DERRICK HAYES v. THE STATE OF TEXAS (2026)

CONCURRING OPINION

I agree with the court's judgment and join the majority opinion except part II.A., in which the court offers its view on the subject of whether a judicial bias complaint such as appellant's qualifies as an issue that may be raised for the first time on appeal absent preservation under Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993). 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 appellant's judicial bias arguments. The court's remarks on the matter, though sensible, are dicta and non-binding on future panels of this court. See Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (dictum is not binding precedent under stare decisis).¹ Advisory opinions lie beyond the jurisdiction conferred on our court by Texas Constitution article II, section 1. See Matthews v. Kountze Ind. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016). It is sufficient for us to presume that appellant may assert the issue in our court without having first presented it below. I thus agree with those courts, including our Court of Criminal Appeals, that have deferred the preservation issue until an appropriate occasion arises when the record presents no supportable claim of judicial bias. See Brumit v. State, 206 S.W.3d 639, 644-45 (Tex. Crim. App. 2006); see also Moreland v. State, No. 12-20-00200-CR, 2021 WL 3265545, at *3 (Tex. App.—Tyler July 30, 2021, no pet.) (mem. op., not designated for publication) (assuming without deciding that a judicial bias claim could be raised for the first time on appeal).

FOOTNOTES

1.   Dicta is language in an opinion that is unnecessary to the disposition of the case. State v. Brabson, 976 S.W.2d 182, 186 (Tex. Crim. App. 1998); Edwards, 9 S.W.3d at 314.

Kevin Jewell Justice