, ma’am.

THE COURT:          Yeah. Let me call right now. Ruth
Skinner, is that your mom’s name?

THE DEFENDANT:           Yes, ma’am.

THE COURT:       Let me make sure. How come you got
two phone numbers for your mom?

THE DEFENDANT:           I don’t recall putting two
numbers down.

THE COURT:        What?

THE DEFENDANT:           The house number is 337-1948.

THE COURT:       Oh, I don’t have either of those.
What’s your mother’s number?

THE DEFENDANT:           214-337-1948.



                           30
            THE COURT:        Don’t you have to call collect to talk
            to your mother? They don’t do that anymore?

            THE DEFENDANT:            I used     those    60   seconds
            already. I can’t call anymore.

            (The Court places telephone call.)

            THE COURT:          Well, she had radiation this morning,
            and she’s going to have radiation on Monday. She’d be
            glad to come down and testify for you, but I think she’s
            gonna have chemo on the 25th, so she might still be a
            little under the weather. You still want her to come?

            THE DEFENDANT:            No, ma’am.

            THE COURT:         All righty. Mr. Ward, do you want –
            either argue for a motion for continuance or argue for
            what I’m going to do as far as punishment?

            MR. WARD:          Well, may I speak with my client
            first?

            THE COURT:         Go ahead. Go talk to your lawyer in
            private.

(RR4: 45-50). The judge took a brief recess. (RR4: 50).

      The judge then engaged in the following exchange with Appellant and

defense counsel:

            THE COURT:      Back on the record. Mr. Ward, do you
            want to proceed, or do you want to ask for a
            continuance?

            MR. WARD:         Judge, I would ask the Court for a
            continuance so as to allow his mother a chance to come
            here and –

                                        31
THE COURT:         All righty, then.

MR. WARD:          That’s after consulting with my client,
Your Honor.

THE COURT:          Well, okay. Well, then, just get with
the DA and find out when a good day is for this woman
to come down. She’s probably gonna have to check with
her 30-year-old daughter that’s been taking care of her, to
see if she can bring her down. I don’t know how soon
she’ll be able to get up and come to the courthouse after
radiation and after chemo or whether she’ll have to
consult with her doctor to see if this is even a healthy
environment for her to be around, seeing that she’s going
to be in such a delicate position. But we’ll go ahead and
grant you a continuance.

THE DEFENDANT:            Thank you, Your Honor.

THE COURT:         Oh, you should not be thanking me.
If you think that you’re impressing me by dragging
your dying mother down here to testify for you, you’re
doing just the opposite, sir. Go with the sheriff.

      ….

THE COURT:         Back on the record.

      ….

THE COURT:       Just so the record is clear, now you’ve
changed your mind? Now you want to go ahead and do it
today?

THE DEFENDANT:            Yes, ma’am.

THE COURT:         Because you don’t want me to ding
you for dragging your poor mother down here to try and
get you out of your mess yet a tenth time; is that right?

                            32
             THE DEFENDANT:            Yes, ma’am.

             THE COURT:         All righty. Mr. Ward.

(RR4: 50-52) (emphasis added).

      As evident from the trial court’s extensive discussion with Appellant and his

attorney about calling Appellant’s mother to testify on his behalf, the trial court

baited Appellant into requesting a continuance so that his mother could testify on

his behalf. It is obvious from the judge’s comments that she held it against

Appellant for not having any witnesses to testify on his behalf to support him.

Based on this information, the judge concluded that Appellant would not be

successful on probation. It was reasonable for Appellant to infer from the judge’s

comments that the trial court would not consider probation because he had no

support system in his life.

      The judge then held it against Appellant when he requested the continuance

so his mother could testify for him. The judge chastised him for wanting to bring

his dying mother to testify on his behalf even though he was simply trying to

comply with the judge’s strong suggestion that his mother testify on his behalf.

      The record demonstrates that the judge placed Appellant in a no-win

situation: the judge unequivocally suggested that Appellant’s decision not to call

his mother to testify on his behalf represented his lack of support at home, then

made clear that Appellant’s decision to call his mother represented his utter lack of

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good judgment because his mother was sick with cancer. This conduct does not

reflect the actions of an unbiased judicial officer.

   E. Conclusion.

        Under the unique circumstances of these cases, the judge improperly

injected herself into the proceedings to a degree that prevented her from remaining

neutral and detached in these cases. The judge’s adversarial stance and active

involvement in Appellant’s hearing was prejudicial to Appellant because the judge

did not consider the actual evidence presented by the State and the defense.

Consequently, Appellant was deprived of his right to a fair and impartial

sentencing hearing. This Court should reverse and remand these causes for a new

punishment hearing.

                           POINT OF ERROR 5, RESTATED

  The trial court arbitrarily refused to consider the full range of punishment in
           these causes in violation of Appellant’s right to due process.

                           POINT OF ERROR 6, RESTATED

  The trial court arbitrarily refused to consider the full range of punishment in
       these causes in violation of Appellant’s right to due course of law.

                                  (Jointly Argued)

Facts

        After calling both cases, but before Appellant entered his pleas and before

presentation of any evidence or testimony, the trial court asked defense counsel,


                                          34
“What happened? Why are we here? What are we doing?” (RR3: 5). Appellant’s

attorney responded, “We’re going open before the Court, asking that the Court

allow him to – my client to stay on probation.” (RR3: 4).

      A few moments later in the proceeding, and after additional discussion of

Appellant’s chest tattoo, the judge asked Appellant, “What did [the State] offer

you?” (RR3: 5-6). Appellant responded that the State’s offer was ten years. (RR3:

6). The judge responded, “Yeah. I don’t know. Maybe you should consider taking

that.” (RR3: 6). At this point, Appellant’s attorney attempted to inform the court

about the findings in the CATS evaluation, but the court interrupted and started

asking more questions about Appellant’s chest tattoo. (RR3: 6-7).

      After further discussion of matters not relevant to this point of error (see

POINTS   OF   ERROR 4   AND   5, Restated supra), the judge said, “Yeah. Wow. Wow.

Wow. Wow. How are we going to clear that up? I don’t know. I don’t know. I

don’t know. I’m thinking ten might be good for you than going open to me. Hold

on. Let me see. Juvenile, two counts – oh, no, you were burglarizing as a

juvenile?” (RR3: 9). Appellant admitted he had juvenile cases. (RR3: 9). The judge

then said, “Seriously, I might give him more than ten. Do you want to keep going

open? He’s just a thug. Don’t gave a shit about anything. Doesn’t give a shit about

his mommy. Guns, breaking, same day – same thing different year, no.” (RR3: 9).

The court permitted defense counsel an opportunity to discuss with Appellant his

                                           35
course of action. (RR3: 9). At the end of the hearing four days after this initial

exchange, the court sentenced Appellant to fifteen years in each case. (RR4: 55-

57).

Applicable Law

       The federal and state constitutions guarantee the right to a fair trial.9 U.S.

CONST. amend. XIV; TEX. CONST. art. I, §19. Due process requires that a judge

remain neutral and detached when assessing punishment. Gagnon, 411 U.S. at 786;

Brumit, 206 S.W.3d at 645. A trial court’s arbitrary refusal to consider the entire

punishment range applicable to the case or to consider the evidence and impose a

predetermined sentence constitutes a denial of due process. Grado, 445 S.W.3d at

739; Jefferson v. State, 803 S.W.2d 470, 471 (Tex. App.—Dallas 1991, no pet.).

Analysis

       The record affirmatively shows that the trial judge arbitrarily failed to

consider the full range of punishment in Appellant’s cases. The minimum term of

imprisonment in these second degree felonies is two years. TEX. PENAL CODE §

12.33 (providing that the punishment range for a second degree felony is two to

twenty years’ imprisonment); § 30.02(c)(2) (providing that burglary of a habitation



9
 Appellant does not argue that his rights under the Texas Constitution are greater than his rights
under the federal constitution. Earley v. State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi
1993, pet. dism’d as improvidently granted) (noting that “[d]ue process of law requires a neutral
and detached hearing body or officer. The Texas Constitution requires no less.”) (citations
omitted).
                                               36
is a second degree felony). Without hearing any testimony whatsoever, the trial

judge arbitrarily established her baseline minimum sentence at ten years by telling

Appellant he should take the State’s ten-year offer. Ten years far exceeds the

minimum two-year term of imprisonment applicable in these cases. The trial

court’s failure to consider the entire punishment range of two to twenty years

violated Appellant’s right to due process and right to due course of law. This Court

should reverse and remand for a new punishment hearing in both causes. Ex parte

Brown, 158 S.W.3d 449, 456-57 (Tex. Crim. App. 2005) (finding that the trial

judge arbitrarily failed to consider the entire punishment range and remanding the

case to the trial court for a new sentencing hearing).

                           POINT OF ERROR 7, RESTATED

The Court should reform the judgment in Appellate Cause No. 05-14-01316-CR.

      This Court should exercise its authority to correct the judgment in Appellate

Cause No. 05-14-01316-CR. This Court has the authority to amend the judgment

to “speak the truth” when it has the necessary data and information to do so. TEX.

R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993);

Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d).

The record provides the necessary information and data for this Court to correct the

inaccuracy in the judgment in Appellate Cause No. 05-14-01316-CR.

      The judgment in Appellate Cause No. 05-14-01316-CR reflects the


                                          37
following: “Terms of Plea Bargain: 15 years TDC.” (CR2: 61-63). However, the

record clearly reflects that the trial court did not sentence Appellant pursuant to a

plea bargain agreement with the State. Appellant entered an open plea of true to the

State’s motion to adjudicate and requested that the judge continue his deferred

adjudication probation. (CR2: 58-59; RR3: 5; RR4: 5-6). The trial court’s

certification of Appellant’s right to appeal also reflects that this case was not a plea

bargain case. (CR2: 60). Because the record unequivocally establishes that the trial

court sentenced Appellant pursuant to an open plea rather than a plea bargain

agreement with the State, this Court should reform the judgment in Appellate

Cause No. 05-14-01316-CR.




                                          38
                                    PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

Court reverse and remand both causes for a new punishment hearing. In the

alternative, Appellant prays that this Court reform the judgment in Appellate Cause

No. 05-14-01316-CR.



                                                   Respectfully submitted,


                                                   /s/ Julie Woods
Lynn Richardson                                    Julie Woods
Chief Public Defender                              Assistant Public Defender
Dallas County, Texas                               State Bar No. 24046173
                                                   Frank Crowley Courts Building
                                                   133 N. Riverfront Blvd., LB-2
Katherine A. Drew                                  Dallas, Texas 75207-4399
Chief, Appellate Division                          (214) 653-3550 (phone)
Dallas County Public Defender’s Office             (214) 875-2363 (fax)
                                                   Julie.Woods@dallascounty.org



                         CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the foregoing brief was served on the
Dallas County Criminal District Attorney’s Office (Appellate Division), 133 N.
Riverfront Blvd., 10th Floor, Dallas, Texas 75207, by eServe on January 21, 2015.

                                                   /s/ Julie Woods
                                                   Julie Woods




                                         39
                   CERTIFICATE OF COMPLIANCE

     I certify that the word count in this document, which was prepared in
Microsoft Word 2010, is 9,906.

                                             /s/ Julie Woods
                                             Julie Woods




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