Opinion
No. 05-18-00376-CR
05-30-2019
ROMAN JEREMIAH TYLER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas
Trial Court Cause No. F-1745286-H
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Nowell
Opinion by Justice Nowell
Roman Jeremiah Tyler appeals the trial court's judgment adjudicating him guilty of aggravated robbery. In three issues, appellant asserts the trial court erred by improperly considering facts not in evidence and abandoning its role as a neutral and detached magistrate. In two additional issues, appellant asks that we modify the trial court's judgment. We modify the trial court's judgment and affirm as modified.
In May 2017, the State charged appellant with aggravated robbery. Appellant entered an open plea of guilty to the offense, and the trial court placed him on deferred adjudication community supervision with a required placement in a Substance Abuse Felony Punishment Facility (SAFPF). On February 1, 2018, the State filed a motion to revoke probation or proceed with an adjudication of guilt. The trial court held a hearing on February 12, 2018, and appellant entered an open plea of "true" to allegation "t" in the motion to revoke. Allegation "t" states appellant "failed to participate in the Substance Abuse Punishment Facility Program operated by the Institutional Division of the Texas Department of Criminal Justice and comply with all rules and regulations, attending all sessions and continuing in the program until successfully released from the Program or until the Court releases the defendant from the Program." After hearing appellant's testimony, the trial court adjudicated appellant guilty, revoked his community supervision, and sentenced him to ten years' incarceration. This appeal followed.
In his first, second, and third issues, appellant argues the trial court improperly considered facts not in evidence when deciding whether to continue community supervision or proceed with an adjudication of guilt. Specifically, appellant claims the trial court abandoned the role of neutral and detached magistrate, in violation of his constitutional rights, when the court questioned him "in a manner that exceeded the scope of permissible questioning." At the revocation hearing, appellant testified he had been in custody since March 22, 2018, and, while participating in the SAFPF program, he was in a fight. Appellant explained he confronted his bunkmate after discovering "something" was missing from his locker. His bunkmate later "ended up getting into it" with a group of older men who were gambling nearby. Appellant testified the other men told him he had to fight too; otherwise, they said, "we are going to fight this dude, then we are going to beat you up, too."
The record incorrectly uses the acronyms SAIFP and SAEFP for the Substance Abuse Felony Punishment Facility program.
After appellant's attorney finished questioning him, the trial court asked a few questions:
THE COURT: This issue with SAEFP [sic], I understand it's on videotape. Apparently this guy that got beat up [sic] and was complaining about people shooting dice and making noise when he wanted to sleep?
THE DEFENDANT: Yeah. The things that were going on when this situation happened.
THE COURT: In exchange for him complaining about people shooting dice, he got beat up [sic]?
THE DEFENDANT: I didn't have anything to do. He was stealing out of my locker and I confronted [him] about that. After that, I did not do anything.Although appellant acknowledges he did not object to the court's questions, which generally would forfeit any resulting error, he asserts he was not required to do so because the judge's questions constitute fundamental error. See Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001).
THE COURT: He was stealing out of your locker?
THE DEFENDANT: Yes.
THE COURT: At the same time he was complaining about wanting to sleep?
THE DEFENDANT: No. Later on in the day, he complained about them. I had just got out of the shower and came over to the bunk when this all started happening.
THE COURT: However this thing started, you apparently are on videotape participating in the punching and kicking?
THE DEFENDANT: I did.
Due process requires a neutral and detached judge preside over a revocation hearing. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). However, a neutral and detached hearing officer is not synonymous with a silent observer. Williamson v. State, No. 05-17-00411-CR, 2018 WL 388025, at *2 (Tex. App.—Dallas Jan. 12, 2018, pet. ref'd) (mem. op., not designated for publication) (citing Hill v. State, No. 05-14-01445-CR, 2016 WL 1554932, at *2 n.3 (Tex. App.—Dallas Apr. 14, 2016, no pet.) (mem. op., not designated for publication)). "This is especially true where the judge is charged with developing facts to inform his exercise of discretion." Hill, 2016 WL 1554932, at *2 n.3 (citing Marshall v. State, 297 S.W.2d 135, 136-37 (Tex. Crim. App. 1956)). Absent a clear showing of bias, we presume that a judge acted as a neutral and detached hearing officer. Brumit, 206 S.W.3d at 645.
The terms "bias" and "prejudice" do not include all unfavorable rulings toward an individual, but instead must "connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess." Williamson, 2018 WL 388025, at *2 (citing 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)). Judicial remarks during 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. Id. (citing McDaniel, 2016 WL 7473902, at *4). Further, bias almost never can be shown based solely on the judge's rulings in a case. See Charboneau v. State, No. 05-13-00340-CR, 2014 WL 7476392, at *4 (Tex. App.—Dallas Dec. 30, 2014, no pet.) (mem. op., not designated for publication) (citing Liteky v. United States, 510 U.S. 540, 555 (1994) (judicial rulings "can only in the rarest circumstances evidence the degree of favoritism or antagonism required to establish bias")). "Expressions of impatience, dissatisfaction, annoyance, and even anger" in the ordinary conduct of court administration does not establish bias. Liteky, 510 U.S. at 555-56. Rather, judicial remarks during a trial will support a bias or partiality challenge if "they display a deep-seated favoritism or antagonism that would make a fair judgment impossible." Id. at 555.
After reviewing the record, we conclude the trial court did not display bias or prejudice toward appellant or otherwise fail to act as a neutral and detached hearing officer. A judge is permitted to directly question a witness, including a defendant, when seeking information to clarify a point. Williamson, 2018 WL 388025, at *2 (citing Conner v. State, No. 05-15-01004-CR, 2016 WL 3144180, at *2 (Tex. App.-Dallas June 2, 2016, no pet.) (mem. op., not designated for publication)). Here the trial judge asked appellant additional questions about a fight that was raised by appellant's counsel on direct examination. The only fact the trial judge added was that the incident may have been on videotape. However, the record does not show how the trial judge became aware of the video tape or that he watched it. It merely reflects the judge was aware of it. The record does not show the judge obtained "knowledge that the subject ought not to possess." See id. (citing McDaniel, 2016 WL 7473902, at *4). We overrule appellant's first, second, and third issues.
In his fourth and fifth issues, appellant requests we modify the judgment to show he entered a plea of true only to allegation "t" and did not plead true to the other allegations in the State's motion to adjudicate. The State agrees the judgment should be modified. This Court may modify the trial court's judgment to make the record speak the truth when it has the necessary data and information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W. 2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W. 2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd).
The State's motion to revoke includes seven allegations that appellant failed to comply with the conditions of community supervision. At the hearing on the motion, the State orally withdrew six allegations—"h," "j," "k," "l," "n," and "q" —and appellant pleaded true to allegation "t." However, the judgment states appellant violated the terms and conditions of community supervision as set forth in the State's motion to adjudicate guilt and attaches the motion to the judgment. Because the trial court only found one allegation to be true, rather than the seven allegations originally included in the motion, we conclude the suggested modifications to the judgment are supported by the record. We modify the trial court's judgment to correctly reflect appellant only pleaded true to allegation "t" and the State withdrew the remaining allegations. We sustain appellant's fourth and fifth issues.
We modify the trial court's judgment and affirm as modified.
/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
180376F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 1, Dallas County, Texas
Trial Court Cause No. F-1745286-H.
Opinion delivered by Justice Nowell. Justices Bridges and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
We DELETE the phrase "(5) While on community supervision, Defendant violated the terms and conditions of community supervision as set out in the State's Original Motion to Adjudicate Guilt as follows: See attached Motion to Adjudicate Guilt."
We ADD the phrase: "(5) While on community supervision, Defendant violated the terms and conditions of community supervision as set out in the State's Original Motion to Adjudicate Guilt as follows: Term and Condition "t" that defendant failed to participate in the Substance Abuse Punishment Facility Program operated by the Institutional Division of the Texas Department of Criminal Justice and comply with all rules and regulations, attending all sessions and continuing in the program until successfully released from the Program or until the Court releases the defendant from the Program. The State withdrew the remaining allegations stated in its Original Motion to Revoke Probation or Proceed with an Adjudication of Guilt." As REFORMED, the judgment is AFFIRMED. Judgment entered this 30th day of May, 2019.