                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-17-00196-CR


NABOR GAMINO CASTRO A.K.A.                                        APPELLANT
NABOR GAMINOCASTRO

                                      V.

THE STATE OF TEXAS                                                     STATE

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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1484822R

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                       MEMORANDUM OPINION1

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      Appellant Nabor Gamino Castro appeals from his conviction for continuous

violence against the family, from his suspended ten-year sentence, and from the

order placing him on community supervision for ten years. See Tex. Penal Code

Ann. § 25.11 (West 2011); Tex. Code Crim. Proc. Ann. art. 42A.053 (West Supp.

2017). Appellant argues that the trial judge’s comments during both the guilt-

      1
      See Tex. R. App. P. 47.4.
innocence and punishment phases referring to his immigration status revealed

the judge’s actual bias against him and deprived him of a fundamentally fair trial,

violating his constitutional rights to due process, equal protection, and an

impartial fact-finder. We conclude that the trial judge’s comments did not reveal

an actual bias such that Appellant’s trial was rendered fundamentally unfair.

      Appellant waived his right to a jury trial, and the trial court heard and

determined his guilt and his punishment. See Tex. Code Crim. Proc. Ann. arts.

1.13(a), 45.025 (West Supp. 2017). During the guilt-innocence phase, the trial

judge stated that Appellant’s national origin was irrelevant: “And whether you’re

born in Mexico or Montana or Mongolia, if you stand trial in the United States,

everyone in court has the same constitutional rights to a fair trial.” During the

ensuing punishment hearing, the trial judge mentioned the possible effects of the

conviction on Appellant’s immigration status and, relatedly, on his community-

supervision obligations:

      But the way I see it, I can do two things and there could be two
      results. I can give you time, and, in all fairness, under our law,
      citizen or not, Monterrey or Montana or Monahans, you’ll get credit
      for every second you’ve sat in jail presumed innocent until there was
      a conviction, which would let the parole board have the ability to let
      you out immediately whether you have any immigration issues or
      not.

            ....

            But I, quite frankly, have greater confidence in my probation
      department, that if you are allowed to remain and fulfill the American
      dream of making sure you to[e] the line, than the parole board on a
      shorter sentence.



                                        2
      ....

       . . . You are going to complete a batterer intervention program,
anger control class, before I release you to ICE [Immigration and
Customs Enforcement]. And if they come get you, they come get
you; if they don’t, they don’t. But . . . I’m going to tell you right now,
son, if you stay in the U.S., get deported and live a productive life in
the country of your birth, or anywhere in between as long as it’s legal
- - that’s your future, that’s not mine, but if you have a short fuse, it’s
going to cause problems no matter where you live.

      ....

     . . . So I’ll order you to do that before you’re released to
anyone, regardless of what decision they make.

      ....

      . . . Now, you’re going to be given a set of documents, forms,
on that report every month, report as ordered. If you do get
deported, if you get put in temporary or permanent detention
pending a deportation, you’re going to mail me a form every month
so I know where you are and know what to do and you’re doing the
best you can. . . .

      ....

       . . . If you are deported, they will . . . make this conviction part
of that process. And if you come back with a criminal conviction, . . .
the law has been that criminal re-entry has been a felony with up to
20-year federal prison sentence for coming in after a criminal
deportation and . . . federal sentences are served almost day for
day. And so you have a liability independent of the ten years you
could get in Texas for violating my rules.

      So if you are allowed to come back, make sure the I’s are
dotted and the T’s crossed or you could face two judges who are not
happy with the circumstances, not just one.

      ....

     . . . If you violate federal law and come back without proper
paperwork, if you don’t report to me within three business days of re-


                                    3
      entering the country, then you have a separate violation of
      probation. . . . Your obligation is . . . the same regardless of any
      immigration status . . . . You’d be violating the rules if you’re in the
      United States legal or illegally and you don’t report. . . . And if you
      do come back, of course legally you have the three-day rule. If you
      come back illegally, that doesn’t change the three-day rule. Three
      days within release from custody or three days from release - -
      return to the U.S.

             ....

             . . . But it would be my wish and your interest, her interest and
      society’s interest in the Western Hemisphere, wherever you may be,
      or France if you go that far, that you deal with these [anger] issues or
      they’re just going to be a problem in the future.

             ....

            . . . If you are indigent and can’t hire an attorney, . . . that will
      be provided at taxpayer expense, if you are determined to be
      indigent, regardless of your country of origin or your status.

Appellant asserts that these comments were “inappropriate and cruel,” showed

that the trial judge was actually biased2 against him, and showed that the trial

judge was not acting as an impartial fact-finder, requiring this court to remand his

case for a new trial based on constitutional error.

      Although Appellant recognizes that he did not object to the trial judge’s

comments during trial or in his motion for new trial, which generally would forfeit

any resulting error, he asserts that these comments equated to fundamental error

that requires no trial objection to present the issue to this court. See, e.g., Tex.


      2
      Appellant does not assert a presumptive bias. See generally Caperton v.
A.T. Massey Coal Co., 556 U.S. 868, 876–81 (2009) (discussing circumstances
under which a trial judge’s bias may be presumed).


                                          4
R. Evid. 103(e); Proenza v. State, No. PD-1100-15, 2017 WL 5483135, at *7

(Tex. Crim. App. Nov. 15, 2017) (“[T]he question of error preservation turns not

upon the ‘circumstances under which [an alleged error] was raised,’ but upon the

‘nature’ of the error itself.” (quoting Ex parte Heilman, 456 S.W.3d 159, 166 (Tex.

Crim. App. 2015))).     Thus, our first inquiry must be whether the judge’s

comments affected an absolute right, which may be raised for the first time on

appeal. See Proenza, 2017 WL 5483135, at *7; Aldrich v. State, 104 S.W.3d

890, 895 (Tex. Crim. App. 2003); see also Tex. R. Evid. 103(e). A trial judge’s

comment that cannot be viewed as fair and impartial is fundamental error of

constitutional dimension; therefore, a defendant does not have to object at trial to

raise this class of error on appeal. See Jasper v. State, 61 S.W.3d 413, 420

(Tex. Crim. App. 2001); Mumphrey v. State, 509 S.W.3d 565, 568 (Tex. App.—

Texarkana 2016, pet. ref’d); Avilez v. State, 333 S.W.3d 661, 671–72 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d); see also Tex. R. Evid. 103(e).

Indeed, the State does not assert that Appellant’s failure to object at the time the

trial judge made the challenged comments procedurally defaulted any error.3


      3
       The State does assert, however, that Appellant has not raised on appeal
the applicability of the disqualification and recusal grounds found in the Texas
Constitution, the code of criminal procedure, and the rules of civil procedure.
Because Appellant did not raise these provisions on appeal, we likewise will not
address them. See Tex. R. App. P. 38.1(i), 47.1. And we need not address
Appellant’s “[a]lternative[] and independent[]” argument that the trial judge’s bias
equated to an absolute disqualification because Appellant premised this
argument on a conclusion that his fundamental-error claim was procedurally
defaulted, which we have not concluded.


                                         5
See generally Darcy v. State, 488 S.W.3d 325, 327–28 (Tex. Crim. App. 2016)

(recognizing preservation is systemic requirement that appellate court must

review on its own motion).

      Accordingly, we look to the entire record to determine whether the trial

judge’s comments revealed such a degree of actual bias that he ceased to

function as a neutral and detached fact-finder, violating Appellant’s constitutional

right to a fair trial. See Bracy v. Gramley, 520 U.S. 899, 904–05 (1997); Avilez,

333 S.W.3d at 673–74; Moreno v. State, 900 S.W.2d 357, 359 (Tex. App.—

Texarkana 1995, no pet.); see also McDaniel v. State, No. 05-15-01086-CR,

2016 WL 7473902, at *4 (Tex. App.—Dallas Dec. 29, 2016, pet. ref’d) (mem. op.,

not designated for publication). But absent a clear showing of actual bias, we

presume that the trial court acted impartially. See Tapia v. State, 462 S.W.3d 29,

44 (Tex. Crim. App. 2015).

      Appellant essentially argues that because the trial judge assumed, with no

supporting evidence, that Appellant was subject to deportation and advised him

of the effects of the conviction on his legal status, the trial judge was actually

biased. But the record reflects that at least as of the first day of trial, the trial

court was aware that Appellant had an immigration hold, noting on the certificate

of proceedings, “[D]o not ref to ICE until processed by probation and comp prelim

requirements.”   And one of Appellant’s conditions of community supervision

required him to report to his community-supervision officer “within 72 hours of

being released from Federal custody, or upon return to United States.” See Tex.


                                         6
Code Crim. Proc. Ann. art. 42A.301 (West Supp. 2017).                The day after

Appellant’s trial, the trial court’s certificate of proceedings noted that Appellant

also was required to complete a battering intervention and prevention program

(BIPP) “in jail as COP before release to ICE (Follow up proceeding will be

entered upon completion of BIPP).” See id. art. 42A.504 (West Supp. 2017).

Nineteen days later, the trial court signed a certificate of proceedings that stated,

“Deft completed BIPP program[.] OK to be released to ICE.” The clerk’s record

also contains an attorney’s entry of appearance as Appellant’s representative

regarding “immigration matters” before ICE.

      We conclude that the challenged comments do not clearly show an actual

bias based on Appellant’s immigration status but, instead, reflect a careful trial

judge who attempted to inform Appellant of the consequences of his conviction

and how his community supervision could be affected by any subsequent

deportation proceedings. See Goldman v. State, No. 05-06-01581-CR, 2008 WL

1704294, at *2 (Tex. App.—Dallas Apr. 14, 2008, pet. ref’d) (mem. op., not

designated for publication) (concluding trial judge’s misstatements about the

applicable sentencing options were not fundamental error because statements

not made to a jury and showed “misapprehension about the law, . . . not

impartiality or unfairness”); cf. Unkart v. State, 400 S.W.3d 94, 102 (Tex. Crim.

App. 2013) (concluding judicial comments did not mandate mistrial because trial

court “engaged in a well-intentioned effort to protect appellant’s rights”). Even if

the trial judge had been mistaken about Appellant’s residency status, the judge’s


                                         7
comments did not show that he was actually biased against Appellant on that

basis. Instead, the judge repeatedly stated that Appellant would be treated the

same regardless of his national origin. See, e.g., Mumphrey, 509 S.W.3d at

568–69; Peterson v. State, No. 05-12-01417-CR, 2013 WL 5776287, at *2–4

(Tex. App.—Dallas Oct. 24, 2013, no pet.) (mem. op., not designated for

publication); Wilson v. State, No. 05-12-00831-CR, 2013 WL 4399193, at *6

(Tex. App.—Dallas Aug. 15, 2013, no pet.) (mem. op., not designated for

publication). And, importantly, the trial judge found Appellant not guilty of the

more serious charge brought against him—aggravated assault with a deadly

weapon—and placed him on community supervision for the continuous-family-

violence conviction even though the State opposed community supervision and

requested imprisonment.    We conclude that there was no fundamental error

arising from the trial judge’s comments. See Peterson, 2013 WL 5776287, at *4.

      We overrule Appellant’s issue and affirm the trial court’s judgment. See

Tex. R. App. P. 43.2(a).


                                                 /s/ Lee Gabriel

                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: GABRIEL, KERR, and BIRDWELL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 1, 2018



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