Proenza v. State, NO. PD-1100-15

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation541 S.W.3d 786
Decision Date15 November 2017
Parties Abraham Jacob PROENZA, Appellant v. The STATE of Texas
Docket NumberNO. PD-1100-15

541 S.W.3d 786

Abraham Jacob PROENZA, Appellant
v.
The STATE of Texas

NO. PD-1100-15

Court of Criminal Appeals of Texas.

Delivered: November 15, 2017


Kristen Jernigan, Georgetown, TX, for Appellant.

John R. Messinger, Assistant State Prosecuting Attorney, Stacey Soule, Austin, TX, for The State.

OPINION

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

Abraham Proenza did not object when his trial judge began asking pointed, substantive questions of a witness bearing

541 S.W.3d 789

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,

541 S.W.3d 790

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. State5 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
541 S.W.3d 791
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

541 S.W.3d 792

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...

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121 practice notes
  • Gonzalez v. State, NO. AP-77,066
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 4, 2020
    ...violates Article 38.05 if it is "reasonably calculated to benefit the State or prejudice the defendant's rights." Proenza v. State , 541 S.W.3d 786, 791 (Tex. Crim. App. 2017) (internal quotation marks omitted). If such an error occurs and is raised as a freestanding statutory complaint, it......
  • Pacas v. State, NOS. 01-18-01016-CR
    • United States
    • Court of Appeals of Texas
    • September 22, 2020
    ...625, 627, 48 S.W. 70 (1898).1 See Tex. Penal Code § 22.02(b).2 Tex. Const. art. I, § 10 (emphasis added).3 See Proenza v. State , 541 S.W.3d 786, 797 (Tex. Crim. App. 2017) ("When it comes to non-forfeitable rights, the legal responsibility of assuring compliance with these rights falls squ......
  • State v. Childs, No. S-20-024.
    • United States
    • Supreme Court of Nebraska
    • June 11, 2021
    ...indeed would the case be in which we would find plain error in a judge's failure to sua sponte exclude evidence"); Proenza v. State , 541 S.W.3d 786 (Tex. Crim. App. 2017) (recognizing trial judge has no duty to enforce forfeitable rights unless requested to do so); United States v. Amador-......
  • Ex parte Pue, NO. WR–85,447–01
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 28, 2018
    ...is good reason to think that the Hill rule, not the Hill exception, ought to apply. The Court's recent opinion in Proenza v. State , 541 S.W.3d 786, 2017 WL 5483135, No. PD-1100-15 (Tex. Crim. App., del. Nov. 15, 2017), provides some guidance. There the Court said that, when the law places ......
  • Request a trial to view additional results
121 cases
  • Gonzalez v. State, NO. AP-77,066
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 4, 2020
    ...violates Article 38.05 if it is "reasonably calculated to benefit the State or prejudice the defendant's rights." Proenza v. State , 541 S.W.3d 786, 791 (Tex. Crim. App. 2017) (internal quotation marks omitted). If such an error occurs and is raised as a freestanding statutory complaint, it......
  • Pacas v. State, NOS. 01-18-01016-CR
    • United States
    • Court of Appeals of Texas
    • September 22, 2020
    ...625, 627, 48 S.W. 70 (1898).1 See Tex. Penal Code § 22.02(b).2 Tex. Const. art. I, § 10 (emphasis added).3 See Proenza v. State , 541 S.W.3d 786, 797 (Tex. Crim. App. 2017) ("When it comes to non-forfeitable rights, the legal responsibility of assuring compliance with these rights falls squ......
  • State v. Childs, No. S-20-024.
    • United States
    • Supreme Court of Nebraska
    • June 11, 2021
    ...indeed would the case be in which we would find plain error in a judge's failure to sua sponte exclude evidence"); Proenza v. State , 541 S.W.3d 786 (Tex. Crim. App. 2017) (recognizing trial judge has no duty to enforce forfeitable rights unless requested to do so); United States v. Amador-......
  • Ex parte Pue, NO. WR–85,447–01
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 28, 2018
    ...is good reason to think that the Hill rule, not the Hill exception, ought to apply. The Court's recent opinion in Proenza v. State , 541 S.W.3d 786, 2017 WL 5483135, No. PD-1100-15 (Tex. Crim. App., del. Nov. 15, 2017), provides some guidance. There the Court said that, when the law places ......
  • Request a trial to view additional results

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