Ricardo Albert Deras v. The State of Texas--Appeal from 179th District Court of Harris County

MEMORANDUM OPINION

No. 04-03-00122-CR

Ricardo A. DERAS,

Appellant

v.

State of TEXAS,

Appellee

From the 179th Judicial District Court, Harris County, Texas

Trial Court No. 779159

Honorable J. Michael Wilkinson, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 17, 2004

AFFIRMED

Ricardo A. Deras appeals the 20-year sentence and $10,000 fine he received on his guilty plea conviction for aggravated sexual assault of a child. Finding no error, we affirm.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. Deras says the trial court committed fundamental error during the sentencing hearing by acting as an advocate for the State when questioning the complainant and the appellant in a manner that demonstrated the court's bias in favor of the State, rendering the proceeding constitutionally unfair. The State says there was no error, but that in any event Deras waived the complaint by voicing no objection when the trial court asked to examine the witnesses.

2. Since punishment was submitted to the trial court instead of a jury, the judge's own questions did not have the effect of unfairly prejudicing the fact finder. Cf. Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (judge's comments to jury tainted defendant's presumption of innocence and was fundamental error). Nor has it been shown that the judge's questions established that he was unfairly biased against Deras. Instead, it appears from the record that the questions were meant to clarify facts pertinent to sentencing and the judge appeared to maintain an impartial attitude. See Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. 1978) (permissible for trial court to question witnesses to clarify issues before court so long as court maintains impartial attitude).

3. Even if the court's questioning of the witnesses is assumed to be erroneous, no fundamental constitutional right was affected and an objection was required to preserve error. See Blue, 41 S.W.3d at 134. In the absence of objection, the error is waived.

The trial court's judgment is affirmed.

Paul W. Green, Justice

Do Not Publish