Derek Clinton Ward v. State, 06-15-00110-CR

Derek Clinton Ward pled guilty to state-jail felony theft for taking a welding machine from his employer and agreed to a plea deal where the State would recommend probation if he paid restitution by sentencing on May 21, 2015.
Ward had been laid off from his oilfield job about a month and a half before sentencing; he testified he elected not to seek immediate work to rest his surgically injured back and to see how unemployment would pay.
At sentencing the trial judge questioned Ward about when he was laid off and characterized Ward’s choice as taking a “month-and-a-half vacation” instead of working to earn restitution; the judge denied probation and mentioned that active work would have influenced a different decision.
Ward did not object at trial to the judge’s questions/comments and filed no motion for new trial; he later appealed claiming the judge became an advocate for the State and lost neutrality.
The State’s brief argues the complaint is unpreserved, that the judge’s questions were permissible fact–finding/clarifying inquiries, and that no fundamental (egregious) harm to Ward’s presumption of innocence or to judicial neutrality occurred.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of error	Ward contends judge’s comments were improper and merits review on appeal	State: Ward failed to object at trial or file new-trial motion, so issue is unpreserved	State: Unpreserved; should be rejected absent fundamental error
Whether judge’s questioning was improper advocacy	Ward argues judge became an advocate for the State and lost neutrality	State: Questions were clarifying/fact-finding, within permissible bounds	State: Questions were permissible; not advocacy
Whether judge’s comments tainted presumption of innocence	Ward claims comments deprived him of a neutral magistrate and tainted presumption	State: No jury present; comments did not bear on presumption or impartiality	State: No egregious harm shown to presumption of innocence
Whether any alleged error was harmful enough to require reversal	Ward asserts constitutional error requiring reversal	State: Even if error, no egregious harm or probable prejudice shown	State: No probable prejudice or fundamental error; affirm conviction

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (standard for reversible error when no timely objection is made)
Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (trial judge comments can be fundamental error if they taint presumption of innocence)
Jasper v. State, 61 S.W.3d 413 (Tex. Crim. App. 2001) (comments must bear on presumption of innocence or vitiate impartiality to constitute fundamental error)
Moreno v. State, 900 S.W.2d 357 (Tex. App.—Texarkana 1995) (judge questioning permitted to clarify facts; no challenge without objection unless fundamentally erroneous)
Brewer v. State, 572 S.W.2d 719 (Tex. Crim. App.) (permissible limits on judicial questioning noted)
Dockstader v. State, 233 S.W.3d 98 (Tex. App.—Houston [14th Dist.] 2007) (two-part test: impropriety and probable prejudice)
Johnson v. State, 452 S.W.3d 398 (Tex. App.—Amarillo 2014) (comments not fundamental error where they did not vitiate impartiality)