Opinion issued March 17, 2026
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00411-CR NO. 01-24-00412-CR ——————————— KENDRICK L. BESS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1752816 Trial Court Case No. 1752758
MEMORANDUM OPINION
A jury convicted Kendrick L. Bess of aggravated assault of a family member
(Trial Court Case No. 1752816; 01-24-00411-CR) and possession of a controlled
substance, methamphetamine, weighing more than 4 grams and less than 200 grams by aggregate weight (Trial Court Case No. 1752758; 01-24-00412-CR). See
TEX. PEN. CODE § 22.02 (aggravated assault); TEX. HEALTH & SAFETY CODE
§ 481.115 (possession of controlled substance). Both charges were enhanced with
allegations that Bess had previously been convicted of aggravated assault with a
deadly weapon and evading arrest or detention with a motor vehicle. Bess pleaded
true to the enhancement allegations, and the trial court assessed punishment of 30
years in prison for each conviction, to run concurrently.
In a single issue on appeal, Bess argues that the trial court’s comments and
questions throughout the trial deprived him of due process under the United States
Constitution. We affirm.
Background
Three days after Christmas, Houston Police Department officers responded
to a 911 call at the apartment of complainant, Elisha Hawkins. She told the officers
that Bess, her boyfriend, had choked her, held a gun to her head, and threatened to
kill her after she refused to have sex with him because she felt sick. She also told
them that he had been heavily using illegal drugs. A pat-down search revealed that
Bess was in possession of loaded gun and a prescription bottle with a peeled-off
label that contained methamphetamine. Bess was indicted and charged with
aggravated assault of a family member and possession of a controlled substance.
He pleaded not guilty, and his case was tried to a jury.
2 During voir dire, the trial court instructed the venire panel about the State’s
burden to prove guilt beyond a reasonable doubt, noting several times that the jury
must presume that the defendant is not guilty until proven otherwise. The judge
explained the State’s burden of proof and twice referred to the indictment as the
court’s charging tool, admonishing the venire members to remember that the
indictments do not “prove anything.”
Throughout the trial, the judge occasionally summarized prior testimony,
especially after testimony had been interrupted by objections, repeated previously
asked questions or asked his own questions of the witnesses, and made brief
comments when ruling on objections. Before the defense attorney cross-examined
the complainant, the judge instructed her to answer the defense attorney’s
questions directly. Bess did not object to the trial court’s comments and questions
or its statements in voir dire.
The jury found Bess guilty of both charges. The trial court assessed
punishment at 30 years in prison on each charge, and Bess appealed.
Analysis
In a single issue on appeal, Bess argues that he was deprived of due process
because the trial court’s comments and questions throughout trial demonstrate that
he did not receive a fair trial because the judge was not impartial.
3 I. Multifarious Issue
The State asserts that the appellant’s issue is multifarious because it
combines multiple contentions of error by the trial judge and arguments about both
statutory and constitutional violations. Thus, the State argues, the sole issue should
be overruled.
“When an appellant bases a single point of error on more than one legal
theory or specific ground, the point of error is multifarious.” Thomas v. State, 615
S.W.3d 552, 566 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (citing Davis v.
State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010)). We may disregard and refuse
to review multifarious issues, but we may also elect to consider such points of error
in the interest of justice and if we can determine with reasonable certainty the error
about which the appellant complains. Davis, 329 S.W.3d at 803 (“Because
appellant bases his single point of error on more than one legal theory, his entire
point of error is multifarious. . . . We will, however, review his arguments in the
interest of justice.”); Thomas, 615 S.W.3d at 566; Stults v. State, 23 S.W.3d 198,
205 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (“[W]e may also elect to
consider [multifarious points of error] if we are able to determine, with reasonable
certainty, the alleged error about which the complaint is made.”).
Here, Bess has identified multiple instances of comments or questions made
by the trial judge during trial. While his statement of the relevant law focuses on
4 constitutional due process, he has also quoted Article 38.05 of the Texas Code of
Criminal Procedure, a statutory prohibition against the trial judge commenting on
the weight of admissible evidence and making “any remark calculated to convey to
the jury his opinion of the case.” TEX. CODE CRIM. PROC. art. 38.05. His caselaw,
however, argues only about a violation of due process without addressing Article
38.05.
Further, he argues that it is the cumulative effect of all the trial judge’s
comments that deprived him of a fair trial. Even though his sole issue is a
challenge to multiple instances of the trial judge making comments or questioning
witnesses, we can determine from his argument, with reasonable certainty, that
Bess is complaining about the denial of due process based on the combined effect
of (1) the judge’s comments in voir dire, (2) comments that Bess contends
constitute testifying for witnesses, and (3) comments that Bess contends were
directed at his counsel. We decline the State’s invitation to overrule Bess’s sole
issue as multifarious, and in the interest of justice, we will review Bess’s
arguments. See Davis, 329 S.W.3d at 803; Thomas, 615 S.W.3d at 566; Stults, 23
S.W.3d at 205.
5 II. Due Process Right to an Impartial Judge
A. Preservation of Error
Bess concedes that he did not object at trial to any of the challenged
statements or questions made by the trial judge. “With very few exceptions, a party
may not complain on appeal about a trial error unless the party made a
contemporaneous objection.” Rodriguez v. State, No. 01-23-00664-CR, — S.W.3d
–, 2025 WL 1335328, at *1 (Tex. App.—Houston [1st Dist.] May 8, 2025, pet.
ref’d) (citing Proenza v. State, 541 S.W.3d 786, 797 (Tex. Crim. App. 2017)). In
Rodriguez, this Court explained that while the Court of Criminal Appeals
determined in Proenza that an appellant need not object at trial to argue on appeal
about a violation of article 38.05 of the Code of Criminal Procedure, the Court of
Criminal Appeals “made no pronouncement on the preservation requirements for a
complaint that a trial court’s comments violated the due process protections of the
federal constitution.” Rodriguez, 2025 WL 1335328, at *4. In that case, we
“assum[ed] without holding, that the appellant may raise his due-process complaint
without a trial objection,” and we considered the merits of the appellant’s
arguments. Id. at *5. We follow the approach used in Rodriguez, and we assume
without holding that Bess may raise his due process complaint in our court despite
the lack of contemporaneous objections.
6 We limit our analysis to those specific comments that Bess actually argues
about in his brief. These are (1) the judge’s comments in voir dire that the
defendant is presumed not guilty until proven otherwise and that the indictment is
the court’s charging tool; (2) the judge’s comments that Bess contends constitute
testifying for the witnesses (saying he thought Bess was handcuffed, and saying,
“So she’s feeling bad, and he wants some action”); and (3) the judge’s comments
that Bess contends were aimed at his counsel (comments made after denying
counsel’s request to approach the bench, after denying an objection that a witness’s
answer was nonresponsive, and before cross-examination of the complainant).
Although he lists additional comments in the background of his brief, he does not
make any specific argument about many of them, and we may not make arguments
on his behalf. See Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995)
(“From appellant’s brief, we cannot discern his specific arguments, and we will not
brief appellant's case for him.”); Mayweather v. State, 722 S.W.3d 116, 120 (Tex.
App.—Houston [1st Dist.] 2025, no pet.) (“By claiming the evidence is insufficient
without explaining how, the appellant is inviting us to make arguments for him.
Doing so would require abandoning our role as impartial arbiter, so we decline the
invitation.”).
7 B. Due Process Standards
The Fourteenth Amendment provides that the State may not “deprive any
person of life, liberty, or property, without due process of law.” U.S. CONST.
amend. XIV. “A neutral and detached judge is one of the minimum requirements
of due process in criminal proceedings.” Avilez v. State, 333 S.W.3d 661, 673
(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); see, e.g., Ward v. Vill. of
Monroeville, Ohio, 409 U.S. 57, 62 (1972) (due process requires “neutral and
detached judge”); Brumit v. State, 206 S.W. 3d 639, 645 (Tex. Crim. App. 2006)
(“Due process requires a neutral and detached hearing body or officer.”). “When a
claim of judicial bias is raised, we review the entire record to determine whether
the judge’s bias or prejudice denied the defendant due process.” Riggins v. State,
714 S.W.3d 74, 90 (Tex. App.—Houston [1st Dist.] 2023, pet. ref’d) (citing
Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007,
pet. ref’d)). “The test for determining whether a trial court’s comments violate
federal due process protections is 1) whether the comments were improper and, if
so, 2) whether the complaining party can show serious prejudice.” Rodriguez, 2025
WL 1335328, at *5.
“Absent a clear showing of bias, we presume a trial court is neutral and
detached.” Tapia v. State, 462 S.W.3d 29, 44 (Tex. Crim. App. 2015). A judge’s
ordinary efforts at courtroom administration will not support a claim of judicial
8 bias even when they include “expressions of impatience, dissatisfaction,
annoyance, and even anger.” Liteky v. United States, 510 U.S. 540, 555–56 (1994).
While a trial court should limit its participation in a trial to the exercise of
supervision, a judge is not prohibited from directing comments to a witness or
asking a witness questions for the purpose of clarification. Stewart v. State, 438
S.W.2d 560, 561–62 (Tex. Crim. App. 1969). However, the trial judge must not
convey his opinion of the case to the jury, or “becom[e] an advocate in the
adversarial process.” Hunter v. State, 691 S.W.3d 247, 251 (Tex. App.—Dallas
2024, no pet.); see United States v. Saenz, 134 F.3d 697, 701–02 (5th Cir. 1998)
(noting that federal trial judge may question witnesses to elicit or clarify facts
without falling afoul of due process so long as judge’s behavior does not confuse
the functions of judge and prosecutor); Avilez, 333 S.W.3d at 673 (“[D]ue process
will not permit a judge to assume the role of a prosecutor.”).
Further, “judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases,” will not
demonstrate that the judge is not impartial. Liteky, 510 U.S. at 555. But such
remarks “may do so if they reveal an opinion that derives from an extrajudicial
source; and they will do so if they reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible.” Id. “Broadly speaking, a trial
court’s comments become “improper,” for purposes of due process, when the trial
9 court takes on a role not permitted to a judge at common law—such as witness—or
when the trial court takes on a permitted role—such as commenting on evidence—
in a manner that shows partiality.” Rodriguez, 2025 WL 1335328, at *6.
C. Voir Dire Comments
Bess argues on appeal that the court erred by stating during voir dire that he
was presumed to be “not guilty” as opposed to presumed “innocent,” and by
referring to the indictment as the “Court’s charging tool.” He asserts that these
statements “laid the groundwork for the jury to perceive the Trial Court as a
partner with the State throughout the rest of the trial.” We disagree.
“The United States Constitution prohibits a trial judge from making a
comment in front of the jury that effectively destroys a defendant's constitutional
presumption of innocence.” Irsan v. State, 708 S.W.3d 584, 607 (Tex. Crim. App.
2025) (quotation omitted). The presumption of innocence refers to an accused’s
“right to be free from criminal conviction unless the State can prove his guilt
beyond a reasonable doubt by probative evidence adduced at trial.” Miles v. State,
204 S.W.3d 822, 825 (Tex. Crim. App. 2006). “When a jury is told of this
presumption, it is told, in effect, to judge an accused’s guilt or innocence solely on
the basis of the evidence adduced at trial and not on the basis of suspicions that
arise from the fact of his arrest, indictment, or custody.” Id.
10 During voir dire, the trial court made the following comments about the
presumption of innocence.
What do we know about this case? Pretty easy. We know for sure that this man on trial enjoys a presumption of innocence. As he stands here right now, he is presumed to be not guilty. There is no ifs, ands, or buts that follow that sentence. Right now Mr. Kendrick Bess is simply not guilty until proven otherwise. It’s called the presumption of innocence.
....
In this state, in this nation, if you are charged with a criminal offense, anything from a traffic ticket to capital murder, you are presumed to be not guilty until proven otherwise in the course of a trial.
So we know right now, if this is Kendrick Bess, if it is, I don’t know, he is presumed to be not guilty.
The State filed the case. It’s called the State versus Kendrick Bess. Since the State files the case, the State and the State alone must prove this case. The Defense has nothing to prove.
You know why? And you do know why. He’s presumed to be not guilty. He enjoys that protection right now. So the State files the case. The State and the State alone must prove this case.
Mr. Bess stands charged by indictment—two papers right here—with aggravated assault of a family member and a drug offense, methamphetamine, 4 to 200 grams.
What is an indictment? The indictment is the Court’s charging tool. It tells the man on trial exactly what he’s charged with. It tells the Government what they must prove in the case beyond a reasonable doubt for a verdict of guilty.
11 These documents [the indictments] don’t prove anything. It’s just the Court’s charging tool to start the trial. They are not evidence. They don’t prove or disprove anything for either side. And they’re called the indictment in the case.
Contrary to Bess’s argument, the trial court’s statements during voir dire in
fact bolstered the presumption of innocence by explaining in no uncertain terms
that neither the filing of the case nor the indictment were evidence, and the State
bore the burden of proof. Moreover, a valid indictment is necessary to vest a court
with jurisdiction and allow it to start the trial. See Jenkins v. State, 592 S.W.3d
894, 898 (Tex. Crim. App. 2018); see also TEX. CONST. art. V § 12(b) (“The
presentment of an indictment or information to a court invests the court with
jurisdiction of the cause.”).
We conclude that the judge’s explanation of the indictment and the State’s
burden of proof were not improper. See Rodriguez, 2025 WL 1335328, at *5–6.
D. Trial Court Comments Regarding Witness Testimony
Bess argues that the trial judge was not neutral and detached when he
questioned the witnesses and “at times testif[ied] himself for the witnesses.”
Appellant’s Br. 24. In his argument, Bess challenged two specific instances. The
first instance occurred during the direct examination of the officer who responded
to the 911 call and detained Bess in the back of his patrol car. After a bench
discussion and objection in open court, the State asked the officer whether he
12 returned to the apartment to speak with the complainant after placing Bess in the
patrol car.
State: Okay. And actually I’m going to circle back. While you had the defendant at your patrol vehicle, did he say anything to you that was peculiar?
Defense: Objection, calls for a hearsay response.
Court: Overruled, Counsel.
If you recall, you got him inside the car. Is he handcuffed, if you know? I’m thinking yes.
Witness: Oh, yeah, yeah. He was cuffed, yes.
Court: Behind the back, I imagine?
Witness: Yes.
Court: All right. And what, if anything, does he say to you beside the car right there, if you recall?
The second instance occurred shortly after the first, also on direct
examination of the responding officer, who was testifying about the statement the
complainant gave minutes after Bess was removed from the apartment. The judge
overruled objections based on hearsay and the Confrontation Clause after the State
argued that the complainant’s statement was an excited utterance. The officer
testified that the complainant told him the incident began after she refused to have
sex with Bess because she had been “feeling sick.”
Defense: Objection, Your Honor. He’s narrating from the offense report. Witness: I’m just trying to paraphrase. 13 Court: He’s paraphrasing, Counsel. It’s overruled. So she’s feeling bad, and he wants some action. Witness: Right. Right. Yes, sir. Court: Right? Witness: Yes, sir.
“[T]rial courts have broad discretion in managing the course of a trial
generally.” Dang v. State, 154 S.W.3d 616, 619 (Tex. Crim. App. 2005); see also
TEX. R. EVID. 611 (governing mode and order of examining witnesses and
presentation of evidence including for several purposes including determining truth
and avoiding wasting time). The court’s comments and questions here summarized
the testimony to maintain the momentum of the trial and facilitate efficient
presentation of evidence. See Dang, 154 S.W.3d at 619; TEX. R. EVID. 611. In the
first instance, the judge’s comments and questions elicited clarification after
several interruptions in the testimony to address objections. In the second, the
comment, while colloquial, restated the testimony the witness gave just before the
objection. In neither instance did the trial judge convey his opinion of the case. See
Hunter, 691 S.W.3d at 251; see also Avilez, 333 S.W.3d at 673.
We conclude that the trial court’s comments regarding witness testimony
were not improper. See Rodriguez, 2025 WL 1335328, at *5–6.
E. Trial Court Comments Regarding Defense Counsel
Bess argues that the trial judge was not neutral and detached when he made
“certain comments aimed at Defense Counsel.” Appellant’s Br. 24. Bess identified
14 three specific comments that he contends were aimed at his counsel. The first
challenged comment occurred during direct testimony of the arresting officer, who
testified that the complainant was “very upset . . . very shaken . . . tearful” when he
returned to the apartment after placing Bess in the back of the patrol car. The State
asked what the complainant told him, and Bess’s counsel objected on the grounds
of hearsay and the Confrontation Clause. The State responded that it would soon
play the video from the officer’s body worn camera, which recorded the
complainant’s statements. The State asserted that the complainant’s statements
would “come in through excited utterance.” Defense counsel then asked to
approach the bench, and the trial judge responded: “You don’t need to. I’ve got
good ears. The objection is overruled. Excited utterance exception. Overruled.
Counsel, let’s proceed.”
The second challenged comment occurred during direct testimony of the
complainant’s sister. She testified that her sister called her during the altercation
with Bess, and she could hear “what was going on in the background” at the
complainant’s apartment. The State asked the sister, “[W]hen you got a phone call
from Elisha [the complainant], what voices could you hear at the end of the line?”
The sister responded, “I could [sic] Kendrick Bess was—was cussing out my
sister. And what the most . . . .” Bess’s counsel interrupted the sister to object on
the grounds that her testimony was “not responsive to the question.” The trial
15 judge said: “Well, he asked her what she heard and she said she heard Kendrick
Bess cussing my sister and your objection is that’s not responsive. Think about it,
please. Objection is overruled.”
The third challenged comment occurred just before cross-examination of the
complainant, Elisha. After the State passed the witness, the trial judge said: “Ms.
Hawkins, [Defense Counsel] over here has some questions he’s going to ask you.
We have a system. I call it push and shove. He’s going to push. You’re going to
shove. Just try to listen to his questions and answer them directly. Okay?” Elisha
agreed, and Bess’s counsel conducted cross-examination.
In each of these three examples, the trial judge’s comments, may have been
colloquial, served the purpose of ordinary courtroom administration,1 or even
perhaps expressed impatience with defense counsel, but the comments neither
conveyed the judge’s opinion of the case to the jury nor made him an advocate in
the adversarial process. See Liteky, 510 U.S. at 555; Hunter, 691 S.W.3d at 251.
We conclude that the trial court’s comments regarding defense counsel were
not improper. See Rodriguez, 2025 WL 1335328, at *5–6.
1 The push-and-shove comment appears to be an admonition to the complainant to answer the questions directly. 16 ***
Having concluded that the trial judge’s comments were not improper, we
further conclude that the cumulative effect of these comments was also not
improper or a deprivation of due process. We overrule Bess’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Susanna Dokupil Justice
Panel consists of Justices Guerra, Caughey and Dokupil.
Do not publish. TEX. R. APP. P. 47.2(b).