Opinion by Justice Schenck

On Appeal from the 204th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1263003-Q

MEMORANDUM OPINION

Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Schenck

Appellant, Lakeisha Shanta Hill, was convicted of child endangerment and sentenced to twenty-four months in state jail, probated for five years. A year later, the State sought to revoke her probation. Following Appellant's plea of true, the trial court revoked her probation and sentenced her to twenty-four months' in state jail. Appellant now raises five issues challenging the trial judge's conduct during the hearing on the motion to revoke probation. The State requests this Court reform the trial court's judgment of conviction to reflect that Appellant entered a plea of not guilty. We overrule Appellant's issues and deny the State's request to modify the judgment, though we order the trial court to enter an amended judgment correcting other clerical errors as described herein. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

FACTUAL & PROCEDURAL BACKGROUND

The State's motion to revoke probation alleged the following violations of Appellant's probation: two positive urinalysis tests for cocaine, failure to work faithfully at suitable employment, failure to pay community-supervision fees, and failure to pay the urinalysis fee. Appellant pleaded true to the allegations in the motion to revoke probation and testified during the hearing on the motion. During the hearing, the trial judge questioned Appellant regarding her living situation and drug use. Appellant testified she lived with her sister and nephew, had a fifteen-year-old son who did not live with her, and had twice relapsed in drug use, which she attributed to her uncle's passing from cancer and because she was celebrating her birthday. After hearing counsels' arguments and Appellant's testimony, the trial judge asked whether Appellant preferred to be sent to Substance Abuse Felony Punishment Facility ("SAFPF") or to state jail for twenty-four months. When Appellant admitted she had already been to SAFPF, the trial court sentenced her to twenty-four months in state jail.

DISCUSSION

I. DID THE TRIAL JUDGE ABANDON HER ROLE AS NEUTRAL ARBITER, THUS DEPRIVING APPELLANT OF HER RIGHTS TO DUE PROCESS AND DUE COURSE OF LAW?

In her first and second issues, Appellant contends the trial judge abandoned her role as a neutral arbiter during the hearing, thus depriving Appellant of her right to due process under the Fourteenth Amendment of the United States Constitution and her right to due course of law under Article I, § 19 of the Texas Constitution. She argues the trial judge failed to remain neutral and detached and that the judge's comments and conduct demonstrated an adversarial position against Appellant, which rendered the judge biased against Appellant. The State responds that Appellant failed to preserve these issues on appeal because she failed to timely object to the complained-of comments. The State alternatively argues that no error occurred as a result of the trial judge's comments and conduct, noting that the trial judge's comments expressed annoyance at Appellant for making excuses for violating the law and were based on Appellant's testimony in court, not on any extrajudicial knowledge. Appellant counters that the trial judge's comments and conduct constituted fundamental error such that no objection was required to preserve her issues on appeal. Because we find no reversible error, we need not address whether any such error is of a fundamental nature.

Due process, as it is embraced in the federal and Texas constitutions, requires a neutral and detached hearing officer. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Earley v. State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi 1993), pet dism'd, improvidently granted, 872 S.W.2d 758 (Tex. Crim. App. 1994). Absent a clear showing of bias, the court's actions will be presumed to have been correct. Brumit, 206 S.W.3d at 645.

To reverse a judgment based on improper conduct by the trial court, we must conclude the judicial impropriety occurred and prejudice probably resulted to the complaining party. Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). Our review encompasses the entire record. Id. Judicial conduct that is critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily does not support a bias or partiality challenge. Id. Judicial remarks during the course of a trial will support a bias or partiality challenge if "they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Litekey v. United States, 510 U.S. 540, 555 (1994) (discussing bias in the context of recusal).

Appellant generally complains of the trial judge's questioning during Appellant's testimony and more specifically quotes the trial judge's comments and questions during closing arguments. We will assess Appellant's complaints concerning the judge's specific comments and questions Appellant cites before addressing Appellant's broader objections.

A. Specific Comments

Appellant specifically complains of several comments and questions from the trial judge during the prosecutor's closing arguments. The first of which was "[Appellant] can't [accept responsibility] because she's there shaking her head at you like you're crazy or something, like you're saying some crazy stuff. Why are you looking at the DA shaking your head like she's talking crazy?" The trial judge then went on to ask Appellant if all of what the prosecutor said was a lie, asking if it was true that Appellant attended an outpatient treatment program and used cocaine again after her release. Appellant admitted she did make a mistake, to which the trial judge responded by asking her what the prosecutor said that she disagreed with. Appellant responded that her failure to remain sober did not mean the outpatient treatment program did not help her. The trial judge then asked Appellant to identify when it was she made a mistake, asking if it was "the time that you were on probation for aggravated assault with a deadly weapon and deadly conduct . . . or did you make a mistake in 2012 when you picked up a theft . . . or did you make a mistake when you drove around to a drug house with your child—with your sister's child and got caught driving with the baby on—or the time that you used cocaine?"

When Appellant responded to the trial judge's questions that she disagreed with the prosecutor's statement regarding her relapse, the trial judge responded with the following admonishments.

Okay. See, this is your problem. You think you know everything. You think you know what's best for you and you're coming in here lecturing me and the prosecutor about what's best for you . . .

. . . but your whole life you've never been able to make the right decision. You keep coming back and coming back to this jail. And you have the nerve to utter your child and your uncle's name to get out of going to rehab. That's really low. That's really low.

And you're standing there, oh, yeah, I want to do this because I want to get back with my child. That's a lie. You're hanging with your old friends and the old neighborhood, getting high on cocaine, because that's you. That's what you do. You don't care about your son. You don't care about your uncle. You don't want to do anything. You don't even mind that your sister, if it's true, is supporting you and has supported you, no-job-having, no-child-having, no-nothing-doing probationer. And you come in here with an attitude like all of us are messed up.

I'm going to follow this plea bargain agreement, but not because I think you deserve it. I think you need 24 months because you've earned every single day of it with your lies, your minimization. If I were your sister, I wouldn't let you near me or her baby. I'd kick you out in the streets because you've been given everything, everything you've asked for up to this point. And here you are walking back up here, thinking we're just gonna give you what you want again. Well, that's not happening.

B. Comments and Questions Generally Cited

We now turn to the area of the record Appellant more generally complains of. Appellant cites a portion of the reporter's record extending over fourteen pages, which we summarize below.

The portion of the record begins when the trial judge interrupted defense counsel's questions of Appellant with her own questions to clarify her understanding of Appellant's testimony. When Appellant mentioned she had one fifteen-year-old son, the trial judge questioned why Appellant would use cocaine when she was responsible for a fifteen-year-old child and expressed her dissatisfaction with Appellant's response that she "relapsed due to [her] uncle passing of cancer." At that early point, the trial judge stated she did not believe Appellant needed to go to rehabilitation because "you got some serious thinking errors going on . . . [i]f your uncle passing away makes you do cocaine, even though you're responsible for a 15-year-old child."

The trial judge then asked Appellant about the circumstances of her underlying conviction for endangering a child, asking about the identity of the child.

APPELLANT: That was my nephew. And the police officer told me they—they—where I was when I came—even when I came to court, they said that was where I was—that the place that I was with him, under investigation. It was a drug—drug-infested area. And that's the area that I lived in all my life, do the PCP. They never found any PCP on me or anything.

TRIAL JUDGE: Ms. Hill takes minimal or no responsibility for her actions, instead she attempts to minimize and rationalize her behaviors. So you just did me a favor and pled guilty to something you didn't do? Really?

Next, the trial judge asked where Appellant's fifteen-year-old child was at the time of the revocation hearing. When Appellant responded her son was with her mother, the trial judge asked whether Appellant's mother was also a drug user and whether her son lived with her while she was on community supervision. Appellant responded that her mother did not use drugs and that her son was living with his father's family before Appellant was incarcerated.

TRIAL JUDGE: I'm sorry. So why are we talking about your 15-year-old son then?

APPELLANT: That's the only child I had, Judge Levario. I had to take care of him. I'm responsible for my child.

TRIAL JUDGE: No, you're not. That's why you're here, because you're irresponsible. And you're trying to use your child to get out of doing what you need to do, is go to rehab. Right?

The trial judge's questions turned to what rehabilitation treatment Appellant received prior to the hearing. After finding out that Appellant had already voluntarily enrolled in the same outpatient program she had already completed after her conviction, the trial judge asked, "So you're saying that if I cut you loose from jail today, you're good to go; you're not going to test positive anymore?" When Appellant responded affirmatively, the trial judge questioned Appellant on how often she was tested for drug use since her conviction, the timing of her conviction a year prior to the revocation hearing, her successful completion of the outpatient rehabilitation treatment, and her subsequent positive test results for cocaine.

The trial judge continued questioning Appellant about whether she completed other conditions of her community supervision, including parenting classes and whether she had obtained a job. Following up on Appellant's explanation for why she had been unsuccessful in obtaining a job, the trial judge asked where Appellant lived and how without a car or job Appellant was able to obtain cocaine that caused her to fail the urinalysis test.

TRIAL JUDGE: And you walk there?

APPELLANT: No, sometimes a bus.

TRIAL JUDGE: I don't see a woman that doesn't have a job, that's living with her sister, even has money just to be buying dope in the first place and then buying a ticket to go get dope.

APPELLANT: No, ma'am. There was other people, like people that I know. I don't have money for drugs—to buy drugs.

TRIAL JUDGE: August 23rd. And already in a month you're using cocaine again. okay.

APPELLANT: Was that my aftercare you're referring to, or were you referring to my SOP—SOP [Supportive Outpatient]. Because my aftercare is voluntary. So I finished before August, the—the treatment plan. The aftercare was voluntary. I did, like, ten classes of that. That's just like AA/NA meetings. That's why I said like July or something.

TRIAL JUDGE: Oh, you got high for your birthday. Who were you partying with?

APPELLANT: Myself. On my birthday, myself.

TRIAL JUDGE: And your sister didn't know you were getting high?

APPELLANT: No.

TRIAL JUDGE: That's hard to believe. Intensive outpatient, December 2013 through February. 18 sessions. Supportive Outpatient, February through March. Completed 20 sessions.

APPELLANT: Yeah, something like that.

C. Conclusions regarding trial judge's questions, comments, and conduct

We conclude that while the foregoing comments and conduct from the trial judge are critical of Appellant, they do not rise to the level of "deep-seated . . . antagonism that would make fair judgment impossible." Litekey, 510 U.S. at 555. Furthermore, "expressions of impatience, dissatisfaction, annoyance and even anger" in the ordinary conduct of court administration does not establish bias. Id. (discussing bias in the context of recusal). Nor does it appear from the record that the trial judge became so entangled in the role of an advocate that she lost her ability to remain neutral and detached. Silverio v. State, No. 05-14-01412-CR, 2015 WL 6756685, at *3 (Tex. App.—Dallas Nov. 4, 2015, no. pet..) (mem. op., not designated for publication). Although the trial judge expressed some annoyance, her questions were based on Appellant's plea of true and testimony and reflected the judge's attempts to understand Appellant's state of mind and acceptance of responsibility for her actions. We overrule Appellant's first and second issues. II. DID THE TRIAL JUDGE ABUSE HER DISCRETION BY CONSIDERING EVIDENCE OUTSIDE THE RECORD?

In her third issue, Appellant contends the trial judge abused her discretion by considering evidence outside the record in deciding Appellant's sentence. Appellant argues that the trial judge's questions established new facts, which were not established by either party, such that these facts were evidence outside the record. She then alleges the trial judge considered this evidence not presented by the parties in determining Appellant's sentence. The State responds Appellant failed to preserve this issue by failing to object to the trial court. The State alternatively argues that no error occurred, contending, among other things, that Appellant's answers to the trial judge's questions, which occurred on the record, are not evidence outside the record. Regardless of whether the issue was preserved, there was no error.

During the punishment phase of trial, evidence as to any matter may be offered if the trial court deems it relevant to sentencing. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (West 2016). A trial court has broad discretion to admit evidence it deems relevant to sentencing, and we will not disturb that ruling to admit evidence on appeal unless it falls outside the zone of reasonable disagreement. Hayden v. State, 296 S.W.3d 549, 553 (Tex. Crim. App. 2009). Further, Texas appellate courts have long held a trial court has the right to question a witness in order to obtain a clearer idea of the merits of the cases, especially where the trial is before the court without a jury. Marshall v. State, 297 S.W.2d 135, 136-37 (Tex. Crim. App. 1956). Finally, as noted above, absent a clear showing of bias, a trial court's actions will be presumed to have been correct. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).

The evidence Appellant complains is "outside the record" is comprised of Appellant's own responses to the trial judge during the course of the revocation hearing and following Appellant's plea of true to the revocation motion. Appellant cites us to no authority, and we have found none, to suggest a witness's responses to a trial judge's questions constitute evidence outside the record. Accordingly, we overrule Appellant's third issue. III. DID THE TRIAL JUDGE VIOLATE THE RULES OF EVIDENCE BY TESTIFYING AS A WITNESS?

In her fourth issue, Appellant alleges the trial judge violated rule 605 of the Texas Rules of Evidence by testifying as a witness. Appellant complains the "majority of the trial court's questions and comments . . . established new facts." She points to the record to argue the trial judge "elicited information from Appellant about several subjects." She argues the trial judge's statements and questions established new evidence in violation of rule 605. The State responds that all of the questions Appellant complains about were based on other statements Appellant made and were made pursuant to the trial judge's judicial function and to inform the judge's exercise of discretion. The State further contends that since no jury was present to be influenced by what the trial judge said, her comments and questions could not have harmed Appellant.

Rule 605 provides, "The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue." TEX. R. EVID. 605. Texas courts have held the question should be whether the trial judge's statement of fact is essential to the exercise of some judicial function or is the functional equivalent of witness testimony. Hammond v. State, 799 S.W.2d 741, 746 (Tex. Crim. App. 1990).

Appellant identifies the following examples to support her complaint.

DEFENSE COUNSEL: And can you tell the Judge about your children?

APPELLANT: I have one 15-year-old son—one 15-year-old son.

DEFENSE COUNSEL: Okay. And—

TRIAL JUDGE: And you're using cocaine? You got a kid that's 15 and you're the one using cocaine? Wow.

APPELLANT: I relapsed due to my uncle passing of cancer. Yes, ma'am, I did.

TRIAL JUDGE: Really?

APPELLANT: Yes.

TRIAL JUDGE: Really? You're using your uncle passing of cancer as an excuse for you to use cocaine? Wow. Is that what you're teaching your son?

APPELLANT: No, ma'am.

TRIAL JUDGE: Don't admit your mistakes, son, just use your uncle's death as an excuse to go violate the law and be a bad mommy. Wow. Yeah, I don't think you need to go either place because you got some serious thinking errors going

on. If your uncle passing away makes you do cocaine, even though you're responsible for a 15-year-old child, yeah, I think I'm—I'm thinking—24 months in a State jail is what I'm thinking. Why did you use PCP when you were arrested? Somebody else die?

We note after reviewing the record that—contrary to Appellant's complaint—the trial judge's comments and statements above did not establish any new facts. For example, the record includes the testimony from Appellant's trial, which established Appellant testified positive for PCP and that one of the arresting officers testified to smelling PCP in her car. Thus, the judge's question regarding Appellant's PCP use did not introduce any new facts into the record, but instead the question—like the others the trial judge asked—sought to assess Appellant's state of mind. Appellant's responses revealed her minimization of her own behavior and responsibility for her actions. While the judge's responses may have reflected disappointment with Appellant's behavior and attitude, conveying knowledge of that disappointment to the party does not constitute the establishment of new facts.

Appellant next points to the following example from the record wherein the trial judge questioned Appellant about who she lived and associated with.

TRIAL JUDGE: Who—where is your 15 year-old-kid now?

APPELLANT: He's with my mother right now.

TRIAL JUDGE: Does your mother—is she also a drug user?

APPELLANT: No, she's not.

Given that Appellant requested the trial judge consider placing her in an outpatient treatment program, who Appellant lives with and associates with would be extremely relevant for the trial judge's consideration in sentencing Appellant. The trial judge's questions do not appear to be the functional equivalent of witness testimony. Hammond, 799 S.W.2d at 746.

Appellant then points to the following exchange as the trial judge eliciting information about whom Appellant lived with and where she used drugs.

TRIAL JUDGE: So who pays for your rent?

APPELLANT: My sister.

TRIAL JUDGE: You live with your sister?

APPELLANT: Yes, ma'am.

TRIAL JUDGE: Where does she work?

APPELLANT: She's a manager of the apartment complex.

TRIAL JUDGE: And so where were you when you were using your cocaine?

APPELLANT: Out and about. Out—not in the—not in the home.

TRIAL JUDGE: Where were you? How did you get there?

APPELLANT: How did I get to—to use drugs?

TRIAL JUDGE: Where-yeah. Where did you go to get the cocaine—

APPELLANT: Oh, it's from another neighborhood.

Again, the referenced transcript does not show the trial judge to be testifying as a witness so much as she is asking questions to clarify her understanding of Appellant's living situation and how she obtains access to drugs, all evidence relevant for the trial judge's consideration in sentencing Appellant. See Hammond, 799 S.W.2d at 746.

Finally, Appellant complains the following statement did not clarify testimony or any judicial rulings, but established new evidence or simply berated Appellant with disdain.

TRIAL JUDGE: Ms. Hill takes minimal or no responsibility for actions, instead she attempts to minimize and rationalize her behaviors. So you just did me a favor and pled guilty to something you didn't do? Really?

TRIAL JUDGE: . . . Why did you use PCP when you were arrested? Somebody else die?

APPELLANT: No.

TRIAL JUDGE: Why did you have PCP in your car?

APPELLANT: I didn't have PCP on me.

TRIAL JUDGE: Who was that child that was with you in the vehicle?

APPELLANT: That was my nephew. And the police officer told me they—they—where I was when I came—even when I came to court, they said that where I was that—that the place that I was with him, under investigation. It was a drug—drug-infested area. And that's the area that I lived in all my life, do the PCP. They never found any PCP on me or anything.

Review of the foregoing exchanges reveals the trial judge's statements and questions were not the functional equivalent of witness testimony, but were in fact made as part of her judicial function as fact-finder by clarifying evidence relevant to her decision regarding Appellant's sentencing. Hammond, 799 S.W.2d at 746. IV. DID THE TRIAL COURT PREJUDGE APPELLANT'S PUNISHMENT?

In her fifth issue, Appellant avers that she was denied due process when the trial court prejudged her punishment. She argues the record shows the trial court had already decided Appellant's punishment before hearing all of the evidence. The State responds Appellant failed to preserve this issue for appeal. The State alternatively contends the record reflects the trial judge had not prejudged Appellant's punishment, pointing to the record where the trial judge asked Appellant, the prosecutor, and defense counsel whether Appellant should be sent to SAFPF or sentenced to twenty-four months in state jail. The State also notes that all the questions and comments complained of by Appellant in prior issues demonstrate the trial judge was still considering what punishment to give to Appellant, arguing that if the trial judge had already prejudged Appellant, she would not need to ask those questions. Regardless of whether the issue was preserved, there was no error.

A trial court's arbitrary refusal to consider the entire range of punishment in a particular case violates due process. Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005). However, absent a clear showing of bias, a trial court's actions will be presumed to have been correct. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). Appellant points to the trial judge's comment that, "If your uncle passing away makes you do cocaine, even though you're responsible for a 15-year-old, yeah, I think I'm—thinking—24 months in a State jail is what I'm thinking." She argues the above statement made early on in the hearing demonstrates the trial judge decided at that point to sentence Appellant to state jail rather than impose any other sentence, such as ordering Appellant to participate in SAFPF. However, the record reflects that even after that comment and prior to sentencing Appellant, the trial judge continued to ask both the prosecutor and defense counsel whether Appellant should be sent to SAFPF or sentenced to twenty-four months in state jail.

As the Supreme Court has stated, "expressions of impatience, dissatisfaction, annoyance and even anger" in the ordinary conduct of court administration does not establish bias. Litekey v. U.S., 510 U.S. 540, 555 (1994) (discussing bias in context of recusal). We find no basis in any of the court's comments for concluding the court was biased or predetermined Appellant's guilt. Accordingly, we conclude Appellant's due process rights were not violated and overrule her fifth issue. V. MODIFICATION OF JUDGMENT

In its response brief, the State requests that the judgment of conviction dated September 19, 2013, be reformed to reflect that Appellant entered a plea of not guilty. We have noted the error identified by the State. But once Appellant's probation was revoked, the judgment dated October 30, 2014, became the operative judgment. Accordingly, we decline the State's request to modify the judgment of conviction dated September 19, 2013.

However, in reviewing the record, we note the operative judgment dated October 30, 2014, does not accurately reflect the record. The operative judgment is titled "Judgment of Conviction by Court—Waiver of Jury Trial" and lists Appellant's plea to the offense as guilty. The record clearly establishes the proceeding in question was the revocation of Appellant's community supervision and that Appellant pleaded true to the allegations made in the State's motion to revoke probation. We have the authority to modify the trial court's judgment to make the record speak the truth. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). Accordingly, we modify the operative judgment dated October 30, 2014, to reflect Appellant pleaded true to the allegations in the State's motion to revoke probation. Because the title of the operative judgment is incorrect, we modify the title of the operative judgment to be "Judgment Revoking Community Supervision."

CONCLUSION

As modified, we affirm the trial court's judgment. We order the trial court to enter an amended judgment noting these corrections.

/David J. Schenck/

DAVID J. SCHENCK

JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47 141445F.U05

JUDGMENT

On Appeal from the 204th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1263003-Q.
Opinion delivered by Justice Bridges, Justices Lang-Miers and Schenck participating.

Based on the Court's opinion of this date, the judgment of the trial court in cause no. 05-14-01445-CR is MODIFIED as follows:

We modify the title of the judgment dated October 30, 2014, to be "Judgment Revoking Community Supervision." And we modify the judgment dated October 30, 2014, to reflect appellant pleaded true to the allegations in the State's motion to revoke probation.

As modified, we AFFIRM the trial court's judgment. We ORDER the trial court to enter an amended judgment noting these corrections. Judgment entered this 14th day of April, 2016.