Opinion
No. 07-19-00338-CR
11-09-2020
DAVID WAYNE KERR, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court Randall County, Texas
Trial Court No. 21,768-B, Honorable John B. Board, Presiding
CONCURRING OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
We judges are but human and, thus, influenced by our individual experiences, whims, and emotions. Nevertheless, judicial robes stand as a reminder of both the role we play in our adversarial system of justice and our need to overcome individual predilections when performing it. That role is one of impartiality; we are the neutral arbiter between advocates. Proenza v. State, 541 S.W.3d 786, 799 (Tex. Crim. App. 2017) (quoting Brown v. State, 122 S.W.3d 794, 797-98 (Tex. Crim. App. 2003)). And, because of that role, I find the need to further explain why the allegation of judicial vindictiveness need not be preserved for review.
No doubt, a number of intermediate appellate courts have required defendants to preserve claims of judicial vindictiveness. Those authorities appear in the State's appellate brief. See, e.g., Rhymes v. State, 536 S.W.3d 85, 98 (Tex. App.—Texarkana 2018, pet. ref'd); Crocker v. State, 441 S.W.3d 306, 312-13 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd); Harris v. State, 364 S.W.3d 328, 337 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd); Losoya v. State, No. 13-13-00141-CR, 2015 Tex. App. LEXIS 1364, at *6-7 (Tex. App.—Corpus Christi Feb. 12, 2015, no pet.) (mem. op., not designated for publication); Thomas v. State, No. 12-07-00048-CR, 2007 Tex. App. LEXIS 9343, at *6 (Tex. App.—Tyler Nov. 30, 2007, no pet.) (mem. op., not designated for publication); Rosborough v. State, No. 06-06-00237-CR, 2007 Tex. App. LEXIS 5544, at *4-5 (Tex. App.—Texarkana July 17, 2007, no pet.) (mem. op., not designated for publication). Their lineage has something in common, that being Rosborough v. State.
Rosborough was one of the first if not the first to require preservation of the complaint at issue. In arriving at that decision, the Rosborough panel relied on Neal v. State, 150 S.W.3d 169 (Tex. Crim. App. 2004). Yet, Neal involved a claim of prosecutorial vindictiveness, not judicial. And, in deciding to apply the Neal holding to an allegation of judicial vindictiveness, the Rosborough panel simply said "[w]e see no reason that an allegation of judicial vindictiveness should not also require the same preservation of error as does an allegation of prosecutorial vindictiveness." Rosborough v. State, 2007 Tex. App. LEXIS 5544, at *4.
There are reasons for treating prosecutorial and judicial vindictiveness differently for purposes of preservation. The foremost is that judges are not prosecutors. The latter urges a particular side under the adversarial system. Their bias, legitimate or otherwise, is a rather natural and expected part of that system. And, if their bias proves to overstep legal limitations, the judge stands ready as the impartial arbiter to correct the wrong, if brought to its attention. The same cannot as easily be said when the judge takes a side, shucks the mantle of impartiality thrust upon him, and acts from vindictiveness to the detriment of a party. No one with control over the proceeding is there to take corrective action.
So too do I question whether the jurist against whom the charge of vindictiveness is levied will be responsive if vindictiveness truly motivates his action. To expect the litigant to risk further enhancing the judge's ill-will by "calling him on it" borders on the futile if not absurd. Our Court of Criminal Appeals recently acknowledged that "when the trial judge's impartiality is the very thing that is brought into question, [the] typical justification for requiring contemporaneous objection loses some of its potency." Proenza v. State, 541 S.W.3d at 799. To paraphrase Proenza, a litigant remaining silent during an instance of judicial partiality may evince acquiescence to the partiality shown. It is equally fair to say, though, that silence "indicate[s] a litigant's calculation that, if the trial judge is indeed partial . . . , she will likewise display partiality in ruling upon the . . . objection itself." Id. "An objection under these circumstances would be futile at best . . . ." Id. At worst, it could invite or ignite additional ill-will.
"If a category of error by its very utterance tends to threaten the integrity of the criminal adjudicatory process itself, we may . . . deem it proper for appellate courts to at least consider the merits of these claims—even in the absence of a trial-level objection—and take corrective measures as appropriate." Id. at 798. Within those matters which threaten the integrity of the criminal adjudicatory process itself lies the presence of an unbiased judge acting not from legal precept but from personal animus. The presence of an unbiased judge, that is, one who acts upon the law and facts, as opposed to ill-will, is elemental to a sound and lasting system of justice. Indeed, the jurist has an independent duty to implement and assure the existence of that component without the need for a litigant to request it. When such an independent duty lies upon the judge, the litigant is not obligated to first complain to preserve for review the right or expectation lost. See Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993) (stating that a litigant need not request the implementation of that which "the judge has an independent duty to implement" and as "a consequence, failure of the judge to implement them at trial is an error which might be urged on appeal whether or not it was first urged in the trial court").
None of the authorities cited by the State address the undeniable difference between the role of a prosecutor and that of a judge in our system of justice. None consider the impact a biased judge has upon the judicial system itself. None consider the systemic need for the jurist to act upon the law and facts, as opposed to ill-will or animus. Because they do not, I find deficient their holdings which obligate a litigant to preserve for review complaints about judicial ill-will, animus, or vindictiveness.
This is not to say, though, that I necessarily agree that reversal for a new punishment hearing is warranted in situations like that at bar. A "presumption" of vindictiveness forms the basis upon which the majority acts. The presumption arose from the trial judge 1) ordering that previously concurrent sentences be served consecutively after the defendant successfully appealed an earlier conviction and 2) offering no explanation for doing so. It is reasonable to conclude that the trial judge knew why it ruled as it did. It is also reasonable to afford the trial court opportunity to explain its decision. Such an opportunity to explain should be afforded defense counsel when accused of ineffective assistance, Neal v. State, 150 S.W.3d at 178-79 (quoting Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)), and prosecutors when charged with prosecutorial vindictiveness. Id. at 179. Jurists should be treated no differently in that respect. They should be afforded the same courtesy granted defense counsel and prosecutor given the rather heinous nature of an accusation sounding in judicial vindictiveness. Consequently, I would choose the path of abating the appeal and remanding the cause to the trial court with directions to enter findings (based on the evidence before it) which explain its decision. But, that is problematic here since the judge who sentenced appellant retired. I am at a loss when attempting to contrive a way to direct one no longer a judge to undertake a judicial duty. This happenstance coupled with the "messy and convoluted procedural and appellate history" alluded to in the majority's opening paragraph leads me to join in its result.
Brian Quinn
Chief Justice Do not publish.