                                                                                          ACCEPTED
                                                                                     12-14-00226-CR
                                                                         TWELFTH COURT OF APPEALS
                                                                                      TYLER, TEXAS
                                                                               2/18/2015 12:08:41 AM
                                                                                        CATHY LUSK
                                                                                              CLERK

                        Cause No. 12-14-00226-CR

                                                                    RECEIVED IN
                                                              12th COURT OF APPEALS
                                                                   TYLER, TEXAS
                     In the Court of Appeals for the
                                                              2/18/2015 12:08:41 AM
                  Twelfth Judicial District at Tyler, Texas        CATHY S. LUSK
                                                                       Clerk



                              Jock Dominey,
                                Appellant                          2/18/2015

                                     v.

                              State of Texas,
                                 Appellee



             On Appeal from Cause No. 2014-0069 in the 159th
             Judicial District Court of Angelina County, Texas



                               State’s Brief



                                          April Ayers-Perez
                                          Assistant District Attorney
                                          Angelina County D.A.’s Office
                                          P.O. Box 908
                                          Lufkin, Texas 75902
                                          (936) 632-5090 phone
                                          (936) 637-2818 fax
                                          State Bar No. 24090975
                                          aperez@angelinacounty.net

Oral Argument Not Requested
                         Identity of Parties and Counsel

Jock Dominey, Appellant

John Boundy
Attorney for Appellant (trial)
3205 North University Drive
Nacogdoches, Texas 75865

John W. Tunnell
Attorney for Appellant (appeal)
P.O. Box 414
Lufkin, Texas 75902

Katrina Carswell
Attorney for the State (trial)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902

April Ayers-Perez
Attorney for the State (appeal)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902




                                       ii
                                                 Table of Contents

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Index of Authorities ................................................................................................. iv

Statement Regarding Oral Argument........................................................................ v

Issue Presented .......................................................................................................... v

Statement of Facts ..................................................................................................... 1

Summary of the Argument........................................................................................ 1

Argument .................................................................................................................. 1

      Reply Issue #1: Appellant was not denied his right to a neutral and fair
magistrate, in violation of the Due Process Clause of the United States and Texas
Constitution, at his sentencing hearing……………………………………………..1

                   Applicable law ...................................................................................... 2

                   Past Precedent on Judicial Bias ............................................................ 3

                   Judge Goodwin did not display judicial bias........................................ 4

Prayer ........................................................................................................................ 5

Certificate of Compliance ......................................................................................... 6

Certificate of Service ................................................................................................ 6




                                                               iii
                                            Index of Authorities

Cases                                                                                                           Page

Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App. 2000). ...................................... 2

Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). ..................................................... 2

Brewer v. State, 572 S.W.2d 719, 721 (Tex.Crim.App. 1978). ............................ 2, 3

Brumit v. State, 206 S.W. 3d 639, 645 (Tex.Crim.App. 2006), ................................ 2

Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). ....................................................... 2

Hart v. State, 447 S.W.2d 944. ................................................................................. 2

Peterson v. State, 2013 WL5776287 (Tex.App. – Dallas, 2013) ......................... 2, 3

Thompson v. State, 641 S.W.2d 920, 921 (Tex.Crim.App. 1982). ........................... 2


Rules

Tex. R. App. P. 9.4(i)(1) ........................................................................................... 6

Tex. R. App. P. 39.1.................................................................................................. v




                                                          iv
                      Statement Regarding Oral Argument

      Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is

unnecessary, as the facts and legal arguments are adequately presented in the briefs

and record and the decisional process would not be significantly aided by oral

argument.

                                  Issue Presented

      Reply Issue #1: Appellant was not denied his right to a neutral and fair

magistrate, in violation of the Due Process Clause of the United States and Texas

Constitution, at his sentencing hearing.




                                           v
                                  Statement of Facts

         The facts in appellant’s brief are sufficient, and appellee, State of Texas,

stipulates to them.

                             Summary of the Argument

         The appellant, Jock Dominey, was not denied his right to a neutral and fair

magistrate at his sentencing hearing. Although the trial court judge did question

the appellant during the sentencing hearing, it was for clarification purposes. The

court is allowed to question a witness as long as the court maintains impartiality.

The court considered the evidence and the full range of punishment prior to

sentencing the appellant, the court questioned all the witnesses and sentenced the

appellant to significantly less time than was even offered as a plea bargain by the

state.

                                      Argument

         Reply Issue #1: Appellant was not denied his right to a neutral and fair

magistrate, in violation of the Due Process Clause of the United States and Texas

Constitution, at his sentencing hearing.




                                           1
                                                                Applicable law

               “Due process requires a neutral and detached hearing body or officer.”1

“Absent a clear showing of bias, a trial court’s actions will be presumed to have

been correct.”2                             Even in the event that a court’s questioning of a witness is

assumed to be, or appears to be, erroneous, if no fundamental constitutional right

was affected then an objection would be required to preserve the error.3 When no

objection is made to the conduct of the trial court in questioning a witness, the

conduct cannot be subsequently challenged unless it is fundamentally erroneous.4

The Trial Court is allowed to question a witness as long as the Trial Court

maintains an impartial attitude.5                                 “Due process requires a ‘fair trial in a fair

tribunal’ before a judge ‘with no actual bias against the defendant or interest in the

outcome of his particular case.’”6 In cases where a claim of judicial bias is made

the Appellate Court looks to the record to determine if it shows a judge’s bias

denied the defendant due process of law.7 “A trial judge’s comments indicate



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1
  Brumit v. State, 206 S.W. 3d 639, 645 (Tex.Crim.App. 2006), citing Gagnon v.
Scarpelli, 411 U.S. 778, 786 (1973).
2
  Id., citing Thompson v. State, 641 S.W.2d 920, 921 (Tex.Crim.App. 1982).
3
  Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App. 2000).
4
  Brewer v. State, 572 S.W.2d 719, 721 (Tex.Crim.App. 1978), citing Hart v. State, 447
S.W.2d 944.
5
  Brewer v. State, 572 S.W.2d 719, 721 (Tex.Crim.App. 1978).
6
  Peterson v. State, 2013 WL5776287 (Tex.App. – Dallas, 2013) citing Bracy v.
Gramley, 520 U.S. 899, 904-05 (1997).
7
  Id.
                                                                      2
partiality or bias if the comments reveal the judge determined a sentence without

considering the evidence or the full range of punishment.”8

                                                        Past Precedent on “Judicial Bias”

               In Brewer v. State the appellant, in his first point of error, claimed that the

trial court departed “from its role as a neutral and detached hearing body and

questioning witnesses in a prosecutorial manner, violated the appellant’s right to

due process of law.”9 In addition, the appellant did not raise any objections to the

trial court’s questioning of the witnesses.10 The Court of Criminal Appeals held

that, not only were the questions addressed to the witnesses proper, but the

questioning of the court cannot be subsequently challenged because it is not

fundamentally erroneous.11 Subsequently, in Peterson v. State, the trial judge

questioned and chastised the defendant , cutting the defendant off and calling the

defendant a “disgrace” to the judge and the United States Army.12 The Court of

Appeals, while not condoning the trial judge’s conduct, concluded that it did not

rise to the level of judicial bias.13




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8
  Id.
9
  Brewer, 572 S.W.2d 719 at 721.
10
   Id.
11
   Id.
12
   Peterson, 2013WL5776287 at 2.
13
   Id.
                                                                       3
                                             Judge Goodwin did not display judicial bias



                              The appellant acknowledged during the sentencing hearing that he had

been on drugs for a significant amount of time.14 Appellant also acknowledged

that he was currently on parole for drug offenses and his new charge that he was

being sentenced for was for drug charges.15 Appellant then spoke to the fact that,

although he had at one point been a trusty, he was no longer a trusty at the

Angelina County Jail.16 When the trial court judge, Judge Goodwin, questioned

appellant as to why he is no longer a trust appellant was evasive with his answer.,

referring to passing out trays of food and “other things”.17 It was at this point that

Judge Goodwin pressured more, questioning the appellant about drug tests while in

jail.18 The extra questioning about drug tests, which appellant contends shows

judicial bias, is a direct result of the appellant’s evasiveness with his answer and

drug history that had already been established.19 Further, Judge Goodwin had

questioned, to some degree, almost all of the witnesses who took the stand in this

sentencing hearing, not just the appellant.20 It is much more likely that it was

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14
   VI R.R. at 33.
15
   Id.
16
   Id. at 35-38.
17
   Id.
18
   Id.
19
   Id.
20
   Id.
                                                                 4
experience with criminal defendants, not outside knowledge, that led Judge

Goodwin to question whether the appellant had taken a drug test or not. That level

of experience with the criminal world does not amount to judicial bias nor does it

amount to a fundamental error needing reversal. The appellant had the opportunity

to object to the questioning and failed to do so.21



                                                                Prayer

               The State of Texas prays that this Court of Appeals affirm the judgment of

the trial court.




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21
     Id.
                                                                  5
                                               Respectfully Submitted,

                                                /s/ April Ayers-Perez
                                               Assistant District Attorney
                                               Angelina County D.A.’s Office
                                               P.O. Box 908
                                               Lufkin, Texas 75902
                                               (936) 632-5090 phone
                                               (936) 637-2818 fax
                                               State Bar No. 24090975
                                               ATTORNEY FOR THE
                                               STATE OF TEXAS

                             Certificate of Compliance

      I certify that this document contains 784 words, counting all parts of the

document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in

14 point font, and the footnote text is in 12 point font.


                                               /s/ April Ayers-Perez


                                Certificate of Service

      I certify that on February 17, 2015, a true and correct copy of the above

document has been forwarded to John Tunnell, by electronic service through

efile.txcourts.gov.


                                               /s/ April Ayers-Perez



                                           6
