DERRICK HAYES v. THE STATE OF TEXAS (2026)

MAJORITY OPINION

Appellant Derrick Hayes was convicted of capital murder for killing his brother and grandmother in the same criminal transaction. See Tex. Penal Code Ann. § 19.03(7). In a single issue on appeal, appellant argues he was deprived of due process because of the trial court's bias and partiality. Because appellant failed to meet the high burden required to establish judicial bias, we affirm.

I. BACKGROUND

The underlying facts of this case are not disputed or relevant to this appeal. Appellant was indicted for murdering his fifteen-year-old brother and his grandmother, with a firearm, in the same criminal transaction. The jury assessed punishment at life in prison without parole. This appeal followed.

II. JUDICIAL BIAS

In his sole issue, appellant contends that his right to due process and a fair and impartial judge was violated due to the trial court's overt bias and partiality towards the State. Even though he made no objections to the trial court on the basis of judicial bias, he argues that he can raise this issue for the first time on appeal. In response, the State argues appellant failed to preserve his constitutional claim; alternatively, the State argues that the trial court treated both sides fairly and that the trial court did not demonstrate partiality or bias.

A. A constitutional claim of judicial bias is at least a Marin category-two right that may be raised for the first time on appeal

Because it is undisputed that appellant did not preserve his judicial bias claim in any manner, whether we can even address appellant's issue depends on whether the claim is a Marin category-one, category-two, or category-three claim:

Rule 33.1 of the Texas Rules of Appellate Procedure provides that a contemporaneous objection must be made to preserve error for review on appeal. This Rule, however, only applies to forfeitable rights known as category-three Marin rights. Rights and requirements, in terms of error preservation, are classified, pursuant to Marin, as: (1) absolute requirements and prohibitions that can neither be forfeited or waived; (2) rights of litigants which must be implemented unless expressly waived; and (3) rights of litigants which are to be implemented upon request. Category-two waivable only rights are those rights understood to be “so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection” such that the record must reflect that they have been “plainly, freely, and intelligently” waived a trial. Category-two rights “must be implemented by the system unless expressly waived.” A claim that a waivable only right was violated can be raised for the first time on appeal. Error preservation requirements turn on the nature of the right allegedly infringed.

Tates v. State, 721 S.W.3d 268, 275–76 (Tex. Crim. App. 2025) (quoting Proenza v. State, 541 S.W.3d 786, 792 (Tex. Crim. App. 2017) and Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993)). If appellant's claim falls into category one or two, appellant can raise the issue for the first time on appeal; however, if the claim is a category-three right, appellant not preserved his claim and thus cannot raise the issue for the first time on appeal. See Tates, 721 S.W.3d at 275–76.

As both parties have acknowledged in their briefs, the Court of Criminal Appeals has not specifically addressed whether an objection is necessary to preserve a constitutional claim of judicial bias. See Brumit v. State, 206 S.W.3d 639, 644–45 (Tex. Crim. App. 2006) (“We need not decide today whether an objection below is required to preserve an error [of judicial bias] on appeal because the record here does not reflect partiality of the trial court[.]”). And when presented with this question, other courts of appeal have defaulted to assuming without deciding that the issue could be raised on appeal for the first time instead of addressing whether preservation was actually required. See, e.g., Debord v. State, No. 13-21-00280-CR, 2023 WL 8642236, at *21 (Tex. App.—Corpus Christi–Edinburg Dec. 14, 2023, pet. ref'd) (mem. op., not designated for publication) (“The parties have failed to address how a claim of judicial bias fits within the Marin framework, and as far as we know, the Texas Court of Criminal Appeals has yet to reach this question․ Because we do not have the benefit of the parties' briefing on this issue, and the answer to the question is not outcome determinative, we assume without deciding that [appellant's] complaint is properly before us.”); Decker v. State, No. 05-18-01259-CR, 2020 WL 614100, at *2 (Tex. App.—Dallas Feb. 10, 2020, no pet.) (mem. op., not designated for publication) (“In this case, we need not determine whether the alleged error was fundamental because, after reviewing the record, we find no signs of relevant bias or partiality.”).

However, we find Proenza v. State, 541 S.W.3d 786, 799 (Tex. Crim. App. 2017) to be instructive. Even though Proenza does not address constitutional claims of judicial bias, it addresses claims of a very similar nature: statutory claims of judicial bias. In Proenza, the claim at issue was made under Article 38.05 of the Texas Code of Criminal Procedure, which forbids a trial court from commenting on the weight of the evidence. See id. The Proenza court concluded that such a claim is a Marin category-two right. See id.; Tex. Code Crim. Pro. Ann. art. 38.05. In reaching this conclusion, the court made the following observations regarding why it is impractical to require a party to raise an objection of judicial partiality to the very same trial court the party is alleging to be biased:

But when the trial judge's impartiality is the very thing that is brought into question, Marin's typical justification for requiring contemporaneous objection loses some of its potency. When a litigant perceives a violation of Article 38.05, it is not a foregone conclusion that his silence indicates a relinquishment of his rights thereunder. Silence may just as fairly indicate a litigant's calculation that, if the trial judge is indeed partial to the opposing side in her evidentiary commentary, she will likewise display partiality in ruling upon the Article 38.05 objection itself. An objection under these circumstances would be futile at best, and at worst could reinforce to the jury that the trial judge stands solidly in the corner of the opponent․

․ When a litigant contends that the trial judge has shirked her duty by openly “convey[ing] to the jury [her] opinion of the case,” the litigant has necessarily alleged that an alarming perversion of this role has taken place. And because we have said that “[j]urors are prone to seize with alacrity upon any conduct or language of the trial judge,” we believe such an allegation to be sufficiently weighty as to merit appellate review even in the absence of a partisan objection at trial. As we said in Grado v. State, “[a] contrary conclusion has the potential of shaking the public's perception of the fairness of our judicial system and breeding suspicion of the fairness and accuracy of judicial proceedings. The nature of this right is too significant to the judicial system to conclude that it is extinguished by mere inaction.”

Proenza, 541 S.W.3d at 799–800 (quoting Tex. Code Crim. Pro. Ann. art. 38.05; Lagrone v. State, 84 Tex. Crim. 609, 209 S.W. 411, 415 (1919); and Grado v. State, 445 S.W.3d 736, 741 (Tex. Crim. App. 2014)).

In other words, for 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. See Proenza, 541 S.W.3d at 799–800. 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. See id.

Applying the reasoning of Proenza and Grado, we conclude that a constitutional complaint of judicial bias and partiality is at least a category-two Marin claim. Therefore, appellant did not need to object below in order to raise this issue on appeal. Having reached this conclusion, we now address whether appellant has passed the high bar required to demonstrate judicial bias.

B. Standard of review and applicable law

“Due process requires a neutral and detached hearing body or officer. Absent a clear showing of bias, a trial court's actions will be presumed to have been correct.” Brumit, 206 S.W.3d at 645 (internal citation omitted). When a claim of judicial bias is raised, we review the entire record to determine if it shows the judge's bias or prejudice denied the defendant due process. See Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). “Judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id. And “judicial rulings alone almost never constitute a valid basis” for a claim of judicial bias. Liteky v. United States, 510 U.S. 540, 555 (1994). Instead, the United States Supreme Court used the following examples to better illustrate bias and prejudice:

Not all unfavorable disposition towards an individual (or his case) is properly described by those terms. One would not say, for example, that world opinion is biased or prejudiced against Adolf Hitler. The words connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant's prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant's prior criminal activities that he will vote guilty regardless of the facts).

Id. at 550. Stated differently, a trial court's actions generally do not reveal bias or prejudice unless they are of such severity that they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Id. 555.

“The denial of an impartial judge is structural error for which no harm analysis is necessary.” Tovar v. State, 619 S.W.3d 783, 792 (Tex. App.—San Antonio 2020, pet. ref'd).

C. Analysis

Appellant complains of numerous instances that allegedly demonstrate the trial judge's bias and favoritism. These complaints fall into two broad categories: (1) rulings on evidentiary objections; and (2) unsolicited interjections made by the trial court.¹

1. Evidentiary objections

Appellant alleges that several of the trial court's evidentiary rulings conveyed clear favoritism, including the following:

[Appellant]: Objection, leading.

[State]: Did you continue to look out for that particular—

[Appellant]: Judge, forgive me.

[Trial Court]: I was having a conversation. I apologize.

[Appellant]: I apologize, Judge. I just—

[Trial Court]: What's your objection, sir?

[Appellant]: It was leading.

[Trial Court]: Well, I don't know if it was or not; but I'll take a chance and overrule it. But don't lead your witness.

This ruling does not display clear favoritism. Because the trial court did not hear the actual questioning, the trial court might have reasonably concluded that it was better for the flow of trial to allow the State continue. However, the trial court still warned the State to not lead the witness. This is not too dissimilar to Dockstader where we held that the following comment did not display favoritism: “I told you that I have made my ruling and that if I am incorrect, you got me [on appeal].” Dockstader, 233 S.W.3d at 108. The trial court's comment here that “I'll take a chance and overrule it” is essentially the same as telling appellant that if the trial court is wrong that appellant can appeal.

Appellant also complains the trial court showed favoritism by allowing the State to object but not allowing him to finish making his objections. However, appellant's argument ignores the numerous times throughout the record where the trial court allowed appellant to fully make and explain his objections. As a specific example of the alleged bias, appellant highlights a short conversation in which the trial court told appellant's attorneys to sit down without being able to explain their objection. However, appellant only recounted the last four lines of the following conversation. The full context of what preceded those four lines—all outside the jury's presence—paints a better picture of what actually happened:

[Trial Court]: It's not the actual video but a video of the video. I have a problem with that.

[State]: It is the video. It's just—

[Trial Court]: But it's not the video. It's on her phone.

[State]: But its accurate as to what ․ she said.

[Trial Court]: No, ma'am. You didn't tell me that either. I would have asked you more questions at the time. All you said was it's a different time/date; and I said that goes to the weight, not the admissibility. I am not going to admit a video of a video on an interested party's/complainant's phone. I'm not going to do it.

․

[State]: I didn't spot that issue, but it's still a video that accurately depicts—

[Trial Court]: I don't like surprises. And my answer is no. I may change my mind; but right now, no.

[Appellant]: Can we instruct the jury to disregard the last comment?

․

[State]: It still—

[Trial Court]: Excuse me. I didn't ask for your comment either. Good grief, Charlie Brown. That's in the Code of Criminal Procedure. No, not admitting it right now. Okay? ․ And, no, I'm not instructing the jury to disregard anything. Okay?

[Appellant]: Judge, could we—

[State]: No.

[Appellant]: —just—

[Trial Court]: No. Have a seat.

This interaction does not demonstrate bias. If anything, this conversation suggests the trial court is just as aggravated, if not more so, with the State than with appellant. The trial court did not allow the State to continue objecting and instead declared that it was not admitting the exhibit at that time. Having also made clear that it was not instructing the jury to disregard, the trial court indicated it was not having any further discussion and wanted to resume with trial. The trial court's impatience with the number of objections and its desire to continue trial without unnecessary interruptions is demonstrated in another evidentiary ruling:

[Appellant]: Can I say now objection since he blurted the hearsay?

[Trial Court]: You've already objected to it and I overruled you and I told him to answer.

[Appellant]: Thank you, Judge.

[Trial Court]: We're spending way too much time doing this. Y'all know the rules.

Therefore, we conclude that the trial court's evidentiary rulings do not demonstrate clear bias.

2. Unsolicited interjections

Appellant's second category of complaints of judicial bias encompasses numerous unsolicited interjections by the trial court, either to allegedly assist the State or chastise appellant. But the trial court is allowed to ask the witnesses questions and be involved with witness examination for the purpose of “clarifying an issue before the court[,]” as long as the trial court “maintain[s] an impartial attitude” in doing so. Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. 1978). The trial court has wide discretion in exerting control over “the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.” Tex. R. Evid. 611(a).

Appellant points to the following comment made by the trial court as an example of the trial court improperly assisting the State:

That's sustained. I think he answered it. I'm not sure. Y'all are all over the place. She asked you a question about some excited — I'm going to use the legal term — utterance that a person made at the scene, and I don't know if you answered that question or not. That's the question she's asking you, what the lady said.

First, it is worth noting that the trial court sustained appellant's asked-and-answered objection, which further contradicts appellant's allegation above that the trial court did not allow him to make objections. This comment also once again demonstrates the trial court's frustration with the State, not just appellant. The trial court was simply clarifying which question the witness should answer. The trial court did not indicate any sort of partiality towards the State or appellant.

Later at trial, the trial court sua sponte gave appellant the following admonishment, which appellant complains is demonstrative of bias:

[Witness]: Sorry. I didn't understand the question.

[Appellant]: Okay. I apologize. Let me clarify. All of us in a particular — you know, in our homes, we have air-conditioning. We have a thermostat, and we set it at a particular temperature. And then the hope is that the thermostat would regulate the temperature to try to keep it as close —

[Trial Court]: Well, thank you for that little piece of evidence; but let's ask a question.

But this comment does not clearly indicate bias; rather, it is an interjection that falls under the trial court's ability to guide questioning so as to avoid wasting time and effectively determine the truth. See id.

Appellant contrasts the trial court's interjection above with another that allegedly proves the trial court's partiality towards the State:

[Trial Court]: Counsel, I think he's already answered that there's no activity on that phone from her after 4:06, I think is what he said. Is that correct? Ask him․ Is that her activity or someone else's.

․

[Witness]: Yes, ma'am, from her, from the decedent.

[State]: Okay. And — but the activity captured within the phone continues past the user activity; is that correct?

[Witness]: Correct.

[State]: And then --

[State]: Incoming. Sorry.

[Trial Court]: Okay.

We again conclude that this does not clearly display bias. Like the other interjection above, it shows that the trial court wanted to clarify—for the jury's benefit—whether the witness had already answered the question or not.

In another part of the trial, appellant complains that the trial court assisted the State in eliciting testimony by instructing the State to lead its witness:

[State]: And when you see her in the bed, what do you see? What does she look like?

[Trial Court]: Could you be more specific in your question? ․ You can lead her a little bit.

[State]: Okay. And — but the activity captured within the phone continues past the user activity; is that correct?

Instead of showing bias, this comment reflects the trial court exercising its authority to direct the witness examination in a manner that avoids wasting time and is effective for determining the truth. See Tex. R. Evid. 611(a). Additionally, it should be noted that there is not an outright restriction on leading questions. Although leading questions should not ordinarily be employed on direct examination, the trial court has discretion to allow leading questions “as necessary to develop the witness's testimony.” Tex. R. Evid. 611(c). The trial court admonished the State to avoid leading questions in other portions of trial, but here, the trial court could have reasonably determined that leading questions were necessary to help establish the facts.

On another occasion, appellant complains that the trial court coached the State on how to examine its witness. Appellant objected on the basis that the State's witness was not qualified to answer one of the State's questions. Out of the jury's presence, the trial court stated he wanted to “shortcut this” and proceeded to give examples of the kinds of questions it would allow the State to ask since the witness was not an expert. After the bench conference concluded, the State proceeded with a question and appellant immediately responded by objecting again on the basis of qualification. The trial court then instructed the State as follows: “Okay. Just ask a line of questions and I'll allow it ․ just what I discussed up here.” But this does not demonstrate wrongful or inappropriate prejudice. The trial court was attempting to exercise its role in determining the admissibility of the witness's testimony and was trying to do so efficiently without wasting time. And by doing so, the trial court was implicitly sustaining appellant's objections by warning the State what type of questions the trial court would not allow.

Appellant complains of another exchange that he argues is illustrative of the trial court stepping in to support the State. However, like several of the other examples above, the full exchange tells a slightly different story:

[Appellant]: Objection as to what he asked, Judge.

[Trial Court]: Objection to what?

[Appellant]: Hearsay. Hearsay. He said he asked a question, and he was about to say—

[Trial Court]: Well, you hear him ask a question. That's -- I'll allow that, but not what the question was.

[State]: And what -- Judge, a question -- I think it's not a statement offered for the truth of the matter because there's no truth --

[Trial Court]: Okay. Don't tell me what the law is, Counsel. I just sustained his objection. Move on.

․

[State]: Okay. And was he still having that emotion when he was talking and you observed him talking with the defendant?

[Appellant]: Objection, leading.

[Trial Court]: Overruled. Would you also establish a little bit better, if you're going to be asking this, a timeline, please?

In combination with the exchanges we have already analyzed above, what we can glean is that the trial court acted somewhat aggressively with both appellant and the State. Furthermore, this exchange stands in contradiction to appellant's argument above that the trial court never ruled in his favor or let him finish making objections. Instead of showing clear bias, it shows the trial court performing its duties in attempting to make the witness examination as effective as possible so that the jury could determine the truth.

Although we do not condone every action or comment of the trial court, we conclude—by looking at each of appellant's complaints individually and collectively—that appellant has failed to clear the high hurdle necessary to show judicial bias or partiality. We overrule his sole issue.

III. CONCLUSION

We affirm the judgment of the trial court as challenged on appeal.

FOOTNOTES

1.   The State argues that some of appellant's complaints fall into a third category: comments made outside the presence of the jury. Citing to a case from our court, the State argues that a party cannot prove judicial bias by pointing to comments made outside the jury's presence. See Joung Youn Kim v. State, 331 S.W.3d 156, 160 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd). However, the State seems to be confounding statutory claims of judicial bias with constitutional claims of judicial bias. In Joung Young Kim, we were analyzing a statutory claim of judicial bias under article 38.05, which is subject to a standard non-constitutional harm analysis—i.e., any error that does not affect a substantial right must be disregarded. See id.; Tex. R. App. P. 44.2(b). Accordingly, a comment outside of the jury's presence could not have possibly prejudiced the defendant. See Joung Youn Kim, 331 S.W.3d at 160. The same was true in Proenza, where the Court of Criminal Appeals concluded that the court of appeals should have employed a non-constitutional harm analysis in reviewing the appellant's article 38.05 claim of judicial bias. See Proenza v. State, 541 S.W.3d 786, 801 (Tex. Crim. App. 2017).On the other hand, a constitutional claim of judicial bias is not subject to a harmless-error analysis. See Arizona v. Fulminante, 499 U.S. 279, 309 (1991); see also Tex. R. App. P. 44.2(a) (emphasizing that only if a constitutional error is “subject to harmless error review,” then the court of appeals can reverse if it determines “beyond a reasonable doubt that the error did not contribute to the conviction or punishment”) (emphasis added). Thus, for constitutional claims of judicial bias, it is irrelevant whether the action occurs outside the jury's presence. It is possible for a trial court to display “wrongful,” “inappropriate,” or “excessive” bias even outside the jury's presence.

Tonya McLaughlin Justice