Johnson , supra .Fraser v. State , 523 S.W.3d 320, 329-33 (Tex. App.–Amarillo 2017).
Johnson, supra. Fraser v. State, 523 S.W.3d 320, 329-33 (Tex. App.-Amarillo 2017). Id. at 329-34.
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.
It reasoned that the conviction was potentially based upon a reckless or criminally-negligent act that caused the complainant's death, which would run afoul of the statutory provision exempting manslaughter (a recklessly-caused death) as a predicate for felony murder.Fraser v. State, 523 S.W.3d 320, 334 (Tex. App.—Amarillo 2017).
This case is before this Court for a third time. See Fraser v. State, 523 S.W.3d 320 (Tex. App.- Amarillo 2017) (reversing conviction) (Fraser I), rev'd 583 S.W.3d 564 (Tex. Crim. App. 2019) (reversing and remanding) (Fraser II); Fraser v. State, 593 S.W.3d 883 (Tex. App.-Amarillo 2019, pet. ref'd) (Fraser III).
An incorrectly alleged predicate offense is fundamental error where, as here, it cannot be ascertained whether the jury voted to convict based upon the proper predicate offense of delivery of a controlled substance or the improper predicate offense of possession with intent to deliver. SeeFraser v. State, 523 S.W.3d 320, 342 (Tex. App.—Amarillo 2017, pet. granted) (finding that when a jury charge allows for conviction on a theory not supported by the law, the verdict cannot stand). Although the Court of Criminal Appeals has determined that the enumerated predicate offenses listed under section 71.02(a) are merely alternate manner and means of committing the offense of engaging in organized criminal activity and are not elements of the primary offense; O'Brien , 544 S.W.3d at 391, such a distinction is of little consequence where, as here, the jury charge allows for a conviction based upon facts which do not constitute the offense charged.
(unpublished) ("In order to show that Appellant committed the offense of injury to an elderly person, the State was required to show that Appellant intentionally or knowingly caused serious bodily injury to a person over the age of 65."); Fraser v. State , 523 S.W.3d 320, 325 (Tex. App.—Amarillo 2017), rev'd, 583 S.W.3d 564 (Tex. Crim. App. 2019) ("A person commits the offense of injury to a child if she intentionally, knowingly, recklessly, or by criminal negligence causes bodily injury or serious bodily injury to a child fourteen years old or younger."); Arteaga-Roman v. State , No. 09-17-00188-CR, 2018 WL 2324686, at *5 (Tex. App.—Beaumont May 23, 2018, no pet.) (unpublished) ("[A] person commits the offense of injury to a child if he intentionally or knowingly causes bodily injury to a child."); Hicks v. State , 241 S.W.3d 543, 544 (Tex. Crim. App. 2007) (stating that the defendant was convicted of "injury to a disabled individual" by "intentionally or knowingly causing serious bodily injury to a disabled individual"); Kelly v. State , 748 S.W.2d 236, 237–38 (Tex. Crim. App. 1988) (stating that the defendant was "convicted of the offense of injury to an elderly individual" after the jury found beyond a reasonable doubt that he caused serious bodily injury to "an individual who
Right? And you swear to tell the jury the truth. Right?"); Orosco v. State , No. 03-15-00383-CR, 2017 WL 2873352 *7-8, 2017 Tex. App. LEXIS 6111 *23-28 (Tex. App.—Austin June 29, 2017, pet. filed) (not designated for publication) (complaint about the fact that trial court expressed frustration with the defendant's repeated failures to answer the questions asked and to instead provide unrelated commentary, which the court described as a "diatribe" on two occasions, and the court repeatedly warned the defendant that additional failures to answer the questions asked or to behave in the manner required in judicial proceedings could result in the imposition of limitations on his ability to testify); Fraser v. State , 523 S.W.3d 320, 338-39 (Tex. App.—Amarillo June 9, 2017, appellant's pet. ref'd, State's pet. granted) (complaint about a number of instructions or comments to the jury, such as: "Ladies and gentlemen, there is going to be a whole series of witnesses to which this instruction is going to apply, and I will be reading that instruction to you for every one of them, so you can get used to it."); Tucker v. State , No. 05-16-00297-CR, 2017 WL 1282897 *3-4, 2017 Tex. App. LEXIS 3067 *7-9 (Tex. App.—Dallas April 6, 2017, no pet.) (not designated for publication) (complaint about trial judge's instruction to defendant to "remain quiet and act like you got some sense in this courtroom"); Knott v. State , 513 S.W.3d 779, 797-802 (Tex. App.—El Paso 2017, pet. ref'd) (complaint about trial court's explanations to venire about a defendant's right against self-incrimination, court of appeals held the case to be controlled by Unkart ); McDaniel v. State , No. 05-15-01086-CR, 2016 WL 7473902 *5-7, 2016 Tex. App. LEXIS 13841
Right? And you swear to tell the jury the truth. Right?"); Orosco v. State, No. 03-15-00383-CR, 2017 Tex. App. LEXIS 6111, *23-28 (Tex. App.-Austin June 29, 2017, pet. filed) (not designated for publication) (complaint about the fact that trial court expressed frustration with the defendant's repeated failures to answer the questions asked and to instead provide unrelated commentary, which the court described as a "diatribe" on two occasions, and the court repeatedly warned the defendant that additional failures to answer the questions asked or to behave in the manner required in judicial proceedings could result in the imposition of limitations on his ability to testify); Fraser v. State, 523 S.W.3d 320, 338-39 (Tex. App.-Amarillo June 9, 2017, appellant's pet. ref'd, State's pet. granted) (complaint about a number of instructions or comments to the jury, such as: "Ladies and gentlemen, there is going to be a whole series of witnesses to which this instruction is going to apply, and I will be reading that instruction to you for every one of them, so you can get used to it."); Tucker v. State, No. 05-16-00297-CR, 2017 Tex. App. LEXIS 3067, *7-9 (Tex. App.-Dallas April 6, 2017, no pet.) (not designated for publication) (complaint about trial judge's instruction to defendant to "remain quiet and act like you got some sense in this courtroom"); Knott v. State, 513 S.W.3d 779, 797-802 (Tex. App.-El Paso 2017, pet. ref'd) (complaint about trial court's explanations to venire about a defendant's right against self-incrimination, court of appeals held the case to be controlled by Unkart); McDaniel v. State, No. 05-15-01086-CR, 2016 Tex. App. LEXIS 13841, *6-33 (Tex. App.-Dallas December 29, 2016, pe
An incorrectly alleged predicate offense is fundamental error where, as here, it cannot be ascertained whether the jury voted to convict based upon the proper predicate offense of delivery of a controlled substance or the improper predicate offense of possession with intent to deliver. SeeFraser v. State , 523 S.W.3d 320, 342 (Tex. App.—Amarillo 2017), rev'd , 583 S.W.3d 564 (Tex. Crim. App. 2019) (finding that when a jury charge allows for conviction on a theory not supported by the law, the verdict cannot stand). Although the Court of Criminal Appeals has determined that the enumerated predicate offenses listed under section 71.02(a) are merely alternate manner and means of committing the offense of engaging in organized criminal activity and are not elements of the primary offense, O'Brien , 544 S.W.3d at 391, such a distinction is of little consequence where, as here, the jury charge allows for a conviction based upon facts which do not constitute an offense.