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Texas Court of Criminal Appeals: Right to Appeal Judge’s Questioning Not Forfeited by Failure to Object

by Dale Chappell

The right to appeal a judge’s improper questioning of a witness during trial was not forfeited by the defendant’s failure to object contemporaneously because such an error is not forfeitable and can be raised for the first time on appeal, the Court of Criminal Appeals of Texas (“CCA”) held.

Abraham Proenza was charged with injury to a child after a baby in his care became sick and died after he failed to seek medical help based on what he says was a genuine misunderstanding that he could not seek medical help for the baby. During trial, a witness who was testifying about the misunderstanding was questioned by the judge. When the witness verified that the clinic would not have seen the sick baby had he brought him in because Proenza was not a parent or guardian, the judge seemed incredulous. The judge began asking why in front of the jury, saying that his own doctor did not have such rules. Proenza did not object to the judge’s questioning.

The jury convicted Proenza, and the judge sentenced him to 40 years in prison. He appealed to the Thirteenth Court of Appeals, arguing that the judge commented on the weight of the evidence or conveyed an opinion of the case, which was improper. Although he did not object to the judge’s questioning at trial, the court of appeals characterized Proenza’s claim “that fundamental error occurred,” such that he could raise the issue for the first time on appeal.

After reviewing the substance of what the trial judge said, the court of appeals held that fundamental error had occurred, thus “rendering a trial-level objection to the comments unnecessary to preserve complaint on appeal.” The court concluded that it could not say beyond a reasonable doubt that the trial judge’s error did not contribute to his conviction, and thus, it reversed. The State appealed, arguing that Proenza forfeited the right to complain about the judge’s comments on appeal because he had not objected at trial.

The CCA began its analysis by reviewing the applicable law. Texas Code of Criminal Procedure Article 38.05 provides that a trial judge “shall not discuss or comment upon the weight [of the evidence] or its bearing in the case.” The question boiled down to whether the judge had an “independent duty to ensure compliance with Article 38.05,” or whether Proenza had to raise it himself by objecting, the Court explained.

In the seminal case of Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), the CCA described three distinct categories of error-preservation rules: (1) absolute requirements and prohibitions that cannot be waived or forfeited; (2) rights that must be implemented by the court, unless expressly waived by the defendant; and (3) rights that are implemented only upon a defendant’s request.

The CCA announced that “claims of improper judicial comments raised under Article 38.05 are not within Marin’s third class of forfeitable rights.” Instead, the CCA held that “the right to be tried in a proceeding devoid of improper judicial commentary is at least a category-two, waiver-only right.” The record does not indicate that Proenza “plainly, freely, and intelligently waived his right to his trial judge’s compliance with Article 38.05.” Accordingly, his statutory claim (as opposed to constitutional claim) was not forfeited and may be raised for the first time on appeal.

The CCA next addressed whether he was harmed. Under Texas Rule of Appellate Procedure 44.2(b), the non-constitutional standard for reversible error requires a showing that “a substantial right was affected.” The CCA noted that the lower court of appeals incorrectly applied the constitutional-error harm standard in determining that Proenza was harmed and declined to make a determination on the issue for the first time on discretionary review.

Accordingly, the CCA affirmed the lower court’s ruling, though on different grounds, that Proenza was entitled to appellate review of the trial judge’s questioning, despite the fact he did not contemporaneously object and remanded the “case to the court of appeals to apply the proper harm analysis on the merits of Proenza’s claim.”

See: Proenza v. State, 2017 Tex. Crim. App. LEXIS 1168 (2017). 

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Proenza v. State



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