                                       In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                                ________________

                               NO. 09-15-00417-CR
                                ________________

                    WHITLEY ECHUS CARDER, Appellant

                                          V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

              On Appeal from the Criminal District Court
                       Jefferson County, Texas
                       Trial Cause No. 15-21715
__________________________________________________________________

                           MEMORANDUM OPINION

      A jury convicted appellant Whitley Echus Carder of indecency with a child

and assessed punishment at seven years of confinement. However, the jury

recommended that Carder’s sentence be suspended and that Carder be placed on

community supervision for ten years. In two appellate issues, Carder argues that

(1) the trial court denied him due process when the judge allegedly assisted the

prosecution during punishment and (2) he was denied a fair and impartial tribunal

to preside over his trial. We affirm the trial court’s judgment of conviction.

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                             FACTUAL BACKGROUND

      The victim, L.B., testified that her mother took her to Carder’s apartment to

spend the night because her mother had to work. L.B. testified that she was

watching a movie on the sofa, and Carder began to stroke his “private spot” after

taking it out through a hole in his pajamas. According to L.B., Carder also showed

her a video on his phone of “a woman sucking a man’s private spot” and asked her

if she wanted to do that, and she declined. L.B. explained that Carder continued to

touch his private spot while she watched episodes of a television show. L.B.

testified that Carder asked her to take a bath, and as she bathed, Carder sat on the

toilet stroking his private spot.

      Carder testified in his own defense. Carder explained that he agreed to keep

L.B. overnight because her mother had to work. According to Carder, L.B.

watched movies on television while he played on his cell phone. Carder testified

that one of the applications on his phone had an adult section that contained an

inappropriate advertisement, which L.B. saw. Carder testified that later, L.B. asked

him if she could take a bath, and he stayed in the room because he “didn’t know if

a six-year-old [could] take a bath by themselves like that.” Carder denied

masturbating in front of L.B. or otherwise exposing his genitals to her, and he also

denied asking her for oral sex.

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      Carder also testified during the punishment phase of the trial. During cross-

examination, the prosecutor asked Carder, “And you still stand by that all you did

was show [L.B.] that video?” Carder responded, “Yes. That’s why I declined 5

years [of] probation.” The following colloquy then occurred:

      THE COURT:         Ma’am, did you say something?
      [Prosecutor]:      I was going to; but I won’t, Your Honor.
      THE COURT:         Do you have an objection to make? You-all want
                         to talk?
      [Co-prosecutor]:   Can we approach, Judge?
      THE COURT:         Yes, please.

            (Bench Discussion Outside Hearing of the Jury)

      THE COURT:         What are you-all going to do, just sit here and take
                         it or what?
      [Prosecutor]:      No.
      [Co-prosecutor]: First of all, it’s nonresponsive to the question.
      THE COURT:         What else?
      [Co-prosecutor]: We need to instruct the jury to disregard that. If
                         not, since it’s being rammed down his throat. He’s
                         the one that opened the door.
      [Defense counsel]: What was the question?
      [Prosecutor]:      That I asked him?
      [Defense counsel]: Yeah, what was the question that he responded
                         to[?]

            (Judge Reading Last Question and Answer)

      [Defense counsel]: Yeah, I think that’s nonresponsive.
      ...
      THE COURT:         Well –
      [Co-prosecutor]: But since he’s opened the door –
      [Prosecutor]:      I feel like he’s opened the door.
      THE COURT:         For what?
                                        3
      [Prosecutor]:       That wasn’t what the State’s offer was. I want to
                          go over what the offer was with him.
      THE COURT:          Yeah.

After the jury returned, the prosecutor elicited testimony from Carder that the State

had offered a cap of five years in prison, not probation.

                                CARDER’S ISSUES

      In his first issue, Carder complains that the trial court denied him due

process of law when the trial judge “assisted the State in the prosecution of the

State’s case on punishment[,]” and in his second issue, Carder asserts that he “was

denied a fair and impartial tribunal to preside over his trial.” Specifically, Carder

complains that the trial judge assisted the prosecution by prompting the prosecutor

to object to Carder’s testimony and to elicit inadmissible testimony regarding the

State’s plea offer. We address issues one and two together.

      At the outset, we note that Carder’s counsel did not object to the

complained-of comments by the trial judge during trial. To preserve a complaint

for our review, a party generally must make a timely objection at trial and obtain a

ruling. Tex. R. App. P. 33.1(a). Citing the plurality opinion in Blue v. State, 41

S.W.3d 129, 132-33 (Tex. Crim. App. 2000), Carder argues that the lack of an

objection by defense counsel does not waive error. In Blue, the trial judge

commented to the jury that the defendant had attempted to enter into a plea-bargain

                                          4
agreement with the State and that the trial court would have preferred a guilty plea.

Blue, 41 S.W.3d at 133. The Court of Criminal Appeals upheld the general rule

that a timely objection is necessary to preserve error, but held that, under the facts

presented, the trial judge’s comments vitiated the presumption of the defendant’s

innocence and therefore constituted a fundamental error, rendering an objection

unnecessary. 1 Id. at 132-33.

      Unlike Blue, in this case, the trial court’s comments to the prosecutor did not

occur in front of the jury, and we therefore conclude that because defense counsel

failed to object and the alleged error was not fundamental, Carder failed to

preserve this issue for review. See Tex. R. App. P. 33.1(a)(1); see generally Blue,

41 S.W.3d at 132-33. However, even if the issue had been preserved, Carder would

not prevail. Due process requires a neutral and detached hearing body or officer.

Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). Absent a clear showing of bias, we

presume that the trial court’s actions were correct. See Brumit v. State, 206 S.W.3d

639, 645 (Tex. Crim. App. 2006). The trial court’s comments do not reflect bias or

partiality. Furthermore, Carder has failed to show that the trial judge’s comments

negatively impacted the jury’s punishment decision. See Tex. R. App. P. 44.2(a).



      1
       See Unkart v. State, 400 S.W.3d 94, 101 (Tex. Crim. App. 2013)
(concluding Blue has “no precedential value”).
                                          5
For all of these reasons, we overrule issues one and two and affirm the trial court’s

judgment of conviction.

      AFFIRMED.



                                       ________________________________
                                              STEVE McKEITHEN
                                                  Chief Justice

Submitted on May 20, 2016
Opinion Delivered June 15, 2016
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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