Texas Stamp


PD-1100-15 01/13/2016

  1. "Is there a common-law 'fundamental error' exception to preservation that exists outside of the framework of Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)?"
  2. "Is a complaint about a judge's comment on the evidence forfeited if not raised at trial?"
  3. "The trial judge's exchange with a witness neither tainted the defendant's presumption of innocence nor vitiated the jury's impartiality, and it was harmless under any standard."

Proenza was charged with injury to a child by failing to seek medical care. Proenza tried to establish through a doctor at the child's clinic that he could not have taken the child there because he is not a parent. The trial court questioned the doctor on this point and expressed skepticism at how strictly such policy was enforced. Neither party objected, and both were permitted additional questioning.

On appeal, Proenza complained for the first time that the trial court violated Tex. Code Crim. Proc. art. 38.05 by commenting on the evidence. The court of appeals interpreted this as a claim of fundamental error under Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality), concluded that it was, and found the error harmful.

The State argues that Proenza forfeited his claim and, regardless, suffered no harm. First, Blue has no precedential value and the Court of Criminal Appeals has subsequently held that questions of fundamental error are now considered within the three-tiered preservation framework of Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993). A complaint about a judge's comment on the evidence should be forfeitable under Marin. Second, any improper comment was harmless because the evidence showed that Proenza could have taken the child to an emergency room and, had he brought the child to the clinic, someone there would have called for an ambulance.

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