Affirmed and Opinion Filed June 13, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-01019-CR
KERNECHA TAMIA HUNTER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause No. F22-39247
OPINION Before Justices Smith, Miskel, and Breedlove Opinion by Justice Miskel Kernecha Tamia Hunter appeals the trial court’s judgment convicting her of
driving while intoxicated with a child passenger younger than 15 years of age. See
TEX. PENAL CODE ANN. § 49.045. The trial judge found her guilty and assessed her
punishment at two years of imprisonment. Hunter raises four issues on appeal
arguing that: (1) the trial judge was biased; (2) the trial court erred when it violated
her common law right to allocution; (3) her sentence violates the Eighth
Amendment’s prohibition against cruel and unusual punishment; and (4) her
punishment violates her rights under the Texas Penal Code. We conclude Hunter has not shown the trial judge was biased and has failed to preserve her other issues
for appellate review. We affirm the trial court’s judgment.
I. Procedural Background
Hunter was indicted for the offense of driving while intoxicated with a child
passenger younger than 15 years of age. The indictment originally alleged two prior
felony convictions. However, the State filed a motion to strike the enhancements,
which the trial court granted, resulting in the charged offense’s being a state jail
felony. Pursuant to a plea agreement, Hunter pleaded guilty to driving while
intoxicated with a child passenger younger than 15 years of age. Hunter also signed
a written judicial confession, which was admitted into evidence.
During the hearing on punishment, both the State and Hunter requested that
Hunter be placed on community supervision. The trial court found Hunter guilty
and assessed her punishment at two years of confinement in state jail. Hunter filed
a motion for new trial, asserting only generally that “the verdict is contrary to the
law and evidence.”
II. Due Process Right to a Neutral Arbiter Was Not Violated
In issue one, Hunter argues the trial judge violated her due process right to a
neutral and detached arbiter when the trial judge cross-examined her. Although she
did not object, she claims that no objection is required to preserve for appellate
review the issue of whether the trial judge acted as an adversarial advocate. The
State responds that Hunter cannot show that the trial court violated her due process
–2– rights when the trial judge asked permissible questions on relevant matters that were
superficially addressed during both direct and cross-examination.
A. Standard of Review
To reverse a judgment on the ground of improper conduct or comments of the
trial judge, an appellate court must be presented with proof (1) that judicial
impropriety was in fact committed, and (2) of probable prejudice to the complaining
party. Anguiano v. State, No. 05-21-00685-CR, 2022 WL 2914024, at *3 (Tex.
App.—Dallas July 25, 2022, no pet.) (mem. op., not designated for publication)
(citing Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006)). Judicial
remarks made during the course of a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge. Gaal v. State, 332 S.W.3d 448, 454 (Tex. Crim. App. 2011);
Anguiano, 2022 WL 2914024, at *3.
Judicial remarks may suggest improper bias if they reveal an opinion deriving
from an extrajudicial source, but when no extrajudicial source is alleged, such
remarks will constitute grounds for reversal only if they reveal such a high degree
of favoritism or antagonism as to make a fair judgment impossible. Anguiano, 2022
WL 2914024, at *3; see also Gaal, 332 S.W.3d at 455 (discussing reasons requiring
recusal). To constitute bias clearly shown on the record, the deep-seated antagonism
must be apparent from the judicial remarks themselves without “interpretation or
–3– expansion” by an appellate court. Anguiano, 2022 WL 2914024, at *3 (citing Gaal,
332 S.W.3d at 457).
Absent a clear showing of bias, a trial judge’s actions will be presumed to
have been correct. Brumit, 206 S.W.3d at 645; see also Anguiano, 2022 WL
2914024, at *3.
B. Applicable Law
A defendant has a right to an absolutely impartial judge at both the guilt–
innocence and punishment phases of trial. Anguiano, 2022 WL 2914024, at *2. In
the Texas adversarial system, the judge is a neutral arbiter between advocates; “he
is not involved in the fray.” Brown v. State, 122 S.W.3d 794, 797 (Tex. Crim. App.
2003); Anguiano, 2022 WL 2914024, at *3.
Due process requires a neutral and detached judge. Brumit, 206 S.W.3d at
645; see also Anguiano, 2022 WL 2914024, at *3. However, a neutral and detached
hearing officer is not synonymous with a silent observer. Anguiano, 2022 WL
2914024, at *3. A trial judge is permitted to directly question witnesses, including
a defendant, when seeking information to clarify a point. Seely v. State, No. 05-17-
01149-CR, 2018 WL 5118647, at *1 (Tex. App.—Dallas Oct. 22, 2018, pet. ref’d)
(mem. op., not designated for publication) (citing Brewer v. State, 572 S.W.2d 719,
721 (Tex. Crim. App. 1978)). In doing so, the trial judge must not go beyond
permissible questioning by (1) conveying her opinion of the case to the jury and
ultimately influencing its decision, or (2) in the zeal of active participation,
–4– becoming an advocate in the adversarial process and losing the neutral and detached
role required for the fact-finder and the judge. Id. In a bench trial, the trial judge
has more latitude than in a jury trial to question witnesses to obtain information to
assist in the fact-finding process. Id. Although not favored, even extensive and
adversarial questioning by a trial judge is permissible in a bench trial as long as the
questions are relevant to the issues before the court and the court’s impartiality is
not affected. Id.
C. The Record Does Not Clearly Show that the Trial Judge Was Biased
As a preliminary matter, we note that Hunter concedes that she did not object
to the trial judge’s alleged advocacy. However, she argues that pursuant to Proenza
v. State, 541 S.W.3d 786, 788–89 (Tex. Crim. App. 2017), she did not need to object
to preserve her complaint on appeal. Proenza involved a trial judge’s making
improper comments on the weight of the evidence in front of a jury in violation of
article 38.05 of the Texas Code of Criminal Procedure. Id. at 790. The current case
does not involve an alleged violation of article 38.05; rather it involves Hunter’s
claim that the trial judge abandoned her neutral role when, during the hearing on
punishment before the trial court, the trial judge questioned Hunter about her bond
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Affirmed and Opinion Filed June 13, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-01019-CR
KERNECHA TAMIA HUNTER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause No. F22-39247
OPINION Before Justices Smith, Miskel, and Breedlove Opinion by Justice Miskel Kernecha Tamia Hunter appeals the trial court’s judgment convicting her of
driving while intoxicated with a child passenger younger than 15 years of age. See
TEX. PENAL CODE ANN. § 49.045. The trial judge found her guilty and assessed her
punishment at two years of imprisonment. Hunter raises four issues on appeal
arguing that: (1) the trial judge was biased; (2) the trial court erred when it violated
her common law right to allocution; (3) her sentence violates the Eighth
Amendment’s prohibition against cruel and unusual punishment; and (4) her
punishment violates her rights under the Texas Penal Code. We conclude Hunter has not shown the trial judge was biased and has failed to preserve her other issues
for appellate review. We affirm the trial court’s judgment.
I. Procedural Background
Hunter was indicted for the offense of driving while intoxicated with a child
passenger younger than 15 years of age. The indictment originally alleged two prior
felony convictions. However, the State filed a motion to strike the enhancements,
which the trial court granted, resulting in the charged offense’s being a state jail
felony. Pursuant to a plea agreement, Hunter pleaded guilty to driving while
intoxicated with a child passenger younger than 15 years of age. Hunter also signed
a written judicial confession, which was admitted into evidence.
During the hearing on punishment, both the State and Hunter requested that
Hunter be placed on community supervision. The trial court found Hunter guilty
and assessed her punishment at two years of confinement in state jail. Hunter filed
a motion for new trial, asserting only generally that “the verdict is contrary to the
law and evidence.”
II. Due Process Right to a Neutral Arbiter Was Not Violated
In issue one, Hunter argues the trial judge violated her due process right to a
neutral and detached arbiter when the trial judge cross-examined her. Although she
did not object, she claims that no objection is required to preserve for appellate
review the issue of whether the trial judge acted as an adversarial advocate. The
State responds that Hunter cannot show that the trial court violated her due process
–2– rights when the trial judge asked permissible questions on relevant matters that were
superficially addressed during both direct and cross-examination.
A. Standard of Review
To reverse a judgment on the ground of improper conduct or comments of the
trial judge, an appellate court must be presented with proof (1) that judicial
impropriety was in fact committed, and (2) of probable prejudice to the complaining
party. Anguiano v. State, No. 05-21-00685-CR, 2022 WL 2914024, at *3 (Tex.
App.—Dallas July 25, 2022, no pet.) (mem. op., not designated for publication)
(citing Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006)). Judicial
remarks made during the course of a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge. Gaal v. State, 332 S.W.3d 448, 454 (Tex. Crim. App. 2011);
Anguiano, 2022 WL 2914024, at *3.
Judicial remarks may suggest improper bias if they reveal an opinion deriving
from an extrajudicial source, but when no extrajudicial source is alleged, such
remarks will constitute grounds for reversal only if they reveal such a high degree
of favoritism or antagonism as to make a fair judgment impossible. Anguiano, 2022
WL 2914024, at *3; see also Gaal, 332 S.W.3d at 455 (discussing reasons requiring
recusal). To constitute bias clearly shown on the record, the deep-seated antagonism
must be apparent from the judicial remarks themselves without “interpretation or
–3– expansion” by an appellate court. Anguiano, 2022 WL 2914024, at *3 (citing Gaal,
332 S.W.3d at 457).
Absent a clear showing of bias, a trial judge’s actions will be presumed to
have been correct. Brumit, 206 S.W.3d at 645; see also Anguiano, 2022 WL
2914024, at *3.
B. Applicable Law
A defendant has a right to an absolutely impartial judge at both the guilt–
innocence and punishment phases of trial. Anguiano, 2022 WL 2914024, at *2. In
the Texas adversarial system, the judge is a neutral arbiter between advocates; “he
is not involved in the fray.” Brown v. State, 122 S.W.3d 794, 797 (Tex. Crim. App.
2003); Anguiano, 2022 WL 2914024, at *3.
Due process requires a neutral and detached judge. Brumit, 206 S.W.3d at
645; see also Anguiano, 2022 WL 2914024, at *3. However, a neutral and detached
hearing officer is not synonymous with a silent observer. Anguiano, 2022 WL
2914024, at *3. A trial judge is permitted to directly question witnesses, including
a defendant, when seeking information to clarify a point. Seely v. State, No. 05-17-
01149-CR, 2018 WL 5118647, at *1 (Tex. App.—Dallas Oct. 22, 2018, pet. ref’d)
(mem. op., not designated for publication) (citing Brewer v. State, 572 S.W.2d 719,
721 (Tex. Crim. App. 1978)). In doing so, the trial judge must not go beyond
permissible questioning by (1) conveying her opinion of the case to the jury and
ultimately influencing its decision, or (2) in the zeal of active participation,
–4– becoming an advocate in the adversarial process and losing the neutral and detached
role required for the fact-finder and the judge. Id. In a bench trial, the trial judge
has more latitude than in a jury trial to question witnesses to obtain information to
assist in the fact-finding process. Id. Although not favored, even extensive and
adversarial questioning by a trial judge is permissible in a bench trial as long as the
questions are relevant to the issues before the court and the court’s impartiality is
not affected. Id.
C. The Record Does Not Clearly Show that the Trial Judge Was Biased
As a preliminary matter, we note that Hunter concedes that she did not object
to the trial judge’s alleged advocacy. However, she argues that pursuant to Proenza
v. State, 541 S.W.3d 786, 788–89 (Tex. Crim. App. 2017), she did not need to object
to preserve her complaint on appeal. Proenza involved a trial judge’s making
improper comments on the weight of the evidence in front of a jury in violation of
article 38.05 of the Texas Code of Criminal Procedure. Id. at 790. The current case
does not involve an alleged violation of article 38.05; rather it involves Hunter’s
claim that the trial judge abandoned her neutral role when, during the hearing on
punishment before the trial court, the trial judge questioned Hunter about her bond
violations and her three prior times on community supervision that were
unsuccessful.
Nevertheless, if we assume, without deciding, that Hunter was not required to
object to the trial judge’s questioning in order to raise her complaint on appeal, we
–5– resolve Hunter’s complaint against her.1 The trial in this case was to the bench, so
there was no danger of the trial judge’s questions influencing a jury. See Seely, 2018
WL 5118647, at *1. As a result, we look to whether, in the zeal of active
participation, the trial judge became an advocate in the adversarial process and lost
the neutral, detached role required for a judge. See id.
The record shows that, during the hearing on punishment, after the State and
defense counsel rested, the trial judge questioned Hunter about her drug and alcohol
use during community supervision while the case was pending and her unsuccessful
prior terms of community supervision. The questions were relevant because both
the State and Hunter had requested that the trial judge place Hunter on community
supervision again. As a result, the trial judge’s questions sought clarification of
matters already raised by both the State and defense counsel and directly related to
the assessment of Hunter’s punishment. After reviewing the entire record, we
conclude the trial judge’s questioning does not show actual bias or reveal such a high
degree of favoritism or antagonism as to make a fair judgment impossible.
1 We note that with some exceptions, a defendant in a criminal case forfeits error, even constitutional error, when she fails to make a timely objection or fails to request proper relief. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). In Marin, the Texas Court of Criminal Appeals recognized two “relatively small” categories of errors—violations of “rights which are waivable only” and denials of “absolute systemic requirements”—that may be addressed on appeal regardless of whether an objection was made in the trial court. Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002). The Texas Court of Criminal Appeals has recognized that certain restraints on the comments of a judge fall within the category of absolute rights. See id. at 888–89 n.72 (citing Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) and noting it could not agree on the basis of this requirement as four judges held that the trial judge’s comments tainted the presumption of innocence and were fundamental error of constitutional dimension and a fifth judge held that the trial judge’s comments violated the right to an impartial judge). –6– We decide issue one against Hunter.
III. Remaining Issues Were Not Preserved
In issues two through four, Hunter argues (2) the trial court erred when it
violated her common law right to allocution; (3) her sentence violates the Eighth
Amendment’s prohibition against cruel and unusual punishment; and (4) her
punishment violates her rights under the Texas Penal Code. The State responds that
Hunter failed to preserve these issues for appellate review.
A. Applicable Law
To preserve error for appellate review, a defendant must make her complaint
to the trial court by a timely request, objection, or motion that states the grounds for
the ruling sought with sufficient specificity to make the trial court aware of the
complaint. TEX. R. APP. P. 33.1(a)(1)(A). With some exceptions, a defendant in a
criminal case forfeits error, even constitutional error, when she fails to make a timely
objection or fails to request proper relief. See Marin v. State, 851 S.W.2d 275, 279
(Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d
262, 264 (Tex. Crim. App. 1997); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim.
App. 1986).
B. Common-Law Right of Allocution
In issue two, Hunter argues the trial court erred when it violated her common
law right to allocution. She concedes that the trial court complied with Texas Code
of Criminal Procedure article 42.07 but claims the trial judge did not inquire whether
–7– she wished to exercise her common law right to allocution or whether she had
anything she wished to assert beyond what is encompassed by article 42.07. As a
result, Hunter maintains that she should receive a new hearing on punishment. The
State responds that Hunter did not preserve her argument for appellate review.
The term “allocution” refers to a criminal defendant’s opportunity to present
his personal plea to the court in mitigation of punishment before sentence is imposed.
McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974) (op. on reh’g);
see also Albiar v. State, No. 05-22-00558-CR, 2023 WL 5814273, at *1 (Tex.
App.—Dallas Sept. 8, 2023, no pet.) (mem. op., not designated for publication). The
statutory right to allocution requires that the defendant be asked, before sentence is
pronounced, “whether he has anything to say why the sentence should not be
pronounced against him.” TEX. CODE CRIM. PROC. ANN. art. 42.07; see also Albiar,
2023 WL 5814273, at *1.
To complain on appeal of the denial of the right of allocution—regardless of
whether it is statutory or one claimed under the common law—a defendant must
timely object. Albiar, 2023 WL 5814273, at *2. This Court has repeatedly held that
a defendant who fails to timely object to the denial of her right of allocution does
not preserve the complaint for appeal. Id. (listing several cases in support of this
proposition).
The record shows that after pronouncing Hunter’s sentence, the trial judge
asked whether there was any reason why her sentence should not be imposed and
–8– defense counsel answered, “[T]here is no legal reason why sentence should not be
imposed.” Hunter did not raise any objection concerning the common law right of
allocution. Accordingly, we conclude that Hunter failed to preserve issue two for
appellate review. 2 See TEX. R. APP. P. 33.1.
We decide issue two against Hunter without regard to its merit.
C. Eighth Amendment Protection Against Cruel and Unusual Punishment
In issue three, Hunter argues that her sentence violates the Eighth
Amendment’s prohibition against cruel and unusual punishment because her
sentence is grossly disproportionate to her offense. She claims that, although driving
while intoxicated is a serious offense, no one was injured, and she points to the
State’s argument that she needed help so an inpatient treatment program was more
likely to give her the tools to be successful as a mother and a citizen. The State
responds that Hunter did not preserve her argument for appellate review.
To preserve a complaint about an allegedly disproportionate or cruel and
unusual punishment for appeal, a defendant must make her complaint to the trial
court by a timely request, objection, or motion that states the grounds for the ruling
sought with sufficient specificity to make the trial court aware of the complaint. See
TEX. R. APP. P. 33.1(a)(1)(A); Williams v. State, No. 05-20-00593-CR, 2021 WL
2 We express no opinion as to whether a common-law right of allocution exists in Texas. In Decker v. State, No. 15-18-01259-CR, 2020 WL 614100 (Tex. App.—Dallas Feb. 10, 2020, no pet.) (mem. op., not designated for publication), this Court discussed the history of allocution rights in Texas. Decker stated: “Following the enactment of code of criminal procedure article 42.07, the questions of whether the statute encompassed the same scope as the former common-law practice, or, if not, supplanted any potential broader reach of the common-law right remained unanswered.” Id. at *4. –9– 3782080, at *3 (Tex. App.—Dallas Aug. 26, 2021, no pet.) (mem. op., not
designated for publication).
The record shows that Hunter’s punishment was assessed at two years of
confinement in state jail, which was within the range of punishment for the charged
offense. See PENAL §§ 12.35, 49.045(b). It also shows that she did not object to her
punishment on the grounds that it violated the Eighth Amendment’s prohibition
against cruel and unusual punishment because her sentence was grossly
disproportionate to her offense. Nor did she argue this in her motion for new trial.
Accordingly, we conclude that she failed to preserve this argument for appellate
review.
We decide issue three against Hunter without regard to its merit.
D. Objectives of the Texas Penal Code
In issue four, Hunter argues that her punishment violates her rights under the
Texas Penal Code. The State responds that Hunter did not preserve her argument
for appellate review.
As a general rule, an appellant may not assert error pertaining to her sentence
or punishment where she failed to object or otherwise raise such error in the trial
court. Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); see also
Albiar, 2023 WL 5814273, at *2. This Court has consistently rejected arguments
concerning sentences that allegedly contravene the objectives of the Texas Penal
–10– Code when no such argument was raised in the trial court. Albiar, 2023 WL
5814273, at *2 (listing several cases in support of this proposition).
Again, the record shows that Hunter’s punishment was assessed at two years
of confinement in state jail, which was within the range of punishment for the
charged offense. See PENAL §§ 12.35, 49.045(b). It also shows that she did not
object to her punishment on the grounds that it violated her rights under the Texas
Penal Code. Nor did she argue that her punishment failed to achieve what she claims
are the objectives of the Texas Penal Code in her motion for new trial. Accordingly,
we conclude that she failed to preserve this argument for appellate review.
We decide issue four against Hunter without regard to its merit.
IV. Conclusion
Hunter has not shown that the trial judge was biased. Also, she failed to
preserve her other issues for appellate review.
We affirm the trial court’s judgment.
/Emily A. Miskel/ EMILY A. MISKEL Publish JUSTICE TEX. R. APP. P. 47
231019F.P05
–11– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KERNECHA TAMIA HUNTER, On Appeal from the 282nd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F22-39247. No. 05-23-01019-CR V. Opinion delivered by Justice Miskel. Justices Smith and Breedlove THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 13, 2024
–12–