Affirmed and Majority and Concurring Opinions filed June 30, 2016.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00373-CR

                        AARON GONZALES, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 183rd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1429774

                   CONCURRING OPINION
      Courts bear a special responsibility to speak clearly and precisely. That
means choosing the right words to say what is permitted and what is not. Today
the court muddles the distinction when discussing whether a presiding trial judge
may become a fact witness in the trial.
      At the time of appellant’s trial, Texas Rule of Evidence 605, entitled
“Judge’s Competency as a Witness,” provided that “[t]he judge presiding at the
trial may not testify in that trial as a witness. No objection need be made in order
to preserve the point.”1 The majority characterizes the judge’s conduct (in-court
statements about the lunchroom episodes) as occurring “in a proceeding prior to
the trial on the merits, outside the presence of the entire jury panel.”2 The record
shows (and both sides agree) the conduct occurred during trial (after jury selection
and before opening statements) and in the presence of at least two jurors.
       The during-trial status of the judge’s conduct is a crucial threshold
determination to the Rule 605 analysis because if the conduct did not occur during
trial (as the majority concludes), then Rule 605 would not apply. In other words, if
the majority were correct in its characterization of the incidents as pretrial conduct,
then there would be no need to address the applicability of Rule 605 or to decline
to apply the rule’s express prohibition on judicial testimony to the judge’s conduct
in today’s case.
       The threshold determination depends on facts the majority says (incorrectly)
are not present, yet the majority does not say the absence of these facts is the
reason for today’s pronouncement. Instead, the majority suggests that the ruling
might turn on the content of the judge’s statements, though the court cites no
authority for that proposition.
       In Hammond v. State, the Court of Criminal Appeals held that Rule 605
“forbids the presiding judge of a criminal trial from testifying as a witness during
the course of that trial.”3 The Hammond defendant escaped from custody after the
jury had returned a “guilty” verdict, but before the punishment phase. 4 After

       1
          Tex. R. Evid. 605 (West 2014) (repealed 2015). Rule 605 was revised and restyled
effective April 1, 2015. See Misc. Docket No. 14-9232 (Tex. Nov. 19, 2014). Rule 605
currently provides: “[t]he presiding judge may not testify as a witness at the trial. A party need
not object to preserve the issue.” Tex. R. Evid. 605.
       2
           See ante at 8 n.1 (emphasis added). See also ante at 2 (“prior to trial on the merits”).
       3
           799 S.W.2d 741, 746 (Tex. Crim. App. 1990) (emphasis added).
       4
           Id.

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learning that the defendant had the names and addresses of the jurors, the trial
judge developed concerns for the jurors’ safety5 and asked the clerk to telephone
the jurors and advise them of the defendant’s escape.6 The defendant later argued
that the trial judge became a fact witness through the clerk’s communications with
the jurors.7 Though the Hammond court held that the trial court’s action did not
constitute testimony during the course of trial in violation of Rule 605, the high
court indicated that a trial judge’s statements from the bench, under certain
circumstances, could constitute trial testimony by the judge as a witness, in
violation of Rule 605.8
      The majority says that it is “ill-advised” for a trial judge to become a fact
witness in a proceeding.9 The word choice suggests that engaging in that type of
conduct is merely unwise or imprudent when Rule 605 seems to facially prohibit
it.10 The lack of clarity leaves the boundaries murky. In analyzing whether the
trial judge violated Rule 605 by testifying during the course of trial, the Hammond
court stated that courts should determine whether the judge made one or more
statements of fact that were (1) essential to the exercise of some judicial function
or (2) the functional equivalent of witness testimony. 11 The majority does not
address these factors or apply them to the trial judge’s statements concerning the
lunchroom episodes.
      Because the majority acknowledges the text of Rule 605 prohibiting judicial


      5
          Id.
      6
          Id.
      7
          Id.
      8
          See id.
      9
          See ante at 8.
      10
           See Tex. R. Evid. 605.
      11
           Hammond, 799 S.W.2d at 746.

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testimony yet concludes that the rule did not bar the trial judge’s statements, the
analysis in footnote 1 might leave readers wondering the reason for the exception.
Is it because the majority believes the statements did not occur during trial? Is the
court defining “during trial” in a new way for purposes of Rule 605? Perhaps
today’s decision turns on the court’s determination that “the statements did not
bear on the defendant’s guilt.” Whatever the court’s reasoning, defining clear
boundaries is especially important when addressing an issue for the first time, lest
the court blur the lines and lead readers into error. Whether Rule 605 applies in the
context presented in today’s case appears to be a question of first impression in
Texas. Readers should not have to struggle to discern the basis for today’s Rule
605 pronouncement.
       No party has raised Rule 605 in this appeal or in the trial court. Because
appellant does not argue that the trial judge violated Rule 605, this court need not
address the issue today.12 But, because the majority chooses to do so, readers
would be best served by an analysis of the text of Rule 605 and the jurisprudence
from the Court of Criminal Appeals to determine whether the rule applies to the
proceeding the trial judge conducted following the lunchroom episodes he
witnessed between and among appellant and various jurors.
       If, as the majority concludes in footnote 1 of its opinion, Rule 605’s express
prohibition on a presiding judge’s testimony during trial does not encompass the
judge’s conduct, then the majority should explain why. Likewise, because the
majority plows new ground in pronouncing the conduct “outside the rule,” the
court should articulate why a judge making eyewitness statements from the bench

       12
          The majority correctly concludes that the trial judge’s comments do not rise to the level
of fundamental error. The record in today’s case does not show a basis for disqualification of the
trial judge. See Tex. Const. art. V, §11; Kemp v. State, 846 S.W.2d 289, 305–06 (Tex. Crim.
App. 1992). Appellant did not move to recuse the trial judge. See Arnold v. State, 853 S.W.2d
543, 544–45 (Tex. Crim. App. 1993).

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in the presence of jurors during trial does not violate the rule.
      Answering the Rule 605 question is not necessary to dispose of today’s case.
Preferring to leave the determination for another day and another case (one in
which the issue is both raised and briefed), I respectfully decline to join the
majority opinion, but I concur in the court’s judgment.



                                        /s/       Kem Thompson Frost
                                                  Chief Justice



Panel consists of Chief Justice Frost and Justices McCally and Brown (Brown, J.,
majority).
Publish — TEX. R. APP. P. 47.2(b).




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