Zachary Gentry v. The State of Texas--Appeal from County Court of Marion County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00237-CR

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ZACHARY GENTRY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court

Marion County, Texas

Trial Court No. 11735

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Zachary Gentry appeals from an order placing him on misdemeanor deferred adjudication community supervision for ninety days and assessing a $150.00 fine in accordance with a plea agreement. His appeal is from the denial of a pretrial motion to suppress evidence. Gentry contends the trial court erred by denying his motion to suppress because there was no basis for the arresting officer to stop and frisk him.

Gentry and a companion were walking down the side of a highway in Marion County. They were approached by Constable Jerry Dreesen and Deputy Sheriff Shawn Cox in response to reports that two men were "walking in and out of traffic or in and out of pastures and things north of Jefferson." Dreesen conducted a pat-down search of Gentry and found what he described as a switchblade pocketknife and a small black box containing marihuana. Dreesen arrested Gentry, who was tried in this case for possession of a prohibited weapon.

We are immediately confronted with an issue separate from Gentry's contentions that is dispositive of this case: whether the trial judge was qualified to preside in this particular case. At the hearing on the motion to suppress, the trial judge effectively short-circuited the proceedings by stating he had personal knowledge of the actions of Gentry and his cohort. The judge stated that he lived on the road in question, that he was one of the people who almost ran into these individuals, and that he was not sure he was not one of the persons who called Dreesen concerning them. Further, and of most consequence, the trial judge explicitly stated on two occasions that he was making his ruling based on his personal knowledge about the sequence of events.

Although Gentry's counsel suggested that the judge recuse himself because he might be a witness, no issue was clearly raised regarding this issue either at the hearing or on appeal. The initial hurdle, then, is whether this matter is one we should address in the absence of either a clear complaint at the trial court level or a complaint on appeal. For the reasons set out below, we believe we must do so.

In the middle of the State's closing argument at the suppression hearing, the trial judge interrupted:

You can stop. Because I'm going to be honest with you, I remember this day. I live on that road. This Motion is going to be denied because I'm one of them that almost hit them. I'm going to deny this Motion to Suppress. I'm not so sure that I wasn't one of them who called Officer Dreesen to be honest with you. I remember this day and I remember the situation. I'm going to deny the Defendant's Motion today; it's not going to be granted.

. . . .

Like I say, I've got firsthand knowledge of the situation . . . and I believe he has the right to do this [search the defendant].

. . . .

To be honest with you, my decision is based on what I saw that day.

A defendant's rights arise from distinct rules that generally fall into one of three categories: (1) absolute requirements and prohibitions; (2) rights which must be implemented by the system unless expressly waived; and (3) rights which are implemented only on request. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App.1993), overruled in part on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Absolute requirements and prohibitions, as well as rights which must be implemented unless waived, cannot be made subject to procedural default on appeal because, by definition, they are not forfeitable. Marin, 851 S.W.2d 279. Determining which category a right falls into will usually settle the question of whether a procedural default occurred, and therefore whether the issue was preserved for appeal. Id.

The deprivation of a defendant's right to a trial before an impartial judge is a "structural defect" in the trial mechanism itself. Arizona v. Fulminante, 499 U.S. 279, 309 10 (1991). Without the basic protection of an impartial judge, "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment can be regarded as fundamentally fair." Id. (quoting Rose v. Clark, 478 U.S. 570, 577 78 (1986)); see also Neder v. United States, 527 U.S. 1, 8 9 (1999).

We acknowledge that an accused may waive even constitutional rights. Saldano v. State, 70 S.W.3d 873, 891 (Tex. Crim. App. 2002) (en banc); Jenkins v. State, 912 S.W.2d 793, 815 (Tex. Crim. App. 1995) (op. on reh'g) (en banc). Nonetheless, Rule 103(d) of the Rules of Evidence authorizes us, in a criminal case, to "take notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." Tex. R. Evid. 103(d); King v. State, 174 S.W.3d 796, 819 (Tex. App. Corpus Christi 2005, pet. ref'd).

We conclude a defendant does not waive appellate review of the structural defect of his or her right to an impartial judge by failing to object. See Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004); Blue v. State, 41 S.W.3d 129, 132 33 (Tex. Crim. App. 2000) (Keasler, J., concurring at 138 39); Marin, 851 S.W.2d at 278.

Beyond the initial preservation of error issue, we are further confronted with unassigned error. In this case, we are not merely addressing possible error, but the type of error that is consistently described as absolutely fundamental in character. See Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994); Carroll v. State, 75 S.W.3d 633, 634 (Tex. App. Waco 2002, no pet.); Wade v. State, 31 S.W.3d 273, 275 (Tex. App. Houston [1st Dist.] 2000, pet. ref'd). // An appellate court may in its discretion address "unassigned" error, and because of the nature of this issue, in this instance we choose to do so. See Urias v. State, 155 S.W.3d 141, 144 (Tex. Crim. App. 2004). Fundamental error is one that may be presented for the first time on appeal. For example, former jeopardy is fundamental and may be raised at any time. See Muncy v. State, 505 S.W.2d 925 (Tex. Crim. App. 1974). Also, as presented in this case, an issue concerning the disqualification of a judge may not be waived by the parties, but may be presented on appeal even in the absence of an objection in the trial court. Gamez v. State, 737 S.W.2d 315, 318 (Tex. Crim. App. 1987). Indeed, there is long-standing authority holding that the question of disqualification of a judge (which involves his or her authority to act in a case) may be raised at any time on appeal or in a collateral attack on the judgment. In re Gonzalez, 115 S.W.3d 36 (Tex. App. San Antonio 2003, orig. proceeding).

The Texas Court of Criminal Appeals recently elaborated on the differences between structural errors and systemic requirements as those concepts have been used by courts in reviewing actions by the trial courts. Mendez, 138 S.W.3d at 339 43. Our analysis here adds an additional layer because we are required to decide whether the matter could properly be raised sua sponte which involves considerations from both of those concepts. The result of our analysis on the merits, however, is almost a foregone conclusion based on the analysis required to determine whether we could address the issue on its merits.

The bias, or lack of impartiality, of a trial judge may be a ground for judicial disqualification when it is of such a character as to deny the defendant due process. Kemp v. State, 846 S.W.2d 289 (Tex. Crim. App. 1992). An impartial trier of fact is one capable and willing to decide the case based solely on the evidence before it. See Smith v. Phillips, 455 U.S. 209, 217 (1982); Ruckman v. State, 109 S.W.3d 524, 527 (Tex. App. Tyler 2000, pet. ref'd).

This case contains one factor that is crucial to our review. Under these facts and this record, we need not examine evidence for implications of partiality, or assume partiality based on comments by the trial judge, or by ambiguous references to the events or even mere knowledge of the location and the facts surrounding the arrest. In this case, as we have quoted above, the trial judge stated clearly that he was making his determination and ruling based, not on the evidence adduced at the hearing, but on his personal knowledge of the event. To do so is error.

We therefore conclude that, under these facts, the trial judge was disqualified from acting in this case because of his stated inability to rule based solely on the evidence adduced at the trial. Thus, having found that the trial judge's action in basing his ruling not on the evidence, but on his personal knowledge, was error requiring disqualification, the actions taken by the disqualified jurist are void. //

Having reached this conclusion, we find it unnecessary to address Gentry's contentions. Accordingly, we reverse the judgment and remand this case to the trial court for further proceedings.

Donald R. Ross

Justice

Date Submitted: February 2, 2006

Date Decided: April 12, 2006

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