                  IN THE COURT OF CRIMINAL APPEALS
                              OF TEXAS

                                    NO. PD-1100-15



                  ABRAHAM JACOB PROENZA, Appellant

                                          v.

                              THE STATE OF TEXAS

         ON STATE’S PETITION FOR DISCRETIONARY REVIEW
             FROM THE THIRTEENTH COURT OF APPEALS
                        CAMERON COUNTY

      N EWELL, J., filed a concurring opinion in which H ERVEY and
A LCALA, JJ., joined.

     “Your honor, with all due respect, if you’re going to try my
     case for me, I wish you wouldn’t lose it.”
                                      – Frank Galvin, The Verdict.1

     I agree with the Court’s conclusion that a judge has an independent

duty to refrain from conveying to the jury his or her opinion of the case.

I agree with the Court’s conclusion that compliance with Article 38.05 is

fundamental to the proper functioning of our adjudicatory system. And,

     1
         20th Century Fox (1982).
                                                     Proenza Concurring – 2

I agree with the Court’s holding that Appellant was not required to object

to the trial court’s comments in this case in order to preserve the right to

complain about those comments on appeal, regardless of the degree to

which they impacted the case. Indeed, there is much that I agree with

in the Court’s opinion.

      However, I write separately because I believe this case illustrates

why we should be wary about fetishizing our “watershed decision” in

Marin v. State.2 First, it must be remembered that Marin’s examination

of the system of adjudication at work in Texas was only a “cursory” one.3

We made no claims that we had exhaustively examined every evidentiary

or procedural rule and every statutory and constitutional right applicable

to a criminal proceeding. So while the observations in Marin regarding

different categories of rights are illuminating, they did not provide a full

diagnosis. It was simply triage.

      Given Marin’s admittedly cursory examination, it comes as no

surprise that not all “rights” fit neatly into one of Marin’s three categories.

This case is a prime example. Here, we could simply say that the statute

at issue imposes a mandatory, statutory duty on a trial judge and


      2
          851 S.W .2d 275 (1993).

      3
          Id. at 278.
                                                                Proenza Concurring – 3

therefore the statutory right fits in Marin’s second category.                       But, the

Court goes further to note that the right to an impartial judge is so

fundamental to our adjudicatory system that no objection is necessary.

This suggests that a violation of Article 38.05 (assuming that a trial

judge’s statement actually qualifies as a “comment”) falls within Marin’s

first category–a right that cannot be waived. Yet, we hold that it’s not

necessary to determine if Article 38.05 creates a “right” that cannot be

waived at all so long as we determine that it at least fits in category two

and must be affirmatively waived.

       And, of course, not every trial judge’s comment that runs afoul of

Article 38.05 can be said to completely wreck the proper functioning of

the adjudicatory system. What if the comment does not affect a litigant’s

substantial rights? In those situations, it seems to make practical sense

to categorize the “right” enshrined in Article 38.05 as a category-three

Marin right.       After all, if the comment does not affect the proper

functioning of the adjudicatory system, then the stated rationale for

removing a contemporaneous objection requirement fades.4

       4
         Indeed, for all the talk of Marin’s three categories, as a practical m atter we aren’t
really concerned with putting rights into their respective categories. W e are only concerned
with one category: category three. As before Marin, we ask whether a defendant is
required to preserve error in the trial court to raise a particular claim on direct appeal.
Asking whether the right is a category-three Marin right instead of whether the right
requires preservation doesn’t change the ultim ate inquiry. Once we determ ine that a right
                                                                 Proenza Concurring – 4

       So, is Marin doing anything at all?                      In this case is it the

Marin category that determines the need for error preservation, or a call

to the proper functioning of the adjudicatory system?                     For all the talk of

doing away with the concept of “fundamental error,” holding that the

violation in this case doesn’t require an objection because “an impartial

judge is fundamental to our adjudicatory system” sure sounds like a

determination of fundamental error. It seems to me that Marin is good

at explaining how to treat violations of particular rights if we already

know how those rights should be categorized. It is not as helpful with

categorizing the rights in the first place or otherwise explaining why one

system of valuation is more valid than another.

       All that said, I join the Court’s opinion because it gets the most

important thing correct.              The inquiry should always start with a

determination of the nature of the right at issue rather than concerns

about how efficiency favors a contemporaneous objection requirement.

Pointing to the administrative burden created by the rejection of a

contemporaneous objection requirement prioritizes efficiency concerns


at issue is not a category-three right, we are less concerned with what category that right
belongs in. See, e.g. Garza v. State, 435 S.W .3d 258, 263 (Tex. Crim . App. 2014). Seem s
to m e that this can lead to the sam e piecem eal developm ents that Marin was supposed to
rescue us from . Saldano v. State, 70 S.W .3d 873, 887-88 (Tex. Crim . App. 2002)(citing
George E. Dix & Robert O. Dawson, T EXAS P RACTICE – CRIM INAL PRACTICE AND PRO CED URE § 42.121
(1995)).
                                                   Proenza Concurring – 5

over the rights of the litigants.   Moreover, it encourages defining the

rights at issue down so that efficiency arguments appear more weighty.

To be sure, this decision will lead to more claims that something the trial

court said amounts to a “comment” or more opinions deciding whether

a particular statement violated a litigant’s substantial rights. But the flip

side of the argument is more damning. It risks letting a conviction before

an admittedly partial tribunal stand simply for want of an objection to a

demonstrably biased judge.

     For these reasons, I concur and join the Court’s opinion.




Filed: November 15, 2017

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