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                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-13-00093-CR
                            ____________________

                        JAMES RYAN ROSS, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
___________________________________________________________________             __

                     On Appeal from the 9th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-12-12875 CR
____________________________________________________________________             _

                          MEMORANDUM OPINION

      Appellant James Ryan Ross appeals his conviction for burglary of a

habitation, for which he received a sentence of twenty years in prison after

pleading guilty to the trial court without the benefit of a plea bargain agreement.

On appeal, Ross contends the trial court violated his constitutional right to an

impartial finder of fact. We conclude the record does not support Ross’s claimed

constitutional violation and we affirm the trial court’s judgment.




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      Ross waived his right to indictment and to trial by jury and entered a guilty

plea to burglary of a habitation as a second degree felony. See Tex. Penal Code

Ann. § 30.02(a), (c)(2) (West 2011); see also Tex. Code Crim. Proc. Ann. arts.

1.13, 26.13 (West Supp. 2014), art. 1.141 (West 2005). After the trial court

accepted Ross’s guilty plea, defense counsel called Ross to the stand for the

limited purpose of making a record of Ross’s rejection of a plea bargain offer of

three years of confinement. The trial court admonished Ross of the range of

punishment for the charged offense, warned that, at that moment, he knew none of

the facts of the case but, when it was time to decide Ross’s sentence the court

would not be obliged to follow either party’s recommendation on punishment, and

asked Ross to consider that he could possibly receive the maximum sentence if he

rejected the plea bargain offer and persisted in his open plea.

      The rejected plea bargain offer was never mentioned the following month

during the sentencing hearing. The trial court heard testimony from the arresting

officer, two victims of the burglary, a county probation officer, Ross’s mother, and

Ross. The trial court mentioned information contained in the presentence

investigation report, none of which related to a rejected plea bargain offer.

      Ross did not file a motion to recuse or raise his appellate issue in the trial

court. Generally, the failure to make a timely motion to recuse waives an appellate

complaint concerning a right to have another judge decide the case. See Arnold v.
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State, 853 S.W.2d 543, 544-45 (Tex. Crim. App. 1993). On appeal, Ross cites

Blue v. State for the proposition that his right to be punished by an impartial

tribunal is an absolute requirement. 41 S.W.3d 129, 131 (Tex. Crim. App. 2000).

In Blue, the Court of Criminal Appeals addressed the appellant’s complaint that the

trial court’s comment to the venire—that the defendant was considering entering

into a plea agreement and that the judge would have preferred that he plead

guilty—tainted the presumption of innocence. Id. at 132. As a plurality decision

based upon disparate rationales, Blue has no precedential authority. Unkart v.

State, 400 S.W.3d 94, 101 (Tex. Crim. App. 2013). Blue is also distinguishable on

its facts, as it involved a trial court’s prejudicial comments to the venire, not the

admission of evidence without objection in a guilty plea proceeding. See Blue, 41

S.W.3d at 132.

      “[A]bsolute requirements and prohibitions, like rights which are waivable

only, are to be observed even without partisan request.” Marin v. State, 851

S.W.2d 275, 280 (Tex. Crim. App. 1993), overruled on other grounds by Cain v.

State, 947 S.W.2d 262 (Tex. Crim. App. 1997). Thus, the violation of an absolute

requirement may be raised for the first time on appeal. Id. The Sixth Amendment

right to an impartial factfinder is not an absolute requirement immune from waiver.

See State v. Morales, 253 S.W.3d 686, 697 (Tex. Crim. App. 2008). But, the Due

Process Clause of the Fourteenth Amendment “requires a ‘fair trial in a fair
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tribunal . . . before a judge with no actual bias against the defendant or interest in

the outcome of his particular case.” Bracy v. Gramley, 520 U.S. 899, 904-05

(1997) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975)). Therefore, we

examine the record to determine whether Ross’s complaint rises to the level of the

due process violation recognized in cases such as Berger v. United States, an

espionage case where the trial judge stated that German-Americans are “reeking

with disloyalty.” 255 U.S. 22, 28, 36 (1921) (internal quotations omitted).

      Information the trial court properly and necessarily obtains in the course of

the proceedings ordinarily will not supply grounds for recusal for bias or prejudice,

much less for disqualifying the judge from further participation in the case. See

Liteky v. United States, 510 U.S. 540, 551 (1994). Partiality that will give rise to a

claim for recusal refers only to favoritism that is wrongful or inappropriate. Id. at

552. To establish a disqualifying bias the record must show “such a high degree of

favoritism or antagonism as to make fair judgment impossible.” Id. at 555.

      This record does not support Ross’s claim that the trial court considered the

rejected plea bargain offer when he determined an appropriate sentence for Ross.

On appeal, Ross argues that, as plea bargain negotiations, the evidence of the plea

bargain offer was inadmissible. See Tex. R. Evid. 410. But, the rejected plea

bargain offer was not offered as punishment evidence. Defense counsel offered the

evidence for the limited purpose of making a record that the plea bargain offer had
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been communicated to the defendant and voluntarily rejected by him. See

generally Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012). We disagree with Ross’s

argument that the trial court’s admonishments to the defendant when the trial court

accepted the guilty plea demonstrates that the trial court considered the evidence

when it decided punishment the following month. The evidence was offered for a

limited purpose, to show that the defendant’s guilty plea was voluntarily made.

When evidence is offered for a limited purpose, we presume the factfinder

considered the evidence only for that purpose. See Thrift v. State, 176 S.W.3d 221,

224 (Tex. Crim. App. 2005). Nothing in the record indicates that the trial court

considered the plea bargain negotiations for an improper purpose. We overrule the

sole issue presented in this appeal and we affirm the trial court’s judgment.

      AFFIRMED.


                                              ________________________________
                                                        CHARLES KREGER
                                                            Justice

Submitted on April 3, 2014
Opinion Delivered October 8, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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