                                  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


                                       ORDER

       This appeal became ripe for disposition on September 13, 2013. In reviewing the

appeal, we have identified a preliminary matter regarding our authority to address

appellant’s first issue not raised and briefed by the parties. Rule 33.1 generally requires

that issues presented to this Court must be preserved. TEX. R. APP. P. 33.1. Accordingly,

in reliance on the Court of Criminal Appeals’ opinion in Pena v. State, 191 S.W.3d 133,

137-138 (Tex. Crim. App. 2006), we order supplemental briefing by both parties on the

following question:
         Is the “right to an impartial judge” a systemic requirement which permits
         a party to complain on appeal that such a requirement was violated, even
         if the party failed to complain at trial about the violation or waived the
         application of the law? See Mendez v. State, 138 S.W.3d 334, 340 (Tex.
         Crim. App. 2004).

         It may be helpful to the briefing to distinguish this type of error from

“structural” error which impacts only the harm analysis. Id. at 339. Further, it may be

necessary to discuss the concept of “fundamental errors” recognized by Texas Rule of

Evidence 103 and “plain error” recognized in the Federal courts.

         Appellant’s supplemental brief is due 21 days from the date of this order. The

State’s supplemental brief is due 14 days from the date appellant’s supplemental brief is

filed.



                                          PER CURIAM

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Order issued and filed January 16, 2014




Hutchinson v. State                                                                   Page 2
