                             NUMBER 13-13-00172-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


ABRAHAM JACOB PROENZA,                                                               Appellant,

                                                 v.

THE STATE OF TEXAS,                                                                  Appellee.


                      On appeal from the 445th District Court
                           of Cameron County, Texas.


                                            ORDER

  Before Chief Justice Valdez and Justices Rodriguez and Contreras1
                           Order Per Curiam
       On July 23, 2015, this Court issued an opinion reversing Abraham Jacob

Proenza’s conviction and remanding for proceedings consistent with our opinion. See

Proenza v. State, 471 S.W.3d 35, 55 (Tex. App.—Corpus Christi 2015), aff’d in part, and

       1 Justice Dori Contreras, formerly Dori Contreras Garza. See TEX. FAM. CODE ANN. § 45.101 et
seq. (West, Westlaw through 2017 1st C.S.).
rev’d and rem’d in part, ___ S.W.3d ___, 2017 WL 5483135, at *11 (Tex. Crim. App.

Nov. 15, 2017).    The Texas Court of Criminal Appeals agreed with this Court that

Proenza did not forfeit his article 38.05 statutory appellate claim of improper judicial

comments and affirmed our ruling in that regard. Proenza, ___ S.W.3d at ___, 2017 WL

5483135, at *10. More specifically, the court of criminal appeals based its preservation

holding on the Marin v. State framework and concluded the following:

       claims of improper judicial comments raised under Article 38.05 are not
       within Marin's third class of forfeitable rights. Rather, we believe that the
       right to be tried in a proceeding devoid of improper judicial commentary is
       at least a category-two, waiver-only right. Because the record does not
       reflect that Proenza plainly, freely, and intelligently waived his right to his
       trial judge's compliance with Article 38.05, his statutory claim in this matter
       is not forfeited and may be urged for the first time on appeal.

Id.; see Marin, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (identifying the second of

three types of error-preservation rules as “rights of litigants which must be implemented

by the system unless expressly waived”).

       The Texas Court of Criminal Appeals continued, “‘when only a statutory violation

is claimed, [as in this case,] the error must be treated as non-constitutional for the purpose

of conducting a harm analysis.’” Proenza, ___ S.W.3d at ___, 2017 WL 5483135, at *18

(quoting Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim. App. 2005)). Because we applied

the standard of harm that is associated with constitutional error, the court of criminal

appeals reversed our judgment and remanded the case to allow this Court to apply the

non-constitutional harm analysis contained in Texas Rule of Appellate Procedure 44.2(b).

See id.; see also TEX. R. APP. P. 44.2(b) (explaining that any error, other than

constitutional error, “that does not affect substantial rights must be disregarded”).


                                              2
       In light of the briefs and the court of criminal appeal’s opinion, this Court requests

amended briefing, which shall be limited solely to the issue designated by the court of

criminal appeals on remand.2 See TEX. R. APP. P. 38.7 (“A brief may be amended or

supplemented whenever justice requires, on whatever terms the court may prescribe.”).

Therefore, it is ordered that appellant Proenza file his amended brief within thirty days

from the date of this order and appellee the State of Texas file its amended brief within

thirty days after Proenza’s amended brief is filed.


                                                                                  PER CURIAM

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 9th
day of January, 2018.




       2   Amended briefing on other issues, if necessary, will be by separate order.
                                                     3
