YEAR 2005 CASE SUMMARIES

By
The Honorable Pat Garza
Associate Judge
386th District Court
San Antonio, Texas

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Questioning of respondent by trial court during disposition hearing was not reversible error. [In the Matter of K.P.S.](05-2-35)

On April 28, 2005, the Fort Worth Court of Appeals held that a trial court's questioning of appellant during disposition hearing did not constitute fundamental error, and appellant had to object in order to preserve error for appeal.

05-2-35. In the Matter of K.P.S., MEMORANDUM OPINION, No. 2-04-228-CV, 2005 Tex.App.Lexis 3285, (Tex.App.– Fort Worth 4/28/05).

Background: Appellant was charged with one count of arson and one count of forgery. See TEX. PENAL CODE ANN. § 28.02 (Vernon 2003), § 32.21 (Vernon Supp. 2004-05). Appellant waived his right to a jury trial and stipulated to the forgery count. After an adjudication and disposition hearing, the trial court adjudicated appellant delinquent on both counts and ordered that appellant be committed to the Texas Youth Commission for an indeterminate period not to exceed his twenty-first birthday.

Facts: In his first four issues, appellant complains that the trial court violated his right to due process and his Fifth Amendment right not to testify against himself by soliciting and considering information relating to an infraction that appellant had allegedly committed while he was in detention. During appellant's disposition hearing, appellant's counsel contended during his closing argument that appellant has been on "Level One" and has not committed any infractions while he has been in detention. The following exchange then occurred between the trial court and appellant:

Appellant's counsel completed his closing argument, and then the following occurred:

Appellant did not object during either exchange.

Held: Affirmed

Memorandum Opinion: To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070, 143 L. Ed. 2d 550 (1999). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. TEX. R. APP. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Mendez, 138 S.W.3d at 342.

Appellant argues that the trial court committed fundamental error when it improperly solicited and considered information relating to the alleged infraction. As support for his argument, appellant relies primarily on Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000). In Blue, the trial judge apologized to a group of prospective jurors during the jury selection process, telling them that he would have preferred that the defendant plead guilty rather than go to trial. Id. at 130. The court of criminal appeals held that the comments "tainted appellant's presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection." Id. at 132.

The present case differs significantly from Blue. The trial court's actions did not taint appellant's presumption of innocence. At the time the trial court questioned appellant, it had already adjudicated appellant delinquent. Further, while the trial court in Blue directed its comments at prospective jurors, appellant waived his right to a jury trial, and therefore there were no jurors to be affected by the trial court's conduct. Thus, unlike Blue, the trial court's conduct did not taint the presumption of appellant's innocence or vitiate the jury's impartiality. Finally, we agree with Justice Keasler, who wrote that Blue was "highly unique and litigants should not view [its] holding as an invitation to appeal without making proper timely objections. " Id. at 139 (Keasler, J., concurring).

Conclusion: The trial court's actions did not constitute fundamental error, and appellant had to object in order to preserve error for appeal. The court overruled appellant's first four issues. The court also held that the evidence was factually sufficient to support the finding that appellant committed arson [opinion omitted].

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