                          NUMBER 13-13-00579-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

CHRISTOPHER LONG,                                                      Appellant,


                                        v.


THE STATE OF TEXAS,                                                    Appellee.


                   On appeal from the 24th District Court
                        of De Witt County, Texas.


                       MEMORANDUM OPINION
            Before Justices Benavides, Perkes, and Longoria
               Memorandum Opinion by Justice Longoria

      By one issue, appellant Christopher Long challenges his sentence of six years’

imprisonment for aggravated perjury, a third-degree felony. See TEX. PENAL CODE ANN.

§ 37.03 (West, Westlaw through 2013 3d C.S.). We affirm.
                                        I. BACKGROUND

       DeWitt County District Attorney Michael Sheppard testified at appellant’s trial that

appellant, a confidential informant, turned over a quantity of cocaine to authorities and

stated that he had purchased the cocaine from a man named Brandon Michalek. The

State brought charges against Michalek arising out of the sale. At Michalek’s trial,

appellant changed his story and told the court that he had not purchased cocaine from

Michalek and that the cocaine actually belonged to appellant. As a result, the State

dismissed the charges against Michalek and charged appellant with aggravated perjury,

a third-degree felony.    See id.    Appellant entered an open plea of guilty, judicially

confessed to all of the elements of the offense, and opted for the trial court judge to assess

punishment.    With the agreement of the parties, the trial judge deferred accepting the

plea and making a finding of guilt until after hearing evidence on punishment. Appellant

requested that the court impose a term of community supervision, and the State

recommended a minimum sentence of six years’ imprisonment.

       Appellant and his wife, Candice Long (Candice), testified at the punishment

hearing. After the attorneys for both parties informed the trial judge that they had no more

questions for appellant, the trial court judge stated:       “[t]he Court has a little other

information that I’d like to get from this witness.” Appellant’s counsel did not object, and

the trial judge proceeded to question appellant about certain matters raised by his

testimony. The record of the questioning is extensive, so we reproduce a representative

sample in which the judge questions appellant about his testimony that John Herrick,

Michalek’s trial counsel in the drug case, allegedly took appellant on a ride to San Antonio

and convinced him not to testify:



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THE COURT: Mr. Long, on the day that you were telling Mr. Sheppard
about when Mr. Herrick and his wife came to your house and took you to
San Antonio, okay, you know what day I'm talking about?

[APPELLANT]: Yes, sir.

THE COURT: Okay. When he pulled up in front of your house did you
know who he was?

[APPELLANT]: No, sir, I did not. At first I didn't, I didn't recognize the car.

THE COURT: Had you ever talked to him before that on the phone or by
any other means?

[APPELLANT]: No, sir.

THE COURT: And so this total stranger pulled up in front of your house
and, what, how did he convince you to get in the car and go to San Antonio?

[APPELLANT]: I don't know. He's real convincing.

THE COURT: Did he tell you that he was Mr. Michalek's lawyer?

[APPELLANT]: At first he never told me that until I got in the car and then
he told me he was Mr. Michalek's.

THE COURT: Well, tell me what he told you to get you to go to San Antonio
with him. I mean, can I pull up to your house and say let's go to Laredo and
you'll just jump in and go to Laredo?

[APPELLANT]: No.

THE COURT: Well. . .

[APPELLANT]: He didn't really say nothing, he just asked me to ride with
him to San Antonio, so I did.

THE COURT: A total stranger just pulled up in front of your house and said,
hey, let's go to San Antonio and you got in the car and went with him?

[APPELLANT]: Yes, sir.

THE COURT: Does that seem kind of unbelievable to you?

[APPELLANT]: Yeah. But that's what happened. Honestly, that's what
happened.

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        THE COURT: And then as you have previously testified, all those things
        that occurred on the trip, you told Mr. Sheppard about everything that
        happened on the trip. Nothing else happened on that trip, right?

        [APPELLANT]: No, sir.

        THE COURT: And you had never ever before that day ever heard of or met
        Mr. Herrick?

        [APPELLANT]: No, sir.

        THE COURT: And he hasn't been to see you at the jail?

        [APPELLANT]: No, sir.

        THE COURT: He hasn't sent you messages through other persons, verbal
        messages or anything else?

        [APPELLANT]: No, sir.

        THE COURT: No threats or anything else?

        [APPELLANT]: I ain't seen him since. . .

        THE COURT: April the 2nd —

        [APPELLANT]: Yes, sir.

        THE COURT: —2013, you have not seen or heard from Mr. Michalek?

        [APPELLANT]: I ain't seen him or heard from him.

        THE COURT: Do you know where he is today?

        [APPELLANT]: No, sir, I don't.

        THE COURT: Well, do you think that what you're doing today would trigger
        his—him[1] taking action on the threats that were made against you?

        [APPELLANT]: Most likely.

        THE COURT: And so what's the incentive, what are you doing here?


        1Here, the trial judge is referring to threats that Michalek and one of his associates allegedly made
against appellant and his family.

                                                     4
      [APPELLANT]: I'm doing the right thing.

      THE COURT: And what brought you to this place? How did you get here
      to—how did you come to realize that lying to the State and interfering with
      the operation of justice is a bad thing and that you wanted to do this?

      [APPELLANT]: Sitting in that eight-man tank got me realizing that I did the
      wrong thing and I shouldn't never lie. Being incarcerated has taught me a
      lesson. I should never have lied under oath, never. I should have told the
      truth while I had the chance.

      Following this exchange, the trial judge permitted the attorneys for both parties to

ask follow-up questions. Appellant’s next and final witness was his wife Candice. The

trial judge posed similar questions to her after the parties’ attorneys finished their

examinations. The record of the judge’s questioning of Candice is also extensive so we

again reproduce a representative sample:

      THE COURT: Okay. You've said that at some point in time Mr. Long went
      to—went somewhere with Mr. Herrick. Is that right?

      THE WITNESS: Yes, sir.

      THE COURT: And you also said that you had met Mr. Herrick about one
      week before that happened?

      THE WITNESS: Yes, sir.

      THE COURT: And that was because he came to your house one week
      earlier; is that correct?

      THE WITNESS: Yes, sir.

      THE COURT: And was Mr. Long home that day or was he not there?

      THE WITNESS: When?

      THE COURT: The first time that Mr. Herrick came to your house. Not the
      day that he went off with him, the time before that when you said you met
      him, was Mr. Long present when you met him or not?

      THE WITNESS: Yes, sir.



                                           5
THE COURT: On the day that Mr. Long went somewhere with Mr. Herrick
and came back at nine or ten o'clock at night, did he tell you ahead of time
that Mr. Herrick was going to pick him up or did he come in and tell you that
Mr. Herrick was there and wanted him to go somewhere with him?

THE WITNESS: If he. . .

THE COURT: Did he tell you during the day, before Mr. Herrick got there,
John Herrick is coming to pick me up, we're going to go somewhere, or did
he come in and tell you John Herrick is here and I'm going to go somewhere
with him? Did he know ahead of time that he was coming to pick him up?

THE WITNESS: Yes, sir.

THE COURT: How do you know that?

THE WITNESS: He came in the house and told me that John Herrick was
coming to pick him up and that he'll be back late.

THE COURT: But John Herrick wasn't there yet; is that correct?

THE WITNESS: I don't know. I was inside.

THE COURT: Okay. So you think that he knew that John Herrick was
coming to pick him up before he got there or do you think he didn't know
before he got there?

THE WITNESS: I don't think he knew.

THE COURT: So John Herrick showed up and then your husband didn't
know he was coming to pick him up but he came and told you that he was
there and that he was going to leave with him?

THE WITNESS: I don't know. All I know is he came in and told me he was
leaving and that he would be back later and that he was going with John
Herrick.

THE COURT: Okay. And he had met John Herrick with you a week earlier?

THE WITNESS: Well, he met him before I did. I just met him the same day
when we both walked outside.

THE COURT: Okay. So he had met him even before John Herrick showed
up at your house a week before he took him off wherever they went?




                                     6
THE WITNESS: Yes, sir. I think he met him in court when they had court
one day.

THE COURT: So how long before—how long before Mr. Long went with
Mr. Herrick do you think he knew him? A month?

THE WITNESS: I don't know.

THE COURT: But you're sure that he did know him before the day that he
came to get him and take him off wherever they went?

THE WITNESS: I don't know when he met him.

THE COURT: But do you know for sure that he knew him before he went
somewhere with him?

THE WITNESS: Yes, sir. I think so.

THE COURT: Okay. And tell me why you think you're sure of that.

THE WITNESS: Well, because he was supposed to be one of my cousin's
lawyers too —

THE COURT: Okay.

THE WITNESS: —and stuff so. . . Me and my husband's around each other
most of the time, but not all the time, because you've got to get a break
sometime from a man so. . .

THE COURT: Why is that?

THE WITNESS: Because. A man will drive you up the wall.

THE COURT: Had — to your best of your recollection, do you remember
your husband, Mr. Long, talking to you about John Herrick before the day
that he went with him? So wherever they went, we're just going to call it the
day they went to San Antonio. Before that day, the best of your recollection,
do you remember your husband talking to you about John Herrick?


THE WITNESS: Yes, sir.

THE COURT: Okay. To the best of your recollection do you remember
your husband, Mr. Long, talking to you about John Herrick before that week,
that one week earlier when he came to your mother's house? There was a
time when he came to your mother's house and picked your husband up,

                                     7
       you've told me that a week before that he came by your house and talked
       to you. Right?

       THE WITNESS: He came by.

       THE COURT: And talked to you and your husband and then one week later
       he came by, picked your husband up and took him to San Antonio for a little
       while.

       THE WITNESS: Yes, sir.

       THE COURT: Is that what you remember?

       THE WITNESS: Yes, sir.

       THE COURT: Now, before the first time—I assume that the time a week
       before he took him off, that that was the first time John Herrick had ever
       been to your mother's house.

       THE WITNESS: Yes, sir.

       THE COURT: That you know of. Before he came to your mother's house
       the first time, do you ever remember your husband talking about John
       Herrick before that?

       THE WITNESS: About meeting him in court one day.

       THE COURT: Okay. So he had talked about it before he came to the house
       the first time?

       THE WITNESS: Yes. Because John Herrick and Brandon were outside
       when Chris was leaving the courtroom—

       THE COURT: Okay.

       Following closing arguments, the trial court judge found appellant guilty and

assessed punishment at six years’ imprisonment in the Texas Department of Criminal

Justice—Institutional Division, court costs, and no fine.




                                             8
                                          II. JUDICIAL BIAS

        By his sole issue, appellant argues that the trial judge committed fundamental error

because he abandoned the role of a neutral, detached hearing officer and took on the

role of an advocate for the State.

    A. Applicable Law

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

State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli, 411 U.S.

778, 786 (1973)). A criminal trial must be held before a judge with no actual bias against

a defendant or interest in the outcome of the defendant’s case. Avilez v. State, 333

S.W.3d 661, 673 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). In the absence of a

clear showing to the contrary, we will presume that the trial judge was neutral, detached,

and unbiased in all phases of the trial. Brumit, 206 S.W.3d at 645 (citing Thompson v.

State, 641 S.W.2d 920, 921 (Tex. Crim. App. [Panel. Op.] 1982)).

        This Court has concluded that a defendant has an absolute right to an impartial

judge at both the guilt/innocence and punishment stages of the trial. Hernandez v. State,

268 S.W.3d 176, 185 (Tex. App.—Corpus Christi 2008, no pet.).2 Applying the Texas

Court of Criminal Appeals’s three-part Marin framework,3 we further concluded that a

defendant may raise an issue of the trial court’s lack of impartiality in sentencing for the


        2  At the time this Court issued its decision in Hernandez, five other courts of appeals had reached
the same conclusion. See Hernandez v. State, 268 S.W.3d 176, 184 n.34 (Tex. App.—Corpus Christi 2008,
no pet.) (collecting cases).
        3 In Marin v. State, the Texas Court of Criminal Appeals divided a defendant’s rights into three
categories: absolute rights, waiver-only rights, and forfeitable rights that must be implemented on request.
851 S.W.2d 275, 278–80 (Tex. Crim. App. 1993) (en banc), overruled on other grounds, Cain v. State, 947
S.W.2d 262, 264 (Tex. Crim. App. 1997) (en banc). The Court further held that the requirement of Rule
33.1 that a defendant must object to preserve error does not apply to rights falling within the first two
categories. See id. at 279–80; see also Blue v. State, 41 S.W.3d 129, 137 (Tex. Crim. App. 2000) (Keasler,
J., concurring) (explaining the history of the Marin framework).

                                                     9
first time on appeal so long as the complained-of conduct was “so egregious as to deem

the judge biased on the matter of punishment.” Id. at 185–86 (citing Blue v. State, 41

S.W.3d 129, 137 (Tex. Crim. App. 2000) (Keasler, J., concurring)).

       “Texas is ‘second to none’ in its disapproval of judges' examination of witnesses.”

Galvan v. State, 988 S.W.2d 291, 297 (Tex. App.—Texarkana 1999, pet. ref'd) (citing

Morrison v. State, 845 S.W.2d 882, 886 n.10 (Tex. Crim. App. 1992) (en banc)). Texas

is the only jurisdiction that has not adopted a version of Federal Rule of Evidence 614,

which explicitly permits judicial examination of witnesses. Id. However, a trial court judge

may question a witness to clarify a point or ask the witness to repeat something the judge

did not hear. Williams v. State, 89 S.W.3d 325, 328 (Tex. App.—Texarkana 2002, pet.

ref'd). Texas law discourages questioning by the trial judge in other areas because it

presents two dangers: (1) the questioning could convey the judge’s opinion of the case

to the jury and so influence their verdict; and (2) the court “in its zeal and active

participation” could assume the role of an advocate and lose the neutral and detached

role that is required of a judge. Id.

   B. Analysis

       Only the second potential harm is at issue here because the trial judge’s

examinations occurred in the context of a guilty-plea proceeding where the parties agreed

that the judge would assess punishment. See Guinn v. State, 209 S.W.3d 682, 686 (Tex.

App.—Texarkana 2006, no pet.) (“The first potential danger cannot apply in this case

since this entire proceeding was before the court during a guilty plea proceeding.”).

Appellant argues that the trial court improperly stepped into the role of the prosecutor,

something which is not consistent with due process. See United States v. Lanham, 416



                                            10
F.2d 1140, 1143 (5th Cir. 1969) (observing, in a jury trial, that “[i]t seems clear that the

trial judge determined in his own mind that Lanham was giving perjured testimony and

set out to demonstrate this to the jury. In a word, he took over prosecution. This we may

not permit.”). We agree that the trial judge put questions to appellant and Candice that

could fairly be characterized as adversarial; the judge challenged their testimony and

probed for inconsistencies in their statements.      Moreover, the general tenor of the

questions indicated that the trial court judge did not rate highly the credibility of either

witness. However, given the context, we disagree that the judge stepped into the role of

the prosecutor.

       In Moreno v. State, the Texarkana Court of Appeals confronted a similar situation:

the trial court judge extensively questioned the defendant when he testified during the

guilt/innocence phase of a bench trial. 900 S.W.2d 357, 358–59 (Tex. App.—Texarkana

1995, no pet.). The court of appeals concluded that the questioning did not rise to the

level of fundamental error because the judge was seeking facts for his role as factfinder,

the questions would have been allowed to the parties’ attorneys, the answers were within

the bounds of admissible testimony, and nothing in the record revealed that the judge

became so entangled in his role as an advocate that he could not make an objective fact

finding. Id. at 359–60.

       The extent and adversarial nature of the trial judge’s questioning of appellant and

Candice in this case is cause for unease, but after a thorough review of the record, we

conclude that the rationale of Moreno applies to this case. The trial judge appeared to be

seeking facts for his role as factfinder, the questions the judge asked of appellant and

Candice would not have been out of bounds to the parties’ attorneys, and the answers of



                                            11
both were within the bounds of admissible testimony. See Moreno, 900 S.W.2d at 359–

60; see also Guinn, 209 S.W.3d at 686 (concluding that the trial judge was authorized to

inquire into facts relevant to disposing of the petition for community supervision filed by

an appellant who entered a guilty plea). It is also relevant that appellant asked the judge

to place him on community supervision. Appellant’s request required the judge to make

an independent determination regarding whether suspending the sentence and placing

him on community supervision was in the best interests of justice, society, and appellant.

TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3(a) (West, Westlaw through 2013 3d C.S.).

Many of the trial judge’s questions were directed at testing appellant’s story that Herrick

induced appellant not to testify and also promised to assist appellant with any resulting

legal issues. We agree with the Guinn Court that the trial judge had some leeway to

follow up on this issue after the parties’ attorneys finished their examination, even though

some of the questions went beyond what was necessary for the trial court to make a

decision. See Guinn, 209 S.W.3d at 686–87 (holding that the trial judge did not commit

fundamental error by questioning a defendant about his drug use after the witness had

testified during the punishment phase that using alcohol and marijuana contributed to his

offense, even though some of the judge’s questions went beyond what was strictly

necessary); see also Agee v. State, No. 03-01-00338-CR, 2002 WL 219874, at *2 (Tex.

App.—Austin Feb. 14, 2002, pet. ref'd) (mem. op, not designated for publication) (holding

that in a bench trial where the judge was to assess punishment, the trial court did not

commit fundamental error by questioning witnesses on issues that were raised in their

testimony and that were relevant to punishment). Finally, even though we agree that the




                                            12
trial judge’s questions were improperly adversarial,4 the record does not indicate that the

judge became involved as an advocate to such an extent that he could not impartially

assess punishment. See Moreno, 900 S.W.2d at 359–60; see also Guinn, 209 S.W.3d

at 686–87. Because appellant has not demonstrated that the trial judge’s behavior was

so egregious as to deem him biased, we conclude that appellant has not demonstrated

fundamental error. See Hernandez, 268 S.W.3d at 185 (holding that trial judge’s conduct

rises to the level of fundamental error if it is “so egregious as to deem the judge biased

on the matter of punishment”). We accordingly overrule appellant’s sole issue.

                                          III. CONCLUSION

       We affirm the judgment of the trial court.




                                                     NORA L. LONGORIA
                                                     Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
15th day of January, 2015.




       4   See Trung The Luu v. State, 440 S.W.3d 123, 128 (Tex. App.—Houston [14th Dist.] 2013, no
pet.) (“A judge should not act as an advocate or adversary for any party.”).

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