                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00602-CR

                                            Kenneth MUNA,
                                               Appellant

                                                 v.
                                                The
                                        The STATE of Texas,
                                              Appellee

                    From the 83rd Judicial District Court, Val Verde County, Texas
                                      Trial Court No. 12715CR
                             Honorable Robert Cadena, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: July 1, 2015

AFFIRMED

           Kenneth Muna appeals his conviction for two counts of aggravated sexual assault of a

child. Muna was sentenced to two life sentences, to be served consecutively. In one issue on appeal,

Muna argues the trial judge’s comments made during voir dire concerning probation amounted to

structural error, resulting in a denial of his right to a fair and impartial judge. We affirm.

                                            BACKGROUND

           During voir dire, the judge instructed the jury at length about various matters concerning

the trial. The judge explained both the guilt/innocence and punishment phases of the trial. In
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ascertaining whether the jurors could consider the full range of punishment, the trial court advised

the jury that the possible punishment range was not less than two nor more than twenty years

imprisonment and a fine of up to $10,000. The judge also told the jury that probation was a

possibility. 1 In informing the jury that in order to consider probation, the punishment assessed

must be less than ten years, the trial judge stated the following:

         Probation is where there is not a confinement period in the penitentiary, but rather
         that individual is placed on probation and he is supervised by the probation
         department and under the terms and conditions that are set by this Court. Of course,
         I also set the conditions of the probation. You don’t do that. You just say whether
         there is to be probation or not. Only if the term of confinement is for ten years or
         less will you consider giving probation. In other words, you sentence him in that
         range of punishment, the two to twenty, and you somehow come up with ten years
         or less as an appropriate punishment. Then you also find that he has never been
         convicted before of a felony, so then you can recommend a probated sentence. In
         that event, I must grant it.

         Now all of the parties here need to know if you can consider that option or not.
         Nobody is binding you right now one way or the other, because you haven’t heard
         the facts of the case. But you just have to be able to consider the full range of
         punishment, and probation is up here if the sentence is ten years or less.

         All the punishment matters is that you can consider that range of punishment only
         after hearing all of the evidence in the case. That’s the only way that you would be
         able to consider it, is after you have heard everything.

         Now that’s just a possibility, a possibility of probation, but that’s only if you have
         found him guilty and the term of confinement that you set is ten years or less. Now
         the definition of consider is that you just have to think carefully about it. That
         suggests that you have to make an objective reflection and reason about it, and that
         you’re not simply going to just jump to a certain conclusion. You have got to think
         about it.

(emphasis added). Muna did not object to the trial judge’s comments.




1
 The State points out in its brief that the punishment range discussed by the judge was inaccurate. In fact, Muna was
not even eligible for probation. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(d)(5) (West Supp. 2014) (stating
defendant not eligible for probation if convicted of aggravated sexual assault where the victim was younger than
fourteen years of age at the time of the offense). Muna, however, does not complain of the inaccuracy of the judge’s
discussion with the jury during voir dire.

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                                                     DISCUSSION

         Muna’s complaint is that the italicized portions of the above-quoted instruction “resulted

in structural error, thereby denying [him] of his constitutional right to a fair and impartial judge.”

In Arizona v. Fulminante, 499 U.S. 279, 294 (1991), the Supreme Court explained that some errors

strike “at fundamental values of our society” and “undermine[] the structural integrity of the

criminal tribunal itself.” Such “structural” errors are “not amenable to harmless-error review.” 2 Id.

Among these structural errors is the denial of an impartial judge. 3 See id. The “presence on the

bench of a judge who is not impartial” deprives a defendant of his basic protections and infects the

entire trial process from beginning to end. Id. at 309-10. The constitutional deprivation of an

impartial judge affects the “framework within which the trial proceeds” and prevents the criminal

trial from “reliably serv[ing] its function as a vehicle for determination of guilt or innocence.” Id.

at 310. Muna claims the trial judge’s comments “indicated his opinion of the merits of Muna’s

application for probation,” showing that he was not impartial. We disagree.

         In discussing judicial bias and partiality, the United States Supreme Court has explained

that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”

Liteky v. United States, 510 U.S. 540, 555 (1994). And, “opinions formed by the judge on the basis

of facts introduced or events occurring in the course of the current proceedings, or of prior

proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-

seated favoritism or antagonism that would make fair judgment impossible.” Id. “Thus, judicial

remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel,


2
  A defendant does not waive structural error by failing to lodge an objection at trial, and structural error may be
brought for the first time on appeal. See Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).
3
  Structural error has been found in a very limited class of cases: a total deprivation of the right to counsel, lack of an
impartial trial judge, unlawful exclusion of grand jurors of defendant’s race, the right to self-representation at trial,
the right to a public trial, and an erroneous reasonable-doubt instruction the jury. See Johnson v. United States, 520
U.S. 461, 468-69 (1997). “Most constitutional errors are not ‘structural’; that is, they can be harmless.” Mendez, 138
S.W.3d at 340.

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the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id. “They may

do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they

reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” 4 Id.

(emphasis in original). “Not establishing bias or partiality, however, are expressions of impatience,

dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and

women, even after having been confirmed as federal judges, sometimes display.” Id. at 555-56.

(emphasis in original).

        The two specific statements about which Muna complains were contained in the trial

judge’s general voir dire and had to do with the possibility of sentencing Muna to probation.

Specifically, Muna complains of the statements, “and you somehow come up with ten years or less

as an appropriate punishment,” and “[n]ow that’s just a possibility, a possibility of probation.”

(emphasis added). Considering these statements in the context of the trial judge’s general voir dire,

there is nothing in these statements that show the trial judge was biased or partial. We therefore

conclude the record does not support Muna’s claim of structural error and affirm the judgment of

the trial court.


                                                             Karen Angelini, Justice


Do not publish




4
 The Court cited the trial judge’s comments in Berger v. United States, 255 U.S. 22 (1921), as such an example.
Liteky, 510 U.S. at 555. In Berger, 255 U.S. at 28, which was a World War I espionage case against German–American
defendants, the trial judge stated, “One must have a very judicial mind, indeed, not [to be] prejudiced against the
German Americans” because their “hearts are reeking with disloyalty.”

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