Henry Lee Hutchinson v. State

• Court: Court of Appeals of Texas
• Decided: January 16, 2014
• Docket: 10-13-00120-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-13-00120-CR

HENRY LEE HUTCHINSON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2012-1755-C2

ORDER

This appeal became ripe for disposition on September 13, 2013. In reviewing the

appeal, we have identified a preliminary matter regarding our authority to address

appellant’s first issue not raised and briefed by the parties. Rule 33.1 generally requires

that issues presented to this Court must be preserved. TEX. R. APP. P. 33.1. Accordingly,

in reliance on the Court of Criminal Appeals’ opinion in Pena v. State, 191 S.W.3d 133,

137-138 (Tex. Crim. App. 2006), we order supplemental briefing by both parties on the

following question: Is the “right to an impartial judge” a systemic requirement which permits a party to complain on appeal that such a requirement was violated, even if the party failed to complain at trial about the violation or waived the application of the law? See Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004).

It may be helpful to the briefing to distinguish this type of error from

“structural” error which impacts only the harm analysis. Id. at 339. Further, it may be

necessary to discuss the concept of “fundamental errors” recognized by Texas Rule of

Evidence 103 and “plain error” recognized in the Federal courts.

Appellant’s supplemental brief is due 21 days from the date of this order. The

State’s supplemental brief is due 14 days from the date appellant’s supplemental brief is

filed.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Order issued and filed January 16, 2014

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