Williams v. State
89 S.W.3d 325
Tex. App.
2002
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OPINION

Opinion by Justice WILLIAM J. CORNELIUS.

Shаrlandra Williams appeals her conviction for possession of a controlled sub *327 stance with intent to deliver. She was convicted in a trial to the court, which assessed her punishment at thirty years’ imprisonment.

Williams contends that the trial court erred by acting as an advocate for the State during the trial. Williams also contends that because of the poor quality of the photocopy of a photograph in the pen packet, she could not be identified by the photograph as the person in the pen packet; thus, the trial court erred in admitting it into evidence. Williams further argues that the рoor photograph is insufficient to support the court’s finding that she was convicted of a prior offense and, therefore, an habitual-offender finding is without support in the evidence.

Although the sufficienсy of the evidence to convict Wilhams is not at issue, we will summarize the evidence in order to provide a context for our review of the alleged errors. Williams was arrested by Mineóla police whеn they executed a search warrant for her residence. The officers found crack cocaine in the house, and Williams gave a written statement in which she admitted that she had been selling crack cocaine. In a nonjury trial, the court found her guilty. At the punishment phase, the State presented evidence that Williams had two prior felony convictions, and the court sentenced Williams to thirty years’ imprisonment.

Williams first contends that the trial court committed error of constitutional dimension by assuming the role of an advocate for the State by asking questions of the State’s expert witness in order to lay the proper predicate for the admission into evidence of that expert’s opinions. At trial, defense counsel objected to the admission of testimony by a chemist about the chemical makеup of a substance the State alleged to be cocaine. The objection was based on the State’s failure to lay a foundation for identification of the substance, as required by Kelly v. State, 824 S.W.2d 568, 578 (Tex.Crim.App.1992). 1

The trial court overruled the objection. Before excusing the chemist, however, the trial court asked her a series of questions designed to meet the Kelly requirements and determine the reliability of the testing methods usеd, the type of device used, and the potential for error in ‍‌​​‌‌‌​​​‌​‌​‌​‌‌​​​‌​‌​‌‌‌‌​‌‌​‌‌‌​‌‌​‌​​‌​‌‌​​‍the test. After the court had asked these questions, the State then further questioned the chemist about the factors set out in Kelly.

On appeal, Williams does not complain about the adequacy of the predicate. Instead, she contends the trial court committed reversible error by participating in the proceeding as an advoсate rather than remaining a neutral arbiter. Although Williams cites a number of constitutional provisions she alleges the trial court violated, the thrust of her argument is directed at the concept of a deprivation of due process of law.

*328 We have addressed a similar contention on two previous occasions. See Galvan v. State, 988 S.W.2d 291, 297 (Tex.App.-Texarkana 1999, pet. ref d), and Moreno v. State, 900 S.W.2d 357, 359-60 (Tex.App.-Texarkana 1995, no pet.). As we recognized in those two cases, duе process demands an impartial adjudicator to make a ruling based on admissible evidence in a forum where the opportunity to cross-examine and present evidence is allowed. Rose v. State, 752 S.W.2d 529, 536 (Tex. Crim.Aрp.1987). A trial court is permitted to question a witness when seeking information to clarify a point, or to get the witness to repeat something that the judge could not hear. See Brewer v. State, 572 S.W.2d 719, 721 (Tex.Crim.App. [Panel Op.] 1978); Ash v. State, 420 S.W.2d 703, 705 (Tex.Crim.App.1967); Hopperwood v. State, 39 Tex.Crim. 15, 44 S.W. 841, 842 (1898). Two potential dangers arise when the trial court goes beyond this permissible questioning: (1) the trial court may convey its opinion of the case to the jury and ultimately influence the jury’s decision, Morrison v. State, 845 S.W.2d 882, 886 n. 10 (Tex.Crim.App.1992); and (2) the trial court in ■ its zeal and active participation may become an advocate (in the adversarial process) and lose the neutral and detached role required for a judge. 2 Moreno v. State, 900 S.W.2d at 359-60.

The first potential danger does not apply to this case. The Texas Court of Criminal Appeals has recognized that there is no danger that any ‍‌​​‌‌‌​​​‌​‌​‌​‌‌​​​‌​‌​‌‌‌‌​‌‌​‌‌‌​‌‌​‌​​‌​‌‌​​‍perceived bias on the part of the trial court will influence the fact-finder when questioning doеs not occur in the presence of the jury. Id.; see Marshall v. State, 164 Tex.Crim. 167, 297 S.W.2d 135 (1956). Because the trial court’s questioning here occurred during a bench trial, this danger does not apply to this case. See Navarro v. State, 477 S.W.2d 291, 292 (Tex.Crim.App.1972); Galvan v. State, 988 S.W.2d at 297.

The remaining issue is whether the trial court’s questions were of such a nature as to indicate that the court abandoned its proper role as arbiter and became an advocate for the State. This issue has not been addressed prеviously in Texas in connection with a “Kelly” proceeding. In such a proceeding, the judge is to act as the “gatekeeper” of proffered scientific evidence and is to determine both the reliability of the evidence and its relevance to the case. The cases do not address the question whether this gatek-eeping role allows or requires the judge to serve not only as an arbiter, but alsо as an active participant in the process.

The term “gatekeeper” itself suggests a person who decides whether evidence will be entered into the trial proceeding rather than а person who assists in presenting evidence used to make the decision.

This general question was addressed by Miramon v. Bradley, 701 So.2d 475 (La. Ct.App. 1st Cir.1997), which built on earlier Louisiana cases to recognize that it is the responsibility of the opponent of the prоferred evidence to test the factual bases of an opinion, while the court serves as the gatekeeper. See Alice B. Lustre, Post-Daubert Standards for Admissibility of Scientific and Other Expert Evidence in State Courts, 90 A.L.R. 5th 453, 499 (2001).

*329 In an аnalogous area, the Texas ‍‌​​‌‌‌​​​‌​‌​‌​‌‌​​​‌​‌​‌‌‌‌​‌‌​‌‌‌​‌‌​‌​​‌​‌‌​​‍Court of Criminal Appeals in Morrison v. State, 845 S.W.2d at 886 n. 10, reviewed the question of whether it was proper to permit a jury to interject itself into a proceeding by framing written questions that could then be asked by the trial court.

The cases that allow a trial court to interject itself into the proceedings include such matters as venue proceedings in other than Kelly contexts and guilty pleas, as well as cases where a judge askеd a question because he did not hear what the witness had just stated. See Ash v. State, 420 S.W.2d 703; Rodrigues v. State, 110 Tex.Crim. 267, 8 S.W.2d 149 (1928). This case is different. The trial court did not ask questions designed to elicit facts as evidence. It instead asked questions designed to determine whеther evidence being offered was admissible and could be considered. This distinction is the same as that approved in Milo v. State, 152 Tex.Crim. 405, 214 S.W.2d 618 (1948). In that case, the court recognized that, even though a trial court should ordinarily refrain from asking questions of a witness, it was permissible to aid the court in determining whether evidence was admissible.

As we recognized in Moreno, a trial court’s questions are likely to be closely tied to its mental processes. In this case, hоwever, the court appears to be seeking facts for its role in determining whether expert testimony was admissible. Although we agree that it is improper for a court to interject itself as an advoсate on behalf of either side’s position about the admission of such evidence, this record does not suggest that the trial court became so involved as an advocate that it could not makе an objective finding as to guilt and punishment.

Williams next contends that the trial court erred by admitting a pen packet at the punishment phase of the ‍‌​​‌‌‌​​​‌​‌​‌​‌‌​​​‌​‌​‌‌‌‌​‌‌​‌‌‌​‌‌​‌​​‌​‌‌​​‍trial. We use an abuse of discretion standard when reviewing the trial court’s decision to admit evidence. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002); Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). We will not reverse the trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d at 760; Burden v. State, 55 S.W.3d at 615.

Williams contends that the identification testimony wаs inadequate to show that the person convicted in the prior convictions was the Sharlandra Williams who was on trial. Although fingerprints were available, the State did not use them to connect Williams to thе pen packet. Instead, the State presented testimony by a jailer who identified Williams by comparing scars, marks, and tattoos listed in the pen packet to a record made of Williams’ scars, marks, and tattoos made by the jailer at the county jail, and through comparison of a photocopy of her photograph. She contends that the evidence is not sufficiently specific to рrove that she is the same individual described in the packet.

As recognized in Littles v. State, 726 S.W.2d 26, 32 (Tex.Crim.App.1984) (op. on reh’g), it has long been an accepted practice to identify the accused by means of a photograph. In this case, Williams argues that the image in the photocopy of the photograph is so indistinct because of the photocopying process that it could not adequately be used to identify her. We disagree. The photograph is not as distinct as one might wish, but it is not so dim or indistinct as to make it unidentifiable. Moreover, a jailer who had examined Williams testified that the scars on her body matched those dеscribed in the pen packet.

The trial court did not abuse its discretion by finding the identification sufficient *330 and admitting the pen packet into evidence.

The judgment is affirmed.

Notes

1

. In Kelly, the Texas Court of Criminal Appeals set out a three-pronged reliability test and identified seven nonexclusive factors for courts to consider in assessing the reliability of scientific evidence. Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992). Factors that could affect a trial court’s determination of reliability include, but are not limited to, thе following: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications оf the experts) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Id.

2

. The court is forbidden to serve as ‍‌​​‌‌‌​​​‌​‌​‌​‌‌​​​‌​‌​‌‌‌‌​‌‌​‌‌‌​‌‌​‌​​‌​‌‌​​‍counsel and judge at the same time. United States v. Saenz, 134 F.3d 697, 702 (5th Cir.1998); Ex parte Miller, 696 S.W.2d 908 (Tex.Crim.App. 1985). As we recognized in Galvan v. State, 988 S.W.2d 291 (Tex.App.-Texarkana 1999, pet. refd). Texas is "second to none” in its disapproval of judges’ examinations of witnesses during a jury trial, which is common practice in federal courts because of Fed. R.Evid. 614. Morrison v. State, 845 S.W.2d 882, 903 (Tex.Crim.App.1992).