Decker v. State

WILLIAM MCKINLEY DECKER, SR., Appellant v. THE STATE OF TEXAS, Appellee

No. 05-18-01259-CR

Court of Appeals Fifth District of Texas at Dallas

February 10, 2020

On Appeal from the Criminal District Court No. 4 Dallas County, Texas

Trial Court Cause No. F-1730527-K

MEMORANDUM OPINION

Before Justices Whitehill, Schenck, and Richter¹

Opinion by Justice Schenck

William McKinley Decker, Sr. entered an open plea of guilty to the offense of aggravated sexual assault of a child. The trial court accepted his plea, found him guilty, and assessed punishment at fifty-five years' confinement. In three issues, he asserts the trial court violated his fundamental right to a neutral and detached arbiter and violated his statutory and common-law rights to allocution.² The State, by cross-issue, asserts the trial court's judgment should be modified to include an affirmative finding that the victim of the alleged offense was younger than 14 years of age. We affirm the trial court's judgment as modified by this opinion. Because all issues are settled in the law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

BACKGROUND

Originally, appellant was indicted for the felony offense of continuous sexual abuse of a child. Upon the State's motion, the charged offense was reduced to the felony offense of aggravated assault of a child. Appellant then entered his open plea of guilty and executed a judicial confession. The plea exposed appellant to a punishment range of 5 to 99 years or life in prison and a fine up to $10,000. TEX. PENAL CODE ANN. § 12.32.

The evidence presented to the trial court established the following. The complainant, F.D., is appellant's biological daughter. To the outside observer, appellant appeared to be a good father to F.D. He attended F.D.'s dance recitals, was involved in her Girl Scout troop, and participated in the "Dad's Club" at her elementary school. Nevertheless, appellant began sexually abusing F.D. when she was four or five years old. That abuse continued until F.D. was ten or twelve. Appellant treated F.D. as a substitute wife after appellant lost interest in his wife, F.D.'s mother.

The trial court heard the details of the abuse, which involved numerous sex acts, and about how appellant failed to heed F.D.'s repeated pleas that he stop while he engaged her in those acts, that need not be detailed here. Part of the abuse included appellant performing "body checks" of F.D., during which he claimed to be looking for ingrown hairs and allergic reactions. Approximately two years prior to trial, appellant moved to Colorado taking F.D. with him to live with him as his wife. The Colorado authorities eventually received a report that F.D. had disclosed sexual abuse, which led to a forensic interview and police investigation. During the investigation, F.D. was removed from appellant's home and placed with her grandmother. When confronted with the allegation and of the need to remove F.D., appellant did not deny the alleged abuse and said, "well, okay," and then proceeded to pack F.D.'s personal items. The investigator described appellant's behavior as "odd;" and testified that she had never had a reaction like that before whentelling someone they are accused of sexually abusing their own child. Appellant admitted what he did was wrong, but said that he would still love F.D.

F.D. did not recognize appellant's actions as abuse until she reached the fourth grade. She then began writing about the abuse in her diary. During the forensic interview, F.D. revealed she hid knives in her room to defend against appellant and that she had contemplated suicide. She had in fact made two attempts to take her life, first by cutting her wrists and then by prescription medication overdose. F.D. has been diagnosed with post-traumatic stress disorder, bipolar disorder, and an anxiety disorder. She no longer trusts men. She fears appellant is going to come and get her. When appellant was brought back to Texas to be booked into the Dallas jail, she was scared "half to death."

The trial court found appellant guilty of aggravated assault of a child and sentenced him to fifty-five years' confinement. Appellant's trial counsel filed a motion for new trial on appellant's behalf asserting the verdict is contrary to the law and evidence. Appellant filed his own motion in which he asserted the record contained insufficient evidence to support his conviction and indicated ineffective assistance of counsel. The trial court overruled both motions and this appeal followed.

DISCUSSION

I. Judicial Bias

In his first issue, appellant urges the trial court committed reversible error of both a fundamental and structural nature because the trial court judge was biased against him.

We begin by noting that appellant does not direct us to any portion of the record that would indicate that he made a request, objection, or motion based on the trial court's alleged bias. See TEX. R. APP. P. 33.1(a) (requiring a timely request, objection, or motion to preserve a complaint for appellate review). He specifically did not file a motion to recuse the trial court judgeor seek a new trial on the basis of bias. Absent an objection, a defendant waives error unless it is fundamental—that is, the error creates egregious harm. See Mendez v. State, 138 S.W.3d 334, 338 (Tex. Crim. App. 2004). 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. See Brumit v. State, 206 S.W.3d 639, 644-45 (Tex. Crim. App. 2006) (declining to decide whether an objection is required to preserve an error of this nature and instead resolving the issue on the basis that the record did not reflect partiality of the trial court).

Due process requires a neutral and detached judge. Id. at 645. To reverse a judgment on the ground of improper conduct or comments of the judge, we must be presented with proof (1) that judicial impropriety was in fact committed, and (2) of probable prejudice to the complaining party. Id. We review the entire record. Id. 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. Judges are not potted plants. Sims v. State, No. 05-18-00139-CR, 2018 WL 6333250, at *2 (Tex. App.—Dallas Nov. 29, 2018, no pet.) (mem. op., not designated for publication). Of course, best practice might suggest a judge should refrain from sharing his or her thoughts in many instances. Nevertheless, there is no requirement that a judge remain unmoved by the evidence presented or silent in its face, as he or she is the only one capable, in a bench trial, of making a determination based on the evidence presented.

Judicial remarks may suggest improper bias if they reveal an opinion deriving from an extrajudicial source, but when no extrajudicial source is alleged, such remarks will constitute grounds for reversal only if they reveal such a high degree of favoritism or antagonism as to make a fair judgment impossible. Brumit, 206 S.W.3d at 645. To constitute bias clearly on the record, the deep-seated antagonism must be apparent from the judicial remarks themselves, without"interpretation or expansion" by an appellate court. Gaal v. State, 332 S.W.3d 448, 457 (Tex. Crim. App. 2011).

In this case, appellant does not allege that the trial court judge's remarks revealed an opinion derived from an extrajudicial source; therefore, he must show that the trial court displayed a deep-seated favoritism or antagonism that would make fair judgment impossible. See Brumit, 206 S.W.3d at 645. He alleges two instances in the record show the trial court's bias against him. More particularly, appellant contends the trial court's reference to "our victim" when pronouncing appellant's guilt³ and failure to ask him if he wanted to exercise his right to allocution, show the trial court's bias.

Appellant claims the trial court's reference to "our victim" demonstrates the trial court had abandoned its neutral status and aligned itself with the victim. We disagree. The comment was made after appellant had already entered a plea of guilty, made a judicial confession, and evidence had been admitted establishing that appellant had abused F.D., and, as a result, that F.D. was, in fact, the victim of appellant's crime. There was no dispute over whether F.D. was the alleged victim in this case or that the judge's comment came after his guilt was established. The context in which the judge used the term "our victim" does not establish an alignment with the victim, and an expression of sympathy for F.D. based on the evidence presented at trial does not violate the due process clause. See United States v. Rangel, 697 F.3d 795, 804-05 (9th Cir. 2012). We conclude the trial court's words themselves do not evince a deep-seated favoritism or antagonism that would make fair judgment impossible. See Gaal, 332 S.W.3d at 457.

Appellant further claims the trial court's failure to ask him to speak in mitigation ofpunishment shows clear bias because it demonstrates the trial court could not wait to send appellant to prison. Appellant points us to nothing in the record that would associate the judge's error in failing to permit allocution to any kind of bias against him. On the contrary, allocution error has become a regrettably common feature of sentencing in our trial courts and, thus, is hardly an indication of disparate treatment in this case.⁴ While the record reveals that the trial court was generally impatient throughout the trial, it was the State that bore the brunt of the trial court's frustration with the speed at which it made its case. Appellant has failed to establish that the trial court's failure to provide appellant with the right of allocution was anything other than an oversight on the part of the trial court.

After reviewing the entire record, we conclude the trial...