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Proenza v. State

Court of Criminal Appeals of Texas

November 15, 2017

ABRAHAM JACOB PROENZA, Appellant
v.
THE STATE OF TEXAS

         ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS CAMERON COUNTY

          Keasler, J., delivered the opinion of the Court, in which Hervey, Alcala, Richardson, Newell, and Walker, JJ., joined.

          OPINION

          KEASLER, J.

         Abraham Proenza did not object when his trial judge began asking pointed, substantive questions of a witness bearing crucial defensive testimony. Is Proenza now barred from complaining of this error for the first time on appeal? Because the trial judge had an independent duty to refrain from conveying to the jury her opinion of the case, we hold that Proenza was under no obligation to object mid-trial. We affirm in part and will remand.

         I. FACTS AND PROCEDURAL POSTURE

         On the evening of August 11, 2008, Abraham Proenza walked into the bedroom of four-month-old baby boy AJV and noticed that he was blue and purple in color, apparently struggling to breathe. Although Proenza administered emergency medical care to AJV and promptly contacted 911, AJV died later that night. Proenza, who was neither AJV's biological nor adoptive father, admitted to police that he had noticed AJV vomiting several times in the weeks, days, and even hours leading up to his death. An autopsy revealed that AJV was severely malnourished and dehydrated at the time of his death.

         A grand jury ultimately indicted Proenza for Injury to a Child, alleging that he intentionally and knowingly caused serious bodily injury to AJV by, among other things, failing to seek prompt medical care for AJV. Proenza would maintain at trial that he lacked the requisite intent to harm AJV because of his genuine, though perhaps mistaken, belief that he could not obtain medical care for AJV without some documentary proof that he was AJV's legal guardian. This belief was apparently based on a previous occurrence in which Proenza's father-in-law brought a granddaughter to a medical clinic but was turned away due to the father-in-law's inability to produce this very kind of documentation. The clinic at which this incident occurred, Su Clinica, happened also to be the location of one of AJV's pediatricians, Dr. Carol Grannum.

         A. At Trial

         The State called Dr. Grannum to testify to her prior treatment of AJV, as well as Su Clinica's supposed requirement that a child be accompanied by a documented legal guardian in order to receive care. At one point, Dr. Grannum responded to a hypothetical situation posited by the defense wherein "somebody . . . tries to take the child [to Su Clinica for medical care] that's not the parent and has no documentation as a guardian, " by stating that in those circumstances, medical staff at the clinic "can't see the patient." She later clarified, however, that if a patient were in "acute distress, " the patient would be stabilized on-site and someone from the clinic would call for EMS to take him or her to an emergency room.

         After both parties had completed their questioning of Dr. Grannum and asked that she be excused, the trial judge interjected by directly asking Dr. Grannum for further details regarding the day-to-day enforcement of Su Clinica's policy. Proenza did not object to this initial exchange between the trial judge and Dr. Grannum, instead opting to "clarify" the testimony brought out by the judge by further examining the witness. But this only prompted the judge to interject yet again, this time expressing skepticism that Su Clinica's policy was enforced as stringently as defense counsel's follow-up questions suggested. In the course of this judicial witness examination, the trial judge informed Dr. Grannum, in the presence of the jury, that her own doctor allowed the judge's children to be accompanied by relatives without any sort of authorizing note.[1]

         As to the entirety of this exchange between the trial judge and Dr. Grannum, the State concedes, and we agree, that "[t]he court's tone is fairly characterized as disapproval of the wisdom of such a practice and/or doubt that the policy is enforced as strictly as suggested by [Dr.] Grannum."[2] Although the exchange was rather lengthy, Proenza did not lodge an objection before the trial judge that he considered her comments to be prejudicial. At the conclusion of the case, the jury found Proenza guilty and assessed his sentence at forty years' imprisonment.

         B. On Appeal

         Proenza complained before the Thirteenth Court of Appeals that "[t]he trial judge improperly commented on the weight of the evidence" when she engaged with Dr. Grannum. Observing that "[b]y statute, the trial court may not comment on the weight of the evidence or convey an opinion of the case in the jury's presence at any stage of trial, " Proenza cited to Texas Code of Criminal Procedure Article 38.05 and this Court's plurality opinion in Blue v. State as the dual bases for his relief.[3] Proenza did not brief or otherwise address the preservation-of-error issue.

         Nevertheless, the court of appeals characterized Proenza's argument as a claim "that fundamental error occurred" when the trial judge examined Dr. Grannum "such that . . . [Proenza] could complain . . . for the first time on appeal."[4] After considering our recent decision in Unkart v. State[5] and one of the concurring opinions in Blue, the court of appeals "concluded that a defendant may complain for the first time on appeal about a trial court's lack of impartiality" under the rubric of fundamental error "so long as the trial judge's conduct is so egregious as to deem the judge biased on the matter[.]"[6] Looking to the substance of what the trial judge said in Proenza's case, the court held that fundamental error of this kind had indeed occurred, thereby rendering a trial-level objection to the comments unnecessary to preserve complaint on appeal.[7] The court went on to review Proenza's claim for constitutional harm, found that it could not say "beyond a reasonable doubt that the trial court's error did not contribute to Proenza's conviction, " and reversed.[8]

         C. Petition for Discretionary Review

         The State raises three grounds in its petition for discretionary review:

1. Is there a common-law "fundamental error" exception to preservation that exists outside of the framework of Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)?
2. Is a complaint about a judge's comment on the evidence forfeited if not raised at trial?
3. The trial judge's exchange with a witness neither tainted the defendant's presumption of innocence nor vitiated the jury's impartiality, and it was harmless under any standard.[9]

         After a brief discussion of the law applicable to improper judicial commentary and procedural default, we will address each of the State's grounds for review in turn.

         II. THE LAW

         A. Judicial Comments

         Article 38.05 of the Texas Code of Criminal Procedure prohibits the trial judge from commenting on the weight of the evidence in criminal proceedings or otherwise divulging to the jury her opinion of the case:

In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.[10]

         Although Article 38.05 has been a fixture in our statutes for many years, this Court has had relatively few occasions, especially in the modern era, to discuss its meaning or application.[11] To the extent that we have, we have fairly consistently stated that "[t]o constitute reversible error [under] Article 38.05 . . . the comment must be such that it is reasonably calculated to benefit the State or prejudice the defendant's rights."[12] If raised as a freestanding statutory complaint, error under Article 38.05 is subject to non-constitutional harm analysis.[13]

         Of course, neither determining whether a particular comment violates Article 38.05 nor assessing the severity of harm, if any, flowing from an improper comment answers the question whether an appellate claim concerning the comment was properly preserved in the first place. Indeed, we have previously stressed the importance of keeping questions of preservation and harm distinct from one another.[14] Understanding how our procedural-default jurisprudence applies to Article 38.05 claims thus requires us to look to our "watershed decision in the law of error-preservation, "[15] Marin v. State.[16]

         B. Procedural Default in this Context: Marin, Blue, and Unkart

         In Marin, we described the Texas criminal adjudicatory system as containing error- preservation "rules of three distinct kinds: (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request."[17] We have since referred to these separate classifications as category-one, -two, and -three Marin rights, respectively. We explained that procedural default-that is, "the loss of a claim or right for failure to insist upon it by objection"-"only applies to the last category, " since these rights are typically considered to be "optional with the litigants."[18] On the other hand, category-two rights, because they are "so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection, " are only abandoned on appeal when the record reflects that they have been "plainly, freely, and intelligently" waived at trial.[19] And category-one rights, being "systemic" and therefore "essentially independent of the litigants' wishes" can neither be forfeited nor even validly waived by the parties for appellate-review purposes.[20] Utilizing this categorical framework has been immensely helpful in clarifying our procedural-default caselaw, since "[d]etermining which category a right occupies will usually settle the question of procedural default in the context of a particular case."[21]

         However, deciding the procedural-default status of claims of improper judicial comments has presented a unique challenge for this Court. In Blue v. State, for example, the trial judge made a number of inappropriate comments to a venire of potential jurors, including that he "prefer[red] the defendant to plead [guilty]" rather than assert his right to a jury trial.[22] Although the appellant "did not object to any" of the trial judge's statements in that case, he "asserted that when a trial judge makes a fundamentally erroneous statement, no objection is required" to present such a claim on appeal.[23] Albeit for varying reasons, a fractured majority of this Court agreed.[24]

         A four-judge plurality cited to then-Rule 103(d) of the Texas Rules of Evidence in support of the proposition that "we are authorized to 'tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court.'"[25]Finding that "[t]he comments of the trial judge . . . tainted appellant's presumption of innocence in front of the venire, " the plurality determined that "fundamental error of constitutional dimension" had occurred, such that "appellant's failure to object . . . did not waive error."[26] A concurring opinion would have based the analysis more upon Marin's procedural-default framework in arriving at this conclusion, as opposed to the plurality's apparent reliance upon the Rules of Evidence.[27] The concurrence found that the improper comments were evidence that the defendant's right to an impartial judge-which the concurrence believed to be a category-one Marin absolute requirement-was violated.[28]Accordingly, although both the plurality and concurrence would have found that the improper-judicial-comments claim in Blue was not forfeited by the appellant's failure to object, they were unable to agree upon a justification for that common ground.

         We later acknowledged this lack of agreement in Unkart v. State.[29] In Unkart, the trial judge made a number of comments in voir dire regarding the defendant's right not to testify that the defendant perceived as inappropriate.[30] The defendant did not contemporaneously object, but complained on appeal that the judge's voir dire "improperly commented on his right not to testify."[31] We observed that "[o]rdinarily, a complaint regarding an improper judicial comment must be preserved at trial, " but noted that in Blue, "we granted relief on an improper-judicial-comment complaint that was not preserved at trial."[32] We declined to treat Blue as precedential on the issue of procedural default solely because the "rationales of the plurality and concurring opinions" in Blue were "entirely disparate."[33] But the Blue opinions were neither expressly overruled nor even cast into doubt-they could still "be considered for any persuasive value they might have."[34] And indeed, we ultimately resolved Unkart via the merits determination that "the circumstances [in Unkart] differ[ed] significantly . . . from the circumstances in Blue."[35]

         Our silence in Unkart on the issue of "fundamental error" may have been why the court of appeals in this case said that Unkart "left the door open for a judicial comment that can rise to the level of fundamental error."[36] But even before Unkart, this Court had already rejected the idea that "fundamental error, " as a freestanding doctrine of error-preservation, exists independently from Marin's categorized approach.

         III. ANALYSIS

         A. There is no common-law "fundamental error" exception to the rules of error preservation established by Marin.

         In Saldano v. State, we noted that before Marin "this Court . . . recognized more than a dozen . . . kinds of fundamental error."[37] We agreed with Professors Dix and Dawson that our pre-Marin error-preservation jurisprudence was regrettably little more than a series of "piecemeal developments, " each with "somewhat different rationales."[38] As a consequence, questions of procedural default could not "be explained by any . . . unifying principle or principles."[39] This is why, in Saldano, we lauded Marin as "a watershed decision in the law of error-preservation"-because Marin "suggest[ed] . . . a framework" for a set of unifying procedural-default principles that was sorely needed.[40] In Mendez v. State, we later reiterated Marin's subsumption of any "fundamental error" doctrine when we said that "[q]uestions of 'fundamental error' now are considered in its framework."[41]

         Although this precedent would seem to decide the issue before us, we note that the doctrine of "fundamental error" may be understood in one of two ways. The first formulation of the doctrine may be stated thusly: Some claims, by their very utterance and irrespective of the level of harm resulting therefrom, are of such a "fundamental" nature that they are worth reaching on appeal whether they were preserved at trial or not. But to say that an error is "fundamental" in this sense is functionally the same as saying that it is a Marin category-one or -two claim. It was in this sense that, in Mendez, we said that "[q]uestions of 'fundamental error' now are considered in [Marin's] framework."[42] And as to this formulation of the doctrine, we see no practical or legal basis for contradicting what we said in Saldano and Mendez; our reasoning regarding "fundamental error" in those cases remains as true today as it was when they were decided.

         The second formulation, and the one apparently (if not explicitly) adopted by the court of appeals in this case, may be stated this way: Some claims are such that, while normally requiring a trial-level objection to preserve error, they are nevertheless reviewable without an objection when the harm resulting from the error is sufficiently "fundamentally" egregious. This formulation is aptly described as a "harm-based" theory of error preservation. Both the court of appeals, in its opinion, [43] and Proenza, in his brief on the merits before us, [44] cite to our opinion in Jasper v. State[45] in support of such a theory.

         In Jasper, the appellant claimed that "his right to a fair trial by an impartial jury was violated by comments of the trial judge" when the judge "correct[ed] a misstatement . . . of previously admitted testimony" and expressed "irritation at the defense attorney" in so doing.[46] Although the appellant did not object at trial, we claimed that "it is the province of this Court to 'take notice of fundamental errors affecting substantial rights although they were not presented to the court.'"[47] We cited what was, at that time, codified as Texas Rule of Evidence 103(d) in support of this claim, which read: "Nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court."[48] This rule has since been re-codified as Texas Rule of Evidence 103(e), and now reads slightly differently: "In criminal cases, a court may take notice of a fundamental error affecting a substantial right, even if the claim of error was not properly preserved."[49] Proenza, too, points to this rule as proof of the existence of a freestanding doctrine of "fundamental error."[50]

         But reading Rule of Evidence 103(e)-and, by extension, Jasper-so as to divine a freestanding, harm-based doctrine of error preservation is contrary to the language and drafting history of the rule, as well as our own post-Marin caselaw. Rule 103(e) is a "Rule of Evidence" by its very style. It is located in a subheading that is titled "Rulings on Evidence."[51] It is therefore inaccurate to cast Rule 103(e) as an exception to the rules of procedural default in situations where-as in this case, Blue, and Jasper-the perceived error did not arise from the trial judge "ruling to admit or exclude evidence."[52]

         Even were we inclined to confine the Rule 103(e) "fundamental error" exception to evidentiary situations, we note that as originally drafted in 1986, "[Rule 103(d)] was intended to be purely declarative of prior law."[53] Rule 103(d), then, was meant only as an acknowledgment that certain patchwork rights had been accorded a "fundamental" status in our pre-Marin procedural-default body of law.[54] As previously stated, Marin subsumed this body of law and provided a framework under which it was to be applied going forward. Rather than existing in conflict with one another, Rule 103(e), Jasper, and Marin all stand for the same uncontroversial proposition: "Some rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system."[55] The "fundamental error[s]" described in Rule 103(e) and Jasper are simply category-one and -two Marin errors.

         That Marin leaves no room for a harm-based doctrine of error-preservation is further bolstered by our subsequent caselaw on this subject. We have characterized Marin as holding "that the general preservation requirement's application turns on the nature of the right allegedly infringed, "[56] as opposed to "the circumstances under which it was raised."[57]That is, a proper determination of a claim's availability on appeal should not involve peering behind the procedural-default curtain to look at the particular "circumstances" of the claim within the case at hand. This is because "[d]etermining a threshold issue of procedure based on the claim's merits results in an analytical hiccup[.]"[58] So we have said that even errors that may be cured only by mistrial[59] and rights whose timely assertion lead only to dismissal[60]may still be forfeited by failure to raise or urge them at trial. To adopt a model of error preservation that incorporates a "harmfulness of error" standard would fly in the face of these settled jurisprudential standards-and would, in addition, risk subverting the gate-keeping intent underlying Marin.

         Proenza cautions that doing away with the doctrine of "fundamental error" is tantamount to a ruling that "no defendant in a situation such as the present case" would "ever be able to obtain relief without preserving error[, ] no matter how egregious the error is."[61]He is mistaken. In the first place, we have previously said that even "incurable" errors may sometimes be forfeited by the defendant's failure to object at trial.[62] Secondly, we do not repudiate the word "fundamental" as a descriptor of rights or errors in appellate claims; what we reject is the use of this term whenever it is used to connote a harm-based doctrine of error preservation. Once again, the question of error preservation turns not upon the "circumstances under which [an error] was raised, " but upon the "nature" of the error itself.[63]We agree with the State that "[f]or the purpose of preservation . . . it should not matter that some comments are worse than others; that is purely a function of harm."[64]

         Finally, and most importantly, our rejection of a freestanding doctrine of "fundamental error" does not mean that Marin's classes of non-forfeitable claims-categories one and two-have somehow disappeared. To the contrary, our ruling today simply changes the operative question in determining whether a claim of improper judicial commentary is subject to procedural default. Instead of the operative question being whether, in a particular case, a trial judge's comments rise to the level of "fundamental error, " the operative question is now whether, in the Texas adversarial system as a whole, claims of error under Article 38.05 fall within Marin's third class of forfeitable events.

         B. Under Marin's framework, a trial judge's improper comment on the evidence is not forfeited by mere inaction at trial.

         Marin places particular emphasis on the various respective "dut[ies]" faced by trial judges and litigants in our adversarial adjudicatory system.[65] "The trial judge has no duty to exclude, " for instance, hearsay evidence absent a partisan objection "and would probably fall into error if he did."[66] Neither does the trial judge have an "independent duty . . . to shuffle the [venire] panel or to excuse [a] veniremember" subjected to peremptory challenge.[67]Indeed, "[t]he trial judge as institutional representative has no duty to enforce" any forfeitable right "unless requested to do so."[68] In this sense, the responsibility of asserting forfeitable rights belongs to the litigants, and not the trial judge. This is why such rights will be unavailable on appeal if not urged at trial. A court of appeals should not find error in a trial judge's inaction when contemporaneous action is neither requested nor independently required of her.

         By the same token, however, a litigant "need make no request at trial for the implementation of" waiver-only rights precisely because "the [trial] judge has an independent duty to implement them absent an effective waiver."[69] When it comes to non-forfeitable rights, the legal responsibility of assuring compliance with these rights falls squarely upon the trial judge. And when these kinds of rights are at stake, a court of appeals may rightly find error in a trial judge's conduct, even when the parties do not complain at trial, because the law imposes upon the judge a duty that exists independently of the parties' decision to speak up. As we would later unanimously say in Mendez v. State: "A law that puts a duty on the trial court to act sua sponte, creates a right that is waivable only. It cannot be a law that is forfeitable by a party's inaction. This was the precise holding of Marin."[70] In accordance with Mendez, the question of whether Article 38.05 is a category-three forfeitable right under Marin turns upon whether the trial judge has an independent duty to ensure compliance with Article 38.05, or whether compliance need be given only upon partisan request.[71]

         We note initially that the statute itself is written in mandatory terms: "the judge shall not discuss or comment upon the weight of the [evidence] . . . nor shall he . . . make any remark calculated to convey to the jury his opinion of the case."[72] While we have previously said that a statute being "couched in mandatory terms . . . does not necessarily mean that the statute identifies an absolute prohibition or a waiver-only right, "[73] we note that the statute in this case is both (1) couched in mandatory terms and (2) directed at the trial judge herself. There is no ambiguity within the statute as to who bears the ultimate responsibility of compliance with this law-the language of the statute speaks for itself in placing this responsibility squarely upon the judge.[74] The statute speaks neither of "a party's request"[75]nor the "motion of the defendant, "[76] but simply commands that the judge comply. It would seem, then, that Article 38.05 by its very text creates "a duty on the trial court to act sua sponte"[77]-or rather, a duty to refrain sua sponte from a certain kind of action. To this extent, we agree that this "cannot be a law that is forfeitable by . . . party[] inaction."[78]

         To be sure, there is real utility in requiring a timely objection upon perceived error, including that the respective parties are not "burdened by appeal and retrial."[79] But Marin took special pains to describe procedural default rules that made sense "[i]n the context of the whole system."[80] Thus, the utility associated with enforcement of forfeiture rules never outweighs "fundamental systemic requirements or . . . rights so important that their implementation is mandatory absent an express waiver."[81] If a category of error by its very utterance tends to threaten the integrity of the criminal adjudicatory process itself, we may, consistent with Marin, 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.[82]

         In this exact fashion, we believe that compliance with Article 38.05 is "fundamental to the proper functioning of our adjudicatory system, " such that it should "enjoy special protection" on par with other non-forfeitable rights.[83] Marin's description of the adversarial system depends upon, or at the very least assumes, the decision-maker's impartiality. When a trial judge has no interest in the outcome, it is fair to assume that those rights the litigants want enforced, they will ask to be enforced. It behooves the litigants to urge their rights at trial precisely because they can trust the trial judge to fairly consider the claims and reach a ruling that is based in law. And when they do not so desire to urge their rights, it is sensible to assume that their "failure to speak up is quite enough."[84]

         But when the trial judge's impartiality is the very thing that is brought into question, Marin's typical justification for requiring contemporaneous objection loses some of its potency. When a litigant perceives a violation of Article 38.05, it is not a foregone conclusion that his silence indicates a relinquishment of his rights thereunder. Silence may just as fairly indicate a litigant's calculation that, if the trial judge is indeed partial to the opposing side in her evidentiary commentary, she will likewise display partiality in ruling upon the Article 38.05 objection itself. An objection under these circumstances would be futile at best, and at worst could reinforce to the jury that the trial judge stands solidly in the corner of the opponent. Article 38.05 violations therefore disrupt the delicate incentive structure that, under Marin's framework, is "so fundamental" to the proper functioning of our system.

         This is to say nothing of the important role that Article 38.05 plays in protecting the perception of the trial judge's impartiality in front of the jury. We have previously stated that Articles 36.14[85] and 38.05 reflect a "devotion" within the Texas adversarial system to the proposition that "the judge is a neutral arbiter between the advocates."[86] When a litigant contends that the trial judge has shirked her duty by openly "convey[ing] to the jury [her] opinion of the case, "[87] the litigant has necessarily alleged that an alarming perversion of this role has taken place. And because we have said that "[j]urors are prone to seize with alacrity upon any conduct or language of the trial judge, " we believe such an allegation to be sufficiently weighty as to merit appellate review even in the absence of a partisan objection at trial.[88] As we said in Grado v. State, "[a] contrary conclusion has the potential of shaking the public's perception of the fairness of our judicial system and breeding suspicion of the fairness and accuracy of judicial proceedings. The nature of this right is too significant to the judicial system to conclude that it is extinguished by mere inaction."[89]

         Of course, we do not hold today that every unscripted judicial comment in fact disrupts the proper functioning of the judicial system or weakens the public's faith in our trial judges.[90] This is because, as the dissent rightly points out, "[m]ost trial judges are hardworking and well-meaning[.]"[91] But we also believe that allegations of impropriety under Article 38.05 tend, as a whole, to implicate these concerns whether each individual claim has merit or not. Thus, if a judicial comment is found to be errorless or insignificant in the context of a particular trial, that is a good reason to conclude that any resulting claim of error should be denied on its merits or else declared harmless-it is not a good reason to say that the claim was never preserved in the first place. We do not, then, suggest that every claim brought under Article 38.05 is meritorious or even likely to be so; we speak only on the issue of preservation.

         Nevertheless, the dissent fears that, by our holding today, "the Court . . . fashions a regime that will entangle the appellate courts in micromanaging the conduct of jury trials."[92]It concludes that "equity and policy favor giving trial judges the opportunity to address and cure complaints about judicial comments, "[93] and observes by way of comparison that "allowing judicial comments on the evidence is a common-law tradition in federal court[.]"[94]But federal law has no statute explicitly prohibiting judicial commentary on the weight of evidence in front of the jury. Texas does.[95] We are bound by the will of the Legislature as expressed in its enactments-even when those enactments break from vaunted "common-law tradition[s]"[96] or the practices of other jurisdictions. And this deference to the Legislature ultimately cuts both ways. Should the Legislature agree that we have ranked Article 38.05 too highly in the pantheon of Texas trial rights, or that the rule announced today places too heavy a burden on the dockets of our appellate courts, it is certainly within the Legislature's authority to provide tailored guidelines about whether, when, and to what extent a litigant must object to preserve an appellate complaint under Article 38.05. Until then, Mendez provides the clearest answer to the question before us today: "A law that puts a duty on the trial court to act sua sponte, creates a right that is waivable only."[97]

         In light of the above, we hold today that claims of improper judicial comments raised under Article 38.05 are not within Marin's third class of forfeitable rights. Rather, we believe that the right to be tried in a proceeding devoid of improper judicial commentary is at least a category-two, waiver-only right.[98] Because the record does not reflect that Proenza plainly, freely, and intelligently waived his right to his trial judge's compliance with Article 38.05, his statutory claim in this matter is not forfeited and may be urged for the first time on appeal. In this regard, the ruling of the court of appeals is affirmed.

         C. Was Proenza harmed?

         We have previously said that "when only a statutory violation is claimed, the error must be treated as non-constitutional for the purpose of conducting a harm analysis."[99] Texas Rule of Appellate Procedure 44.2(b), the non-constitutional standard for reversible error in criminal cases, requires that "[a]ny other [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."[100] In apparent recognition of this principle, Proenza, in his brief before the court of appeals, not only cited Article 38.05 in support of his claim but also called for non-constitutional harm review: "Having shown violations of Texas Code of Criminal Procedure 38.05, Appellant must now show a substantial right was affected as a result[.]"[101]

         However, as the State rightly points out, both the majority and dissenting opinions below applied the standard of harm that is associated with constitutional error, despite Proenza's assertion of a bare statutory claim. Texas Rule of Appellate Procedure 44.2(a) states that "[i]f the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment."[102] The majority expressly applied, and cited to, this constitutional-error harm standard when it could not "say beyond a reasonable doubt that the trial court's error did not contribute to Proenza's conviction."[103]

         In this, the court of appeals erred. Because Proenza claimed only statutory error and called for non-constitutional harm analysis, the court of appeals should have applied the harm analysis contained in Texas Rule of Appellate Procedure 44.2(b). This is not to say that the court of appeals's ultimate determination that Proenza was harmed was incorrect per se; but the court should have examined this issue under the correct standard. Rather than undertake this examination for the first time on discretionary review, we think it more appropriate for the court below to revisit its harm analysis, this time applying the proper standard under Rule 44.2(b).[104]

         IV. CONCLUSION

         Marin described the trial judge as an "institutional referee;"[105] she is not, to continue the metaphor, just another player on the field. Knowing this, litigants in our system do not-and should not-expect the judge to stand in open opposition to their desired verdicts, as they should with their opponents. And the trial judge, for her part, should not need the litigants to remind her that hers is not the task "of producing the evidence [and] arguing its significance[.]"[106] She should know without being prompted that any divulgence to the jury of her opinion in the case would, if nothing else, make her seem "involved in the fray."[107]Our system's basic structure, then, simply does not contemplate that litigants should bear the duty to request Article 38.05 compliance before it will be given. As in Marin, we think it would be "dysfunctional" to interpret Article 38.05 so as "to foreclose review of [this] trial defect[] for which the litigants are not legally responsible."[108]

         Although Proenza did not contemporaneously object to the trial judge's improper questioning of a witness, he was nevertheless entitled to appellate review of his claim that, in so doing, the judge violated Texas Code of Criminal Procedure Article 38.05. This is not because the trial judge's comments rose to the level of "fundamental error, " but rather because claims brought under Article 38.05 are not, in Marin's framework, subject to forfeiture by inaction. We remand this case to the court of appeals to apply the proper harm analysis on the merits of Proenza's claim.

          Newell, J., filed a concurring opinion in which Hervey and Alcala, JJ., joined.

         "Your honor, with all due respect, if you're going to try my case for me, I wish you wouldn't lose it."

         - Frank Galvin, The Verdict.[1]

         I agree with the Court's conclusion that a judge has an independent duty to refrain from conveying to the jury his or her opinion of the case. I agree with the Court's conclusion that compliance with Article 38.05 is fundamental to the proper functioning of our adjudicatory system. And, I agree with the Court's holding that Appellant was not required to object to the trial court's comments in this case in order to preserve the right to complain about those comments on appeal, regardless of the degree to which they impacted the case. Indeed, there is much that I agree with in the Court's opinion.

         However, I write separately because I believe this case illustrates why we should be wary about fetishizing our "watershed decision" in Marin v. State.[2] First, it must be remembered that Marin's examination of the system of adjudication at work in Texas was only a "cursory" one.[3]We made no claims that we had exhaustively examined every evidentiary or procedural rule and every statutory and constitutional right applicable to a criminal proceeding. So while the observations in Marin regarding different categories of rights are illuminating, they did not provide a full diagnosis. It was simply triage.

         Given Marin's admittedly cursory examination, it comes as no surprise that not all "rights" fit neatly into one of Marin's three categories. This case is a prime example. Here, we could simply say that the statute at issue imposes a mandatory, statutory duty on a trial judge and therefore the statutory right fits in Marin's second category. But, the Court goes further to note that the right to an impartial judge is so fundamental to our adjudicatory system that no objection is necessary. This suggests that a violation of Article 38.05 (assuming that a trial judge's statement actually qualifies as a "comment") falls within Marin's first category-a right that cannot be waived. Yet, we hold that it's not necessary to determine if Article 38.05 creates a "right" that cannot be waived at all so long as we determine that it at least fits in category two and must be affirmatively waived.

         And, of course, not every trial judge's comment that runs afoul of Article 38.05 can be said to completely wreck the proper functioning of the adjudicatory system. What if the comment does not affect a litigant's substantial rights? In those situations, it seems to make practical sense to categorize the "right" enshrined in Article 38.05 as a category-three Marin right. After all, if the comment does not affect the proper functioning of the adjudicatory system, then the stated rationale for removing a contemporaneous objection requirement fades.[4]

         So, is Marin doing anything at all? In this case is it the Marin category that determines the need for error preservation, or a call to the proper functioning of the adjudicatory system? For all the talk of doing away with the concept of "fundamental error, " holding that the violation in this case doesn't require an objection because "an impartial judge is fundamental to our adjudicatory system" sure sounds like a determination of fundamental error. It seems to me that Marin is good at explaining how to treat violations of particular rights if we already know how those rights should be categorized. It is not as helpful with categorizing the rights in the first place or otherwise explaining why one system of valuation is more valid than another.

         All that said, I join the Court's opinion because it gets the most important thing correct. The inquiry should always start with a determination of the nature of the right at issue rather than concerns about how efficiency favors a contemporaneous objection requirement. Pointing to the administrative burden created by the rejection of a contemporaneous objection requirement prioritizes efficiency concerns over the rights of the litigants. Moreover, it encourages defining the rights at issue down so that efficiency arguments appear more weighty. To be sure, this decision will lead to more claims that something the trial court said amounts to a "comment" or more opinions deciding whether a particular statement violated a litigant's substantial rights. But the flip side of the argument is more damning. It risks letting a conviction before an admittedly partial tribunal stand simply for want of an objection to a demonstrably biased judge.

         For these reasons, I concur and join the Court's opinion.

          Keller, P.J., filed a dissenting opinion in which Yeary and Keel, JJ., joined.

         Traditionally, the rule was that a party had to object at trial in order to preserve a complaint about an improper judicial comment.[1] Then, in a plurality opinion in Blue, [2] this Court said that some judicial comments-if they were bad enough-could constitute reversible error even if they were raised for the first time on appeal.[3] Then, in Unkart, [4] we held that Blue had no precedential value, [5]which has resulted in a steady decline in the number of opinions citing to Blue. Now, however, the Court greatly expands the effect of the non-majority, non-precedential holding in Blue by exempting all judicial comments in front of a jury from the contemporaneous-objection rule. In doing so, the Court overturns decades of caselaw, gives inventive appellate attorneys the ability to blindside trial judges, and fashions a regime that will entangle the appellate courts in micromanaging the conduct of jury trials. After this opinion, every statement made by a trial judge in front of a jury is subject to being examined under an appellate microscope. This is true no matter how innocuous the statement and regardless of whether anyone at trial perceived it to be offensive.

         Since the beginning of the millennium, Blue has resulted in a steady stream of opinions in which courts of appeals consider and reject unpreserved improper-comment claims or, occasionally, find reversible error-only to be reversed by this Court every single time that decision is challenged here. Now that even minor comments are fair game on appeal, the number of meritless claims can only grow. Instead of continuing this exercise in futility, we should disavow Blue in its entirety[6] and hold that complaints under Article 38.05, just like most other claims, are subject to forfeiture.[7]

          A. Requiring Preservation is the General Rule

         Texas Rule of Appellate Procedure 33.1 requires the appealing party to raise a complaint at trial before he can raise it on appeal.[8] Although the rule speaks of no exceptions, we have recognized the existence of exceptions under the three-tiered approach to error preservation in Marin.[9] Under Marin, our system contains three types of rules: (1) absolute or systemic requirements or prohibitions, (2) rights that must be implemented unless expressly waived, and (3) rights that are implemented upon request.[10] Marin was a "watershed" decision in the law of error preservation, [11] and questions of "fundamental error" must now be considered within its framework.[12]

         Marin explained that most rules fall within its third category-rights that are forfeited by inaction.[13] All but the most fundamental rights are forfeited if not insisted upon by the party to whom they belong.[14] Almost all error-even constitutional error-may be forfeited if the appellant fails to object.[15] We have characterized the first two Marin categories as "small" or "narrow."[16]

         A logical corollary of the fact that almost all errors fall within the third Marin category is that, when an appellate court is faced with categorizing a particular rule, a conclusion that the rule falls within Marin category three is the default position. According a particular rule status under one of the first two categories of Marin requires sufficient reasons to justify that decision. Otherwise, the norm articulated by the contemporaneous objection requirement found in Rule 33.1 should control. The question in this case, then, is whether there is sufficient justification for exempting the type of complaint before us from the usual rules of procedural default.

         B. The Statutory Language Does Not Require Judicial-Comment Complaints to be Non-Forfetitable

         The statute prohibiting judicial comments provides:

In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.[17]

         The Court points out that the statute is phrased in mandatory language ("shall not"), but as the Court also recognizes, mandatory language, and the use of the word "shall" in particular, "does not necessarily mean that the statute identifies an absolute prohibition or a waiver-only right that can be invoked for the first time on appeal under the Marin categories."[18] In Trinidad v. State, we so held in the course of determining that a violation of the prohibition against a person being with the jury while it is deliberating was forfeitable if the defendant was aware of the violation.[19] The statute in that case is similar to the statute at issue here in that both use "shall" in conjunction with a negative: In Trinidad, the statute commanded, "No person shall be permitted to be with the jury while it is deliberating, "[20] while the statute at issue here says that the judge "shall not discuss or comment upon" the weight of the evidence.[21] Similarly, the statutory exclusionary rule found in Article 38.23 provides that, "No evidence obtained . . . in violation of [law] shall be admitted in evidence against the accused on the trial of any criminal case."[22] Despite the negative "shall" command, we have construed the statutory exclusionary rule to be a forfeitable right.[23]

         It is true that the judicial-comment statute specifically refers to the "judge" in connection with its mandatory language, but it is hard to imagine how a judicial-comment statute could omit a reference to the judge. And while Article 38.23 does not refer specifically to the judge, its "shall" language clearly applies to the judge, who is tasked with ruling upon the admissibility of evidence. Moreover, the judicial-comment statute, codified at Article 38.05, is in Chapter 38 of the Code of Criminal Procedure, which is titled "Evidence in Criminal Actions, " and which contains a number of evidentiary provisions that prescribe forfeitable rights.[24] That is not to say that every provision in Chapter 38 prescribes a forfeitable right, but the status of Article 38.05 seems sufficiently ambiguous to require resort to other factors to determine the nature of the right in question.

         C. Historically, Judicial-Comment Complaints Had to be Preserved

         The Texas statutory prohibition against judicial comments is not required by the United States Constitution: allowing judicial comments on the evidence is a common-law tradition in federal court, [25] and federal trial courts are explicitly allowed to question witnesses.[26]

         We have said, "Ordinarily, a complaint regarding an improper judicial comment must be preserved at trial."[27] The use of the word "ordinarily" is a product of the plurality decision in Blue, which granted relief as a result of a judicial comment despite the absence of an objection.[28] Before Blue, no such qualification was employed. In Minor v. State, we said simply, "When no objection is made at trial to the judge's statements nor any request made to instruct the jury, nothing is presented for review."[29] Other cases that predated Blue made similar unqualified statements in rejecting unpreserved judicial-comment claims.[30] Even when a comment was thought to indicate judicial bias, the parties have historically been required to raise such claims at trial:

Prejudice of a trial judge not based on interest is not a legal disqualification. If prejudice or opinion of guilt is indicated or shown the judge's rulings are subject to close scrutiny. The right to complain lies not in the alleged prejudice of the judge but in any errors in his rulings and conduct of the trial. The appellant complains of several errors in the trial whereby the trial judge allegedly manifested prejudice and commented on the evidence on numerous occasions. When no objection is made at trial to the judge's statements nor any request made to instruct the jury, nothing is presented for review."[31]

         D. Equity and Policy Favor Giving Trial Judges the Opportunity to Address and Cure Complaints about Judicial Comments

         One of the rationales for requiring a timely objection at trial is to give the trial judge the opportunity to cure error.[32] In explaining the law and giving instructions, a trial judge might comment on evidence without meaning to. It is possible that such an inadvertent comment could be prejudicial but could and would be cured if the impropriety were explained to the trial judge or otherwise brought to the judge's attention. A review of cases suggests that an objection is not necessarily futile, because there are cases where a judge has given a curative instruction when confronted with a claim that the judge made an improper comment.[33] An instruction to disregard is generally sufficient to cure error from an improper judicial comment.[34] As Professors Dix and Schmolesky have observed, "If a trial judge improperly comments on the weight of the evidence, an instruction to the jury to disregard is generally effective."[35]

         Moreover, anything a judge says in front of a jury could potentially be examined for its propriety.[36] An inventive appellate attorney might be able to find fault with a statement that no one who attended the trial thought was objectionable. And the appellate court might be hampered by the fact that it reviews only a cold record and is not able to view tone and demeanor[37] that could mark the difference between an innocent statement and a prejudicial comment. By contrast, the parties at trial are in a position to observe the trial judge's tone and demeanor, and a failure to complain about a particular comment would suggest that the comment was probably innocuous.[38] If appellate attorneys are allowed to litigate the propriety of anything a trial court says, regardless of the presence or absence of a trial objection, then appellate courts could well find themselves micromanaging the practices of trial courts, a task for which the appellate courts are ill-suited.

         The potential for widespread micromanagement of trial courts by the appellate courts can be seen in what has happened even after our decision in Unkart. Despite the holding in Unkart that the Blue case had no precedential value, [39] numerous appellate decisions have still considered whether judicial comments in a particular case required reversal in the absence of an objection. Although the number of opinions citing Blue has dropped since Unkart, looking only at cases since the beginning of 2015 as a representative snapshot, at least twenty-two cases have involved discussions of Blue that ultimately resulted in rejecting claims of improper judicial comments before a jury.[40] In at least two other cases during that time, the court of appeals expressly declined to address the issue of preservation, despite the apparent absence of an objection, and ultimately rejected the claims on the merits.[41] In the present case and at least one other during the time period, the court of appeals reversed the conviction on the basis of judicial comments or conduct even though no complaint was ever made at trial.[42] If, instead of Unkart's suggestion that, at most, only a tiny minority of complaints about judicial comments in front of the jury are immune from preservation requirements, we now hold that all complaints about judicial comments in front of the jury are immune from preservation requirements, I believe that appellate courts will be inundated with such claims.[43]

         Most trial judges are hard-working and well-meaning, and we should not assume that they will ignore a party's claim that a comment is impermissible, or worse, punish the attorney's client for bringing the potential impermissibility of a judge's comment to the judge's attention. Instead of encouraging parties to sandbag judges and nitpick a judge's comments at the appellate level, we should be encouraging parties to tell the trial judge if they think something he has said is improper.[44]

         I respectfully dissent.

         APPENDIX

[PROSECUTOR]: Nothing further from this witness, may this witness be excused?
THE COURT: Ma'am, once the child is a registered patient of the clinic, what do you all require for documentation on follow-up visits?
THE WITNESS: Meaning if the patient needs to come back, we would give them a little note saying you [are] due back in a ...

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