Proenza, Abraham Jacob
PD-1100-15
| Tex. Crim. App. | Nov 15, 2017Background
- This case concerns whether complaints about a trial judge’s comments to a jury under Tex. Code Crim. Proc. art. 38.05 must be preserved by timely objection (contemporaneous-objection rule) or may be raised for the first time on appeal.
- Historically Texas courts required an objection at trial to preserve an improper-judicial-comment claim; only a plurality in Blue suggested narrow exceptions for particularly egregious comments.
- The Court’s recent decision expanded the scope of Blue by effectively exempting all judicial comments made in front of a jury from forfeiture, allowing appellate review without a trial objection.
- The dissent argues this departure overturns longstanding precedent, will invite numerous unpreserved, often meritless claims, and micromanage trial judges by subjecting every jury-facing remark to appellate scrutiny.
- Key policy concerns include whether the statute’s mandatory language requires non-forfeitability, the role of Marin’s three-category framework for preservation, and the trial judge’s opportunity to cure via instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judicial-comment claims under Art. 38.05 are forfeitable without a timely objection | Appellant: such comments can be reviewed on appeal even if unpreserved—Blue permits reversal for sufficiently egregious comments | State: Art. 38.05 claims are forfeitable under Rule 33.1 and Marin absent timely objection | Court (majority): expanded Blue’s effect to allow appellate review of judicial comments made before a jury without contemporaneous objection; dissent disagrees |
| Does the statute’s use of "shall not" make the right non-forfeitable | Appellant: mandatory statutory language creates a waiver-only right enforceable on appeal | State: mandatory language does not compel non-forfeitability; similar statutes have been treated as forfeitable | Court: majority treats comments reviewable on appeal; dissent reasons statutory history supports forfeiture |
| How Marin’s categories apply to judicial-comment claims | Appellant: some rights in Marin’s higher categories allow appellate-only invocation | State: judicial-comment rule is not a category-one or two right and thus defaults to category three (forfeitable) | Court: majority departs from default; dissent emphasizes Marin default and requires strong reason to put this right in category one/two |
| Policy: Should trial judges get chance to cure and avoid micromanagement | Appellant: appellate review ensures accountability and corrects prejudice even if unobjected | State/Dissent: requiring objections gives judges chance to cure with instructions and prevents avalanche of appellate claims; appellate courts ill-suited to micromanage trial demeanor | Held: Majority permits appellate consideration without objection; dissent warns of practical harms and urges adherence to preservation rule |
Key Cases Cited
- Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality opinion suggesting some judicial comments may be reversible absent objection)
- Unkart v. State, 400 S.W.3d 94 (Tex. Crim. App. 2013) (held Blue lacked precedential value and narrowed its effect)
- Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (articulated three-category framework for error preservation)
- Trinidad v. State, 312 S.W.3d 23 (Tex. Crim. App. 2010) (statutory "shall" language does not automatically render right non-forfeitable)
- Minor v. State, 469 S.W.2d 579 (Tex. Crim. App. 1971) (historical rule: no review if no trial objection)