November 17, 2017

Court of Criminal Appeals of Texas

Proenza v. State

No. PD-1100-15                11/15/17


Are claims of improper judicial comments raised under Code of Criminal Procedure Art. 38.05 forfeitable rights under Marin?


No. Under Marin v. State, 851 S.W.2d 275, error-preservation rules are split into three categories: 1) absolute requirements and prohibitions, 2) rights of litigants that must be implemented unless expressly waived, and 3) rights of litigants that are to be implemented upon request. Category Three Marin rights are waived if not properly preserved at trial. Category One and Two Marin rights are “so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection” and are not waived even if not preserved at trial. CCP 38.05 creates a duty for the trial court to refrain from commenting on the weight of the evidence or its bearing on the case that cannot be forfeited by party inaction. The right to be tried in a proceeding devoid of improper judicial commentary is “at least a Category-Two, waiver-only right.” Read opinion. 

Concurrence (Newell, J.):

Compliance with Code of Criminal Procedure Art. 38.05 is fundamental to the proper functioning of the adjudicatory system, and a defendant is not required to object at trial to preserve the right to complain about a judge’s comments on appeal. However, the Court attempts to apply Marin v. State too strictly. Marin was meant to be a “cursory” examination of error preservation and was not intended to examine and place all rights into one of three categories. Read opinion.

Dissent (Keller, P.J.):

Preservation should be required for a complaint under Code of Criminal Procedure Art. 38.05. Requiring preservation is the general rule and there should be only limited exceptions under Marin. The statutory language of CCP Art. 38.05 does not prevent judicial-comment complaints from being forfeitable, and equity and policy favor requiring preservation to give trial judges the opportunity to address and cure complaints. Read opinion.


The contemporaneous objection requirement is an important safeguard in our justice system because it forces parties to actively engage in a proceeding rather than hope for a windfall while relying on an unrevealed flaw for a do-over if the result is not to their liking. This decision might be viewed as the Court’s retreat from a fairly disciplined approach to preservation of error over the last two decades. That said, the Court’s holding that a non-constitutional harmless error analysis applies to a court’s improper comment may serve as fair compensation. Otherwise, trial courts can seldom go wrong by limiting its remarks at trial to “granted, denied, sustained, overruled, move along, and the jury will remember the evidence.”

Texas Courts of Appeals

Elizondo v. State

Nos. 14-16-00871-CR to -00873-CR           11/14/17


Must a party preserve error for a complaint that the trial court considered evidence outside of the record?


Yes. There is no authority to support a claim that the trial court considering improper evidence violates a right so fundamental to the proper functioning of the adjudicatory process that it does not need to be preserved. The Court of Criminal Appeals has not decided whether a party must preserve error on an argument that the trial judge was not neutral. To the extent that this is an evidentiary complaint, preservation of error is required. In this case, the court presumed for the sake of argument that preservation was not required to reach the merits and concluded that the trial court did not, in fact, consider evidence outside the record. Read opinion.


The court held in the alternative that the record did not show the trial judge considered matters that were outside the record. The defendant in this case will certainly use the Proenza decision above to argue he was not required to preserve his claim by objection.

Texas Attorney General Opinions

KP-0173               11/14/17


May an attorney serving a county pursuant to a collection contract under Art. 103.0031 of the Code of Criminal Procedure collect delinquent restitution owed to a crime victim?


If a court serving the county orders a defendant to make restitution to a crime victim and payment is delinquent, a commissioners court may refer the matter to a private collections attorney under contract with the county pursuant to Art. 103.0031(a)(l)(A) of the Code of Criminal Procedure. Read opinion.


There will be no case summaries next week. Happy Thanksgiving!