                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00017-CR



      JIMMY TENOLA MICHEAUX, SR., Appellant

                            V.

              STATE OF TEXAS, Appellee



          On Appeal from the 3rd District Court
               Anderson County, Texas
                Trial Court No. 28613




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                     MEMORANDUM OPINION
           Jimmy Tenola Micheaux, Sr., was convicted by a jury of two counts of aggravated sexual

assault of a child. 1 The jury assessed punishment at five years on each count and recommended

that sentences be suspended and Micheaux be placed on community supervison. The sentences

were suspended, and Micheaux was placed on community supervision for a period of ten years. 2

Approximately five years later, Micheaux’s community supervision was revoked, and he was

sentenced to five years’ imprisonment on each count of aggravated sexual assault. The judgment

of revocation indicates that each sentence is to run consecutively. 3 We affirm the judgment of

the trial court.




1
    TEX. PENAL CODE ANN. § 22.021 (West Supp. 2012).
2
 Article 42.12 of the Texas Code of Criminal Procedure does not currently permit the imposition of court-ordered or
jury recommended community supervision when the defendant has been adjudged guilty of aggravated sexual
assault of a child. TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 3g(a)(1)(E), 4(d)(5) (West Supp. 2012). In 1991, the
Legislature eliminated the option of court-ordered community supervision for aggravated sexual assault. Act of
May 25, 1991, 72d Leg., R.S., ch. 541, § 1, 1991 Tex. Gen. Laws 1876 (current version at TEX. CODE CRIM. PROC.
ANN. art. 42.12, § 3g(a)(1)(E)). In 2007, the Legislature eliminated the option of jury recommended community
supervision for a defendant convicted of aggravated sexual assault of a child. Act of May 17, 2007, 80th Leg., R.S.,
ch. 593, § 1.06, 2007 Tex. Gen. Laws 1123 (current version at TEX. CODE CRIM. PROC. ANN. art. 42.12 § 4(d)(5)).
Micheaux was convicted on March 8, 2007, for an offense occurring in 2001, prior to the effective date of the 2007
change in the law.
3
 Under Section 3.03 of the Texas Penal Code, the trial court had the discretion to impose either concurrent or
consecutive sentences. TEX. PENAL CODE ANN. § 3.03(b)(2)(A) (West Supp. 2012). Until 1995, Section 3.03
required sentences for multiple offenses prosecuted in a single trial to run concurrently. Owens v. State, 96 S.W.3d
668, 571 (Tex. App.—Austin 2003, no pet.). In that year, the Legislature amended Section 3.03 to imbue the trial
court with the discretion to impose consecutive sentences for multiple intoxication manslaughter convictions
prosecuted in a single trial. Act of May 26, 1995, 74th Leg., R.S., ch. 596, § 1, 1995 Tex. Gen. Laws 3435 (current
version at TEX. PENAL CODE ANN. § 3.03(b)(1) (West Supp. 2012)). In 1997, the Legislature further amended
Section 3.03 to imbue the trial court with the discretion to impose consecutive sentences when the defendant was
convicted of aggravated sexual assault of a victim younger than seventeen, among others. Act of May 31, 1997,
75th Leg., R.S., ch. 667, § 2, 1997 Tex. Gen. Laws 2250, 2251 (current version at TEX. PENAL CODE ANN. §
3.03(b)(2)(A)).


                                                         2
            On appeal, Micheaux claims the trial court was not impartial in its decision to stack the

two five-year sentences, 4 thereby violating his due process rights by failing to function as an

impartial tribunal. 5 Micheaux’s contentions are based on the trial court’s reaction to the original

sentence and to Micheaux’s apparent inability to comply with the terms of his community

supervision. After the evidence and final statements of counsel were presented at the revocation

hearing, the trial court emphasized to Micheaux that it is unusual for a defendant to receive

community supervision for the first degree felony offense of aggravated sexual assault of a child:

            Jimmy, I’m telling you, I’m disgusted, and you don’t seem to get it. . . . Most men
            would be running and doing anything they could. You just got manna from
            Heaven. I mean, this jury - - gosh, with what they found you guilty of . . . [y]ou
            could have got life in prison, and they didn’t do it. And then they put you on
            probation, and then they file a Motion To Revoke it, and you got by with that
            again, and here we are on the same thing.

The court expressed exasperation at Micheaux, who, after having received a sentence of 180

days in the Anderson County Jail in 20106 in lieu of revocation at that time, was now back in

court on a second motion to revoke. After the trial court granted the motion to revoke, the

attorneys asked to present briefs on the propriety of concurrent sentencing. The court agreed to

consider the arguments and set the sentencing hearing for a later date, but commented:


4
    Micheaux also implies that the trial court’s sentence was predetermined.
5
 Micheaux’s brief does not rely on a specific provision of either the United States or the Texas Constitution. The
index of authorities cites the Eighth Amendment to the United States Constitution and the corresponding provision
of the Texas Constitution. U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. The content of these provisions is
not mentioned or argued in the brief.
6
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.

                                                            3
            Well, Jimmy, I’m going to tell you something. You screwed up. You don’t get it.
            You really don’t. You still don’t get it . . . .

                    ....

            Jimmy, . . . I don’t know what to do with you. I can’t believe they gave you --

                    ....

            I want to tell you something, and you understand this.

                    ....

            You are going to prison. The question is how long.

                    ....

            And you had it beat.

            Micheaux concedes that he failed to raise his due process claims in the trial court, 7 but

claims that we should reach the merits of his complaint because there is no requirement to object

to the neutrality of the trial court at the time of the hearing to preserve error. See Brumit v. State,

206 S.W.3d 639, 645 (Tex. Crim. App. 2006). In that case, Brumit relied on holdings from the

United States Supreme Court and Texas courts in arguing that comments by the trial judge

constituted fundamental error, relieving him of the requirement to object in the trial court. See

Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (trial court’s comments to venire that

“vitiated the presumption of innocence” before venire were fundamental error of constitutional

dimension and required no objection); Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App.

1993), modified on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)



7
    These claims were not made at sentencing, and no motion for new trial was filed.
                                                            4
(Except for structural errors, “no error . . . is categorically immune to a harmless error

analysis.”); see also United States v. Olano, 507 U.S. 725, 735–36 (1993).

        The Brumit Court reitereated its Marin holding by stating, ‘“[O]ur system may be thought

to contain rules of three distinct kinds: (1) absolute requirements and prohibitions; (2) rights of

litigants which must be implemented by the system unless expressly waived; and (3) rights of

litigants which are to be implemented upon request.”’ Brumit, 206 S.W.3d at 644 (quoting

Marin, 851 S.W.2d at 275). “All but the most fundamental rights are thought to be forfeited if

not insisted upon by the party to whom they belong[,]” including “[m]any constitutional rights.”

Marin, 851 S.W.2d at 279. Absolute requirements and prohibitions include jurisdictional issues

and the Separation of Powers Section of the Texas Constitution. Saldano v. State, 70 S.W.3d

873, 888 (Tex. Crim. App. 2002), modified sub silencio by Karenev v. State, 281 S.W.3d 428,

434 (Tex. Crim. App. 2009). Examples of rights that are waivable-only include the rights to the

assistance of counsel and to trial by jury. Saldano, 79 S.W.3d at 888. The Brumit court

determined that it need not address the preservation issue because the remarks by the trial court

in that case did not reflect partiality of the trial court.

        The parties have a right to a fair trial. Dockstader v. State, 233 S.W.3d 98, 108 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d).             One of the most fundamental components of a

fair trial is a neutral and detached judge. Id. A judge should not act as an advocate or adversary

for any party. Id. Improper conduct or comments of the trial court mandate reversal only when

the record reflects that judicial impropriety was in fact committed, resulting in probable

prejudice to the complaining party.

                                                     5
        Here, the record neither shows bias nor partiality on the part of the trial court, nor does

the record show that the trial court predetermined Micheaux’s sentence. 8 Annoyance or disgust

with a defendant who, despite having been given community supervision for a first degree

felony, refuses to abide by the terms of that supervision on two separate occasions, does not

reflect bias. The reaction of the judge appears to be one of incredulity, not bias. Moreover, the

trial court had discretion to stack the two five-year sentences. See McCullar v. State, 676

S.W.2d 587, 588 (Tex. Crim. App. 1984) (en banc) (trial court may cumulate sentences after

probation revocation even though judgments suspending imposition of original sentences and

order of probation do not provide for stacked sentences).

        Because the record does not reflect partiality of the trial court or that a predetermined

sentence was imposed, we need not decide whether an objection was required to “an error of this

nature on appeal.” Brumit, 206 S.W.3d at 644–45.

        We affirm the judgment of the trial court.



                                                              Jack Carter
                                                              Justice

Date Submitted:           July 1, 2013
Date Decided:             July 3, 2013

Do Not Publish




8
 After the State requested consecutive sentences, the trial court adjourned and returned on a later date to consider
whether consecutive sentencing was appropriate. Nothing in the record indicates that the trial court was predisposed
to consecutive sentencing.
                                                         6
