Texas Courts of Appeals
Hayes v. State
No. 14-25-00375-CR 9/3/26
Issue:
Is an objection necessary to preserve a constitutional claim of judicial bias?
Holding:
No. “[F]or a claim of statutory judicial bias, the nature of the underlying right to an unbiased judge is too significant—due to its ability to erode the public’s faith in the judicial system—to be categorized as a Marin category-three right. … We believe the same reasoning is equally applicable to constitutional claims of judicial bias. A constitutional claim of judicial bias is based on the same underlying right: the right to be tried by an impartial judge. This right is too important to be waivable by inaction because it is a serious allegation that could harm the public’s perception of the judicial system as being fair and impartial. Furthermore, if a party believes that the trial court is displaying clear favoritism, the party may also believe there is no point in objecting because the trial court will simply deny any objection without fair consideration.” However, the Court concluded that the defendant had not established bias and upheld the conviction. Read opinion.
Concurrence (Jewell, J.):
The concurrence would have declined to answer the question about whether a judicial bias complaint can be raised without preserving error. “The answer to that question in this case is neither outcome determinative nor necessary to our disposition, given that we all agree that the present record fails to support [the defendant’s] judicial bias arguments. The court’s remarks on the matter, though sensible, are dicta and non-binding on future panels of this court.” Read concurrence.
Commentary:
The majority opinion here specifically finds that a constitutional claim of judicial bias relates to at least a Marin category-two right, which is waivable only and, thus, does not require a contemporaneous objection at trial to preserve error. The majority acknowledged that the Court of Criminal Appeals has not addressed the threshold preservation issue in this constitutional context. While it is possible that the CCA might be interested in doing so now, it is unlikely, since the majority opinion does not really signify a split among intermediate appellate courts and the opinion follows CCA precedent concerning a very similar issue (i.e., Proenza, which involved a claim of statutory judicial bias). Practically speaking, then, prosecutors should be aware of this decision and endeavor to assist trial judges in making sure the record clearly show the efforts by judges to treat both parties fairly if the defendant complains at trial (even without actually objecting) that the trial court is favoring the State.
Littleton v. State
No. 04-25-00444-CR 9/9/26
Issue:
In an indecency with a child prosecution, can the jury charge’s abstract portion define “knowingly” and the application paragraph list “intentionally and knowingly” together?
Holding:
No, but the error in this case was harmless. Indecency requires only the specific intent to arouse or gratify, not a knowing mental state. Judges “must tailor an offense’s culpable mental state to its conduct element, and a court errs when it does not limit the mental state to the appropriate element of conduct.” However, because the defendant failed to object, and after reviewing the charge, evidence, arguments of counsel, and record, the Court concluded that there was no indication the jury charge error confused the jury or caused actual harm. Read opinion.
Commentary:
Jury-charge errors are the most common type of error that occurs at trial. Reversal and remand for a new trial was avoided here because the appellate court concluded that the charge errors were not egregiously harmful, in light of the entirety of the record. However, this opinion provides a good reminder for all prosecutors that, while the trial court is technically responsible for the contents of the jury charge, it is imperative that prosecutors carefully review the charges in their cases to help judges catch these types of mistakes.
Attorney General Opinion Request
RQ-0657-KP 9/10/26
Issue:
Does the Axon TASER 10, which has several enhancements over prior versions (including a longer range and the ability to deploy up to 10 probes instead of four), qualify as a firearm under Penal Code §46.01(3)? Read opinion request.
Requested by:
Sean Teare, Harris County District Attorney