Opinion
Nos. 05-10-00394-CR, 05-10-00395-CR
Opinion Filed January 27, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F-0747593-S and F-0747618-S.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
Appellant Charles Ray Robertson pleaded guilty to aggravated kidnapping and burglary of a habitation. The trial court placed him on deferred adjudication for five years in each case. The State later moved to adjudicate guilt. Appellant pleaded true to the allegations. The trial court adjudicated guilt and revoked his community supervision in each case. He received eight years' confinement. In two issues, he argues the trial court deprived him of a fair and impartial forum for punishment, and it improperly delegated its judicial function. We affirm the trial court's judgment.
Deprivation of his Right to a Fair and Impartial Forum for Punishment
In his first issue, appellant argues the trial court deprived him of his right to a fair and impartial forum for punishment when it asked the prosecutor about his criminal history and relied on those statements when deciding punishment. The State responds error, if any, was waived because appellant failed to object during the punishment hearing. Alternatively, the trial court did not err because the prosecutor's statements consisted of evidence the trial court could properly consider during punishment. Appellant argues error is not waived because whether the trial judge was neutral and detached is an absolute requirement that cannot be waived by a failure to object. The State asserts appellant's argument is not whether the judge acted impartially but whether he erred in considering evidence of appellant's prior criminal history, which can be waived without a proper objection. A defendant's rights arise from distinct rules that generally fall into one of three categories: (1) absolute requirements and prohibitions; (2) rights which must be implemented by the system unless expressly waived; and (3) rights which are implemented only on request. State v. Ford, 158 S.W.3d 574, 580 (Tex. App.-San Antonio 2005, pet. dism'd). The third category includes rights arising from rules that are optional at the request of the defendant. Id. Texas Rule of Appellate Procedure 33.1 applies to these rights, and the trial judge must implement them only on request of a party; otherwise, they will be forfeited. Id. at 580-81. Ordinary objections to evidence and procedural benefits are included in this category. Id. The constitutional mandate of due process requires a neutral and detached judicial officer who will consider the full range of punishment and mitigating evidence. Buerger v. State, 60 S.W.3d 358, 363-64 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786-87) (1973). In the absence of a clear showing to the contrary, we presume the trial court was neutral and detached. Buerger, 60 S.W.3d at 364. Here, nothing in the record overcomes the presumption the trial judge was neutral and detached. Further, when the trial judge admitted it was a difficult case, he was unsure what to do, and then asked the prosecutor to "enlighten" him on details of appellant's criminal history, the trial judge was considering evidence. Thus, we agree with the State that appellant's actual complaint involves the trial court considering prior criminal history evidence and not whether he violated his duty to be neutral and detached. It has been consistently held that the failure to object in a timely and specific manner forfeits complaints about the admissibility of evidence. Saldano v. State, 70 S.W.3d 873, 899 (Tex. Crim. App. 2002) (en banc); Ford, 158 S.W.3d at 581 (noting objections to evidence must be made to the trial court or the complaint is waived). Because appellant failed to object to the questions, his argument is waived. We overrule his first issue.Improperly Delegating Judicial Function
In his second issue, appellant contends the trial court improperly delegated its judicial function to the prosecutor by asking her to "rate" appellant's charged offenses. The State again responds any error is waived because appellant failed to object during the punishment hearing. During the punishment hearing, the trial court stated the following:Ms. Kemp, you know more about-I know nothing about this. I know I got this-just so everyone's clear on that, I guess I could get all-get a whole bunch of information and hear from the Defense on this but, Ms. Kemp, as far as these charges of aggravated kidnapping and burglary of a habitation, on a scale of one to ten, compared with most cases like this, where does this rate, one being the least and ten being the most?The prosecutor then told the trial judge about her interview with the victim, the extent of the victim's injuries, and that she would rate the case an eight. Appellant failed to object during the lengthy exchange between the prosecutor and the trial judge. Under Texas Rule of Appellate Procedure 33.1, if a party wants to challenge the presented evidence, he must make a timely and specific objection to the trial court. Tex. R. App. P. 33.1; Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) ("[I]f on appeal a defendant claims the trial judge erred in admitting evidence offered by the State, this error must be preserved by a proper objection and a ruling on that objection."). Appellant failed to do this. Thus, his second issue is not properly preserved for review and is overruled.