                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo
                                     ________________________

                                         No. 07-18-00005-CR
                                     ________________________


                                 ASHLEE ANNE DEAN, APPELLANT

                                                      V.

                                 THE STATE OF TEXAS, APPELLEE



                               On Appeal from the 106th District Court
                                         Garza County, Texas
                 Trial Court No. 14-2699; Honorable Carter T. Schildknecht, Presiding1


                                               June 28, 2019

                                   MEMORANDUM OPINION
                          Before QUINN, C.J., and PIRTLE and PARKER, JJ.


        Following a plea of not guilty, Appellant, Ashlee Anne Dean, was convicted by a

jury of capital murder.2 Appellant was charged with intentionally and knowingly causing


        1 The Honorable Cecil Puryear, Senior Judge of the 137th District Court, was assigned to the case

after Judge Schildknecht voluntarily recused herself at the motion for new trial phase.
        2   TEX. PENAL CODE ANN. § 19.03(a)(8) (West 2019) (murder of an individual under ten years of age).
the death of her daughter, Alexandria Lee Courtney, an individual younger than ten years

of age, by shooting her with a deadly weapon, to-wit: a firearm.          Punishment was

assessed by the trial court at confinement for life without the possibility of parole. By a

sole issue, Appellant contends the assigned presiding judge (appointed after the

voluntary recusal of the judge presiding at trial) erred when he quashed a subpoena duces

tecum that had been issued for the trial judge to testify at a hearing on Appellant’s motion

for new trial. We affirm.


       BACKGROUND

       Appellant was living with her boyfriend, Jason Courtney, in his house with his

children from another relationship. She became pregnant and gave birth to Alexandria in

2012. Jason’s other children became involved with Child Protective Services, causing

Alexandria and Appellant to also become involved. Alexandria was temporarily placed

with Appellant’s brother and his wife.


       Appellant, who occasionally used methamphetamine, cooperated with CPS and

worked her services. Jason, who had a serious issue with methamphetamine, was

unwilling to complete his services. On the caseworker’s recommendation, Appellant and

Jason ceased living together to improve Appellant’s chances of being reunited with

Alexandria. Jason agreed to move out of his own house so Appellant could claim it as a

permanent residence to satisfy CPS’s concerns about stable housing.


       Appellant was able to obtain the return of Alexandria from CPS and her case was

closed. She and Jason, however, continued their relationship and he visited the home

and his daughter often. Although Jason did not live there, he kept some of his belongings


                                             2
there, including a rifle he claimed he was keeping for a friend. Although Appellant did not

approve of Jason’s leaving the rifle with her, she was aware of the fact that he kept the

rifle and ammunition in the home.3


       During one of Jason’s visits, she relapsed and used methamphetamine with him.

The next day, on February 20, 2014, Jason came by the house for a visit. While getting

a shirt from the bedroom closet, he handled the hunting rifle, intending to go shooting

after work. He also asked Appellant where she kept the ammunition. He then left for

work but did not take the rifle or the ammunition with him.


       That day, Appellant had a goal of de-cluttering and cleaning the house. After Jason

left, she continued with her project by cleaning the bedroom closet where the rifle was

kept. During this time, her daughter was with her. Appellant testified that while she was

going through some clothes, she heard “the boom of the weapon” and saw that her

daughter had been shot in the head. After witnessing her daughter’s bloody head injury,

she reloaded the gun and tried to shoot herself, but failed. She subsequently called 911

to report the incident. Alexandria’s head injury was fatal. She was twenty-two months

old.


       First responders arrived and tended to Appellant’s daughter. Appellant testified

that she recalled someone from law enforcement walking her out of the house and

transporting her to jail. She was charged with capital murder; however, the State waived

the death penalty.




       3   Appellant testified she was familiar with weapons but was not comfortable with them in the house.

                                                      3
      A jury trial was held in October 2017. Following Appellant’s conviction, Judge

Schildknecht imposed the statutorily required sentence—life without the possibility of

parole. A judgment was signed on October 20, 2017.


      Appellant timely filed a motion for new trial asserting, among other grounds, that

Judge Schildknecht “exhibited improper bias” and “improperly commented on the

evidence presented to the jury” by gestures which deprived Appellant of a fair trial.

Specific complaints included “odd facial gestures,” “eye-rolling,” “winking at or laughing

with the prosecutor,” “loud exasperated sighs” during questioning by defense counsel,

and the judge signaling with her hands in frustration for defense counsel to hurry along

when questioning witnesses—particularly the State’s firearm expert.


      Appellant also alleged violations of article 38.05 of the Texas Code of Criminal

Procedure which provides that a trial judge “shall not discuss or comment upon the weight

of” the evidence in ruling on its admissibility. The motion for new trial was supported by

numerous affidavits from Appellant’s family members, the gist of which recited that Judge

Schildknecht acted unprofessionally and showed bias against Appellant.


      On November 28th, Judge Schildknecht signed an order voluntarily recusing

herself from further proceedings in the case. Judge Puryear was assigned to the case

on December 5th.      Appellant’s trial counsel moved to withdraw from the case in

anticipation of being a potential witness at the hearing on the motion for new trial. On

December 21st, counsel’s motion to withdraw was granted and new counsel was

appointed to represent Appellant for the remainder of the proceedings, including an

appeal.


                                            4
       Due to the holidays, the courthouse was closed until Wednesday, December 27th.

The next day, Appellant issued subpoenas for the twelve jurors, the two prosecutors, and

Judge Schildknecht. Judge Schildknecht was served with her subpoena duces tecum on

December 29, 2017. The subpoena commanded her to produce copies of (1) documents

relating to “any judicial education” the judge had completed within the immediate four

years relating to the open courts doctrine and/or recognizing bias or prejudice and certain

canons of the Texas Code of Judicial Conduct, (2) any correspondence, written, or by

text or electronic messages made to District Attorney Philip Mack Furlow or any other

agent or employee of the 106th Judicial District Attorney’s Office during the past ninety

days related to Appellant’s case, (3) any correspondence, written, or by text or electronic

messages made to defense counsel during the past ninety days related to Appellant’s

case, and (4) documents related to compliance with orders of the Texas Commission on

Judicial Conduct in CJC Nos. 14-1080, 15-0002-DI, and 17-423-DI.4


       Judge Schildknecht filed objections to the subpoena duces tecum and a motion to

quash on the grounds that she received inadequate notice (two business days) of the

subpoena the Friday morning before New Year’s Day weekend and that any testimony

she could offer would be neither material nor favorable to Appellant. On January 2, 2018,

the day before the scheduled hearing on Appellant’s motion for new trial, the trial court

granted Judge Schildknecht’s motion to quash without allowing Appellant an opportunity

to present evidence.




        4 The documents requested were prior reprimands against Judge Schildknecht in 2015 and 2017

which Appellant claimed were the same types of matters about which she was complaining in her motion
for new trial.


                                                 5
       The next day, at the hearing on the motion for new trial, the trial court first

entertained arguments and objections on motions to quash filed by the district attorney

and an assistant district attorney.5 Appellant’s counsel argued the trial court should not

have quashed Judge Schildknecht’s subpoena a day earlier without an opportunity to be

heard. He sought to question the judge on why she had voluntarily recused herself and

also question her on past judicial misconduct complaints.


       At the hearing, the trial court heard testimony from five jurors, Appellant’s trial

counsel, and some of Appellant’s family members. Although one juror observed Judge

Schildknecht make hand gestures during Appellant’s trial, encouraging Appellant’s

counsel to move along more quickly, each of the five confirmed that nothing the judge did

or said influenced their verdict. At the conclusion of the hearing, the trial court found that

Judge Schildknecht’s conduct did not prejudice the jury against Appellant and denied the

motion for new trial.


       By a sole issue, Appellant contends the assigned presiding judge erred when he

quashed the subpoena duces tecum that had been issued for Judge Schildknecht to

testify at the hearing on the motion for new trial. That ruling, Appellant argues, constituted

a denial of her constitutional rights to confront a witness, as well as her right under article

38.05 of the Texas Code of Criminal Procedure to be free from a trial court’s comments

on the weight of the evidence. We disagree.




       5  The subpoenas served on the district attorney and a member of his staff were quashed before
hearing testimony on the motion for new trial, but those rulings are not at issue here.

                                                 6
        APPLICABLE LAW

        Due process requires the right to a trial before a neutral and detached tribunal and

every defendant is entitled to a fair and impartial judge. Fraser v. State, 523 S.W.3d 320,

338 (Tex. App.—Amarillo 2017, State’s pet. granted Nov. 1, 2017) (citing Arizona v.

Fulminante, 499 U.S. 279, 309, 111 S. Ct. 246, 113 L. Ed. 2d 302 (1991)). The denial of

an impartial judge is a structural defect which defies harmless error standards.

Fulminante, 499 U.S. at 309.


        The Sixth Amendment of the United States Constitution ensures that a defendant

in a criminal prosecution shall have the right to compulsory process for obtaining

witnesses in his favor. U.S. CONST. VI; TEX. CONST. art. I, § 10. That right, however, is

not absolute.       The Sixth Amendment does not guarantee the right to secure the

attendance and testimony of any and all witnesses; rather, it guarantees only compulsory

process for obtaining witnesses whose testimony would be both material and favorable

to the defense. Coleman v. State, 966 S.W.2d 525, 527-28 (Tex. Crim. App. 1998). To

exercise the federal constitutional compulsory right, the defendant must make a

preliminary showing to the trial court, by sworn evidence or agreed facts, that the

witness’s testimony would be both material and favorable. Id. at 528.


        In addition, article 38.05 of the Texas Code of Criminal Procedure prohibits a trial

judge from commenting on the weight of the evidence in criminal proceedings. See TEX.

CODE CRIM. PROC. ANN. art. 38.05 (West 1979). See also Proenza v. State, 541 S.W.3d

786, 791 (Tex. Crim. App. 2017).6 As such, a trial judge must also refrain from making


        6  A complaint that a trial judge violated article 38.05 creates a waivable only right and may be raised
for the first time on appeal. Proenza, 541 S.W.3d at 801.

                                                       7
any remark or non-verbal gesture calculated to convey to the jury her opinion of a pending

case. Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003). “[J]urors are prone

to seize with alacrity upon any conduct or language of the trial judge which they may

interpret as shedding light upon [her] view of the weight of the evidence, or the merits of

the issues involved.” Id. (Emphasis added).7 To constitute reversible error under article

38.05, the comment or conduct must be such that it is reasonably calculated to benefit

the State or prejudice the defendant’s rights. Id.


        STANDARD OF REVIEW

        We review a trial court’s ruling on a motion to quash a subpoena, including its

determination of whether the defendant met the burden of showing the testimony sought

was material and favorable, under an abuse of discretion standard. Drew v. State, 743

S.W.2d 207, 225 n.11 (Tex. Crim. App. 1987); Gallardo v. State, Nos. 07-16-00086-CR

& 07-16-00087-CR, 2016 Tex. App. LEXIS 13135, at *3-4 (Tex. App.—Amarillo Dec. 9,

2016, no pet.) (mem. op., not designated for publication).


        TRIAL JUDGE’S NON-VERBAL GESTURES AND CONDUCT

        Appellant carries a heavy burden in demonstrating bias by Judge Schildknecht.

Absent a clear showing of bias, we presume a trial judge is neutral and detached. Brumit

v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).


        A judge is constitutionally unacceptable when: (1) the judge has a direct personal,

substantial, and pecuniary interest in the outcome of the case; (2) the judge has been the



        7 The State argues that article 38.05 applies only to comments and that Appellant’s motion for new
trial complains only of gestures and conduct that do not rise to a violation of the statute.

                                                    8
target of personal abuse or criticism from the party before her; or (3) the judge has the

dual role of investigating and adjudicating disputes and complaints. Bigby v. Dretke, 402

F.3d 551, 559 (5th Cir. 2005). “[J]udicial remarks during the course of a trial that are

critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily

do not support a bias or partiality challenge.” Liteky v. United States, 510 U.S. 540, 555,

114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994). To establish bias, a judge’s remarks must

“reveal such a high degree of favoritism or antagonism as to make fair judgment

impossible.”    Id.   “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 . . . judges, sometimes display.” Id. at 555-56.

(Emphasis in original). “A judge’s ordinary efforts at courtroom administration—even a

stern and short-tempered judge’s ordinary efforts at courtroom administration—remain

immune.” Id. at 556. Those “ordinary efforts” certainly include the prompting of counsel

regarding the timely presentation of evidence and the avoidance of undue delay.


       In the underlying case, one juror testified that he witnessed Judge Schildknecht

roll her eyes and a throw down a pencil in apparent frustration; however, he further

testified that the conduct did not influence his verdict.     The remaining four jurors who

testified, when asked if Judge Schildknecht’s conduct influenced their verdict, all

answered negatively. On the other hand, the affidavits provided in support of Appellant’s

motion for new trial were all from interested family members. Trial counsel testified and

recounted odd gestures by Judge Schildknecht such as the rolling of her hands to signal

him to hurry while questioning witnesses. The motion for new trial also complained of

eye-rolling, exasperated sighs, and winking at the prosecutor.


                                               9
       As we did in Fraser, this court recognizes that juries tend to give a judge’s

comments and conduct “special and peculiar weight.” Fraser, 523 S.W.3d at 339 (citing

Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000)). In Fraser, after addressing

numerous inappropriate comments made by the trial judge in an emotionally charged

murder case, we concluded that those comments had not “crossed the ethereal line”

between inappropriate conduct and reversible conduct. Fraser, 523 S.W.3d at 339.

Likewise, while we do not condone some of the alleged gestures and comments made

by Judge Schildknecht in this case, also an emotionally charged murder trial, we still

embrace the opinion that “[j]udges are not autotronic dispensers of justice” and it is often

difficult to clearly delineate between appropriate and inappropriate interaction between a

judge and jurors. Id.


       Here, Appellant has not demonstrated that Judge Schildknecht’s conduct was

constitutionally unacceptable or that the complained-of gestures clearly showed bias.

Neither has she made a preliminary showing that Judge Schildknecht would have

provided material and favorable testimony had she been compelled to testify at the

hearing on the motion for new trial.


       TRIAL JUDGE’S COMMENTS

       While cross-examining the forensic scientist, defense counsel inquired into his

testing of Appellant’s blood for controlled substances. In attempting to establish the

retrograde level of methamphetamine in Appellant’s blood, several questions regarding

the date and time that her blood sample was taken were asked and answered. In his

question, counsel noted the sample was taken “February 20th, 2014, at 7:00 p.m.” In a

convoluted question/statement, Appellant’s counsel postulated that Appellant’s level at

                                            10
9:00 a.m. that same day would have been half of what it was when tested, to which Judge

Schildknecht interrupted, “Nope.” The interruption then continued as follows:


        The Court: I hate to interrupt, but I may have written down the - - at 9:00,
        what day are you talking about and are you talking about a.m. or p.m.?

        [Defense counsel]: It would be 9:00 a.m. on February 20, 2014.

        The Court: Then you’re going the wrong way.

After a bench conference, defense counsel objected to the judge’s commenting on the

weight of the evidence. She began to explain that she was attempting to clarify the

testimony when defense counsel again reminded her, “[y]ou cannot comment.” After

another bench conference, the judge instructed the jury, “I am not to comment on the

evidence, so please disregard what I just said.” Just as defense counsel began again,

the judge interrupted, “I was right.”8


        While inappropriate, these comments do not constitute reversible error. “It is not

improper for a trial judge to interject in order to correct a misstatement or

misrepresentation of previously admitted testimony.” Jasper v. State, 61 S.W.3d 413,

421 (Tex. Crim. App. 2001). Here, it is apparent Judge Schildknecht believed she was

merely pointing out that counsel was going backward in time instead of forward with his

line of questioning. As such, her comments were not intentionally calculated to benefit

the State or prejudice Appellant’s rights. Judge Schildknecht’s comments were aimed at



        8While the statement may have been petty and inappropriate, Judge Schildknecht was correct.
Based on retrograde metabolism of a controlled substance, once a user ceases to ingest a controlled
substance and the body has absorbed the substance ingested, the body begins the metabolism process,
thereby decreasing the level of a given controlled substance in one’s system over time. Therefore,
assuming no additional ingestion of the substance in question, the level at 7:00 p.m. (the time of testing)
would naturally be less than the level would have been at an earlier point in time (the time of the offense).
Defense counsel’s questions clearly demonstrate that he was confused.

                                                     11
clearing up confusion on the timeline of Appellant’s blood sample and were not made in

conjunction with a ruling on the admissibility of that evidence.          Ultimately, Judge

Schildknecht’s instruction to the jury to disregard her comments was sufficient to cure any

error that may have arisen from her statements. See Marks v. State, 617 S.W.2d 250,

252 (Tex. Crim. App. 1981). See also Green v. State, 476 S.W.3d 440, 449 (Tex. Crim.

App. 2015) (finding that trial court’s instruction in a jury charge to disregard anything that

might appear to indicate the court’s opinion on the weight to assign any of the evidence

was a curative instruction).


       Based on the cold record before us that cannot reflect Judge Schildknecht’s tone

and demeanor (something Appellant was free to establish through the witnesses who did

testify), we conclude Appellant has not demonstrated she was denied a neutral and

detached judge. As such, the assigned trial judge did not abuse his discretion in quashing

the subpoena duces tecum served on Judge Schildknecht. Appellant’s sole issue is

overruled.


       CONCLUSION

       The trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice


Do not publish.




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