Daniel Alexander Gaytan v. State, 05-14-01315-CR

Background

Appellant Daniel Gaytan pleaded guilty to burglary of a habitation (cause F13‑56007‑Q) and received five years deferred adjudication. While on supervision he was indicted for a new burglary (cause F14‑56218‑Q).
The State moved to adjudicate guilt in the deferred case; Gaytan pleaded “true” to the motion to adjudicate and pleaded guilty in the new case in open court (no plea bargains for the open pleas).
At the punishment/adjudication hearing the trial judge questioned Gaytan repeatedly about a chest tattoo (reading “TEXAS” and “OCT” for Oak Cliff), suggested Gaytan consider the State’s 10‑year offer, and made several critical remarks about Gaytan and his mother.
The court adjudicated guilt on the deferred case and sentenced Gaytan to 15 years in each case. Gaytan did not object at trial to the judge’s questions or comments.
On appeal Gaytan raised claims that the judge violated Tex. R. Evid. 605, considered evidence outside the record, abandoned neutrality (due process), refused to consider the full punishment range, and that the adjudication judgment should be corrected to reflect an open plea.
The Court of Appeals affirmed both judgments but modified the deferred adjudication judgment to show Gaytan entered an open plea of “true” (not a plea bargain sentence).

Issues

Issue	Appellant's Argument	State's Argument	Held
1. Whether judge’s questioning violated Tex. R. Evid. 605 (judge as witness)	Judge stepped down and acted as a witness by asking about tattoo and gang affiliation	Judge’s questions were permissible fact‑finding; did not become a prosecution witness	Court: No Rule 605 violation; judge’s questions were not the functional equivalent of testimony (overruled)
2. Whether judge improperly considered evidence outside the record (tattoo)	Tattoo was extraneous, outside the evidentiary record, and was used to infer gang membership for punishment	No preservation of complaint; record lacks proof court relied on tattoo as evidence of gang affiliation	Court: Issue forfeited for lack of objection; no showing judge actually relied on tattoo (overruled)
3. Whether judge abandoned neutrality / violated federal due process	Cumulative comments, questioning, and conduct showed bias and denied a neutral arbiter	Complaints were not preserved; conduct did not rise to fundamental/systemic error	Court: No fundamental error shown; claims forfeited by failure to object (overruled)
4. Whether judge’s remarks about plea offer show refusal to consider full punishment range	Judge urged taking 10‑year offer and said she might give more than ten, showing a predetermined sentence	Court considered evidence and sentenced within statutory range; no evidence judge refused to consider full range	Court: No denial of due process; sentence (15 years) within 2–20 year range and record does not show prejudgment (overruled)
5. Whether judicial comments re: mother (continuance, chemotherapy) showed bias	Remarks were improper and demonstrated hostility that affected fairness	Same preservation/fundamental error analysis; comments did not meet systemic error standard	Court: Not preserved; not fundamental error (overruled)
6. Whether absence of timely objection bars review of judge’s participation in questioning	Appellant argued exceptions/fundamental error excused preservation	State argued ordinary forfeiture rules apply; only narrow categories excused	Court: Forfeiture rules apply; no exception shown (overruled)
7. Whether adjudication judgment should be reformed to reflect open plea	Judgment incorrectly indicated plea bargain sentence; record shows Gaytan pleaded “true” and was sentenced on an open plea	State agreed modification appropriate	Court: Modified judgment to reflect Gaytan pleaded “true” and sentence was imposed after an open plea (granted)

Key Cases Cited

Hensarling v. State, 829 S.W.2d 168 (Tex. Crim. App. 1992) (judge may not "step down from the bench" and testify)
Hammond v. State, 799 S.W.2d 741 (Tex. Crim. App. 1990) (functional‑equivalent test for judicial testimony)
Unkart v. State, 400 S.W.3d 94 (Tex. Crim. App. 2013) (preservation and fundamental‑error discussion for judicial comments)
Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2001) (plurality addressing judge’s comments affecting presumption of innocence)
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (distinction between forfeitable errors and systemic/absolute requirements)
Grado v. State, 445 S.W.3d 736 (Tex. Crim. App. 2014) (trial court refusing to consider full punishment range is non‑forfeitable)