Opinion
No. 05-17-00397-CR
04-25-2018
PRINCESS WHITE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F14-76807-P
MEMORANDUM OPINION
Before Justices Lang-Miers, Fillmore, and Stoddart
Opinion by Justice Lang-Miers
Appellant Princess White was charged with the offense of injury to a child causing serious bodily injury. Appellant waived a jury, judicially confessed to the offense as charged in the indictment, and entered an open plea of guilty. After a bench trial on punishment, the trial court sentenced appellant to life imprisonment. On appeal, appellant claims she was denied an impartial judge because the trial court "abandoned its position and became a prosecution attorney" through extensive and independent questioning of appellant and other witnesses. We affirm.
Background
On April 23, 2014, appellant gave birth to a healthy baby boy, K.S.; he weighed six pounds, nine ounces. On December 2, 2014, K.S. died; he weighed approximately seven pounds, which was at least ten pounds less than the appropriate weight for a child of that age. Post-mortem photographs of K.S.'s body showed a severely emaciated infant with shrunken skin and bones sticking out. The medical examiner ruled that K.S. died as a result of "malnutrition and dehydration;" it would have taken the child at least two, and possibly three, months to starve to death. In her judicial confession, appellant admitted that she was guilty of causing serious bodily injury to K.S. by failing to provide adequate nutrition to him and by failing to seek adequate medical care for him.
Because appellant entered a plea of guilty and judicially confessed to the offense exactly as alleged in the indictment, the sole issue before the trial court was the appropriate punishment to assess.
Appellant's Claims on Appeal
Appellant claims that she was denied due process of law because the trial court judge, by independently and extensively questioning appellant and other witnesses, "abandoned its position" as a neutral and detached magistrate and took on the role of the "prosecution attorney." Appellant argues that the trial court's questioning went on for "pages at a time" while the trial court "inquired into the facts underlying the offense, particularly [a]ppellant's intent and state of mind." Appellant further argues that, in addition to questioning appellant and other witnesses, the court engaged in a "discussion of issues that the court then formulated and used as justification for its sentencing verdict."
Due Process
A State may not "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV; see also TEX. CONST. art. I, § 19 (providing that "No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."). Due process requires a neutral and detached trial court judge. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). This right applies to both the guilt-innocence and punishment phases of a trial. Hernandez v. State, 268 S.W.3d 176, 184 (Tex. App. - Corpus Christi 2008, no pet.). A judge must not (1) have an actual bias against the defendant, (2) have an interest in the outcome of the case, or (3) assume the prosecutor's role. Avilez v. State, 333 S.W.3d 661, 673 (Tex. App. - Houston [1st Dist.] 2010, pet. ref'd). Generally, courts will not find a due process violation absent a "clear showing of bias." Brumit, 206 S.W.3d at 645.
Appellant's arguments impact only the third consideration, i.e., whether the trial court took on the role of the prosecutor by questioning appellant and other witnesses.
Preservation
As a prerequisite to presenting a complaint for appellate review, the record must generally show that the same complaint was made to the trial court by a timely request, objection, or motion and that the trial court either ruled on the request, objection, or motion or, if the court refused to rule, that the complaining party objected to the court's refusal. TEX. R. APP. P. 33.1 (a)(1), (2). Some exceptions exist to this general rule. In Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)), the Texas Court of Criminal Appeals set out three types of rules for error preservation: (1) absolute systemic requirements and prohibitions, (2) rights that must be implemented unless expressly waived, and (3) rights that are implemented upon request. Id., at 279. The mandates of Rule 33.1 as a prerequisite to appellate review only apply in cases that involve Marin Category 3 rights, i.e., that must be implemented upon request, objection or motion. Id. Category 1 and Category 2 errors may be addressed on appeal regardless of whether a trial level objection is made. Id.
Texas courts have specifically recognized that a request, objection or motion is not required in situations where the complained of action was uniquely within the purview of the trial court. See Proenza v. State, PD-1100-15, 2017 WL 5483135, at *6-*7 (Tex. Crim. App. Nov. 15, 2017) (not yet published) (holding claims on appeal that a trial court's comments were improper and violated TEX. CODE CRIM. PROC. art 38.05 are not subject to forfeiture by inaction; "the right to be tried in a proceeding devoid of improper judicial commentary is at least a category-two, waiver only right" under Marin); Morris v. State, No. 08-16-00153-CR, 2018 WL 1082345, at *10 (Tex. App. - El Paso, Feb. 28, 2018, no pet. h.) (not yet published) (holding that no objection is required to preserve for appellant review the question of whether a trial court abused its discretion by activating electric shocks from a stun belt to enforce courtroom decorum); Hernandez, 268 S.W.3d at 185-186 (applying the three-part Marin framework to conclude that a defendant may raise an issue of the trial court's lack of impartiality in sentencing for the first time on appeal so long as the complained-of conduct was "so egregious as to deem the judge biased on the matter of punishment"); Long v. State, No. 13-13-00579-CR, 2015 WL 234021, at *1, *5 (Tex. App. - Corpus Christi Jan. 15. 2015, pet. ref'd) (not designated for publication) (evaluating a claim of a lack of impartiality by a trial judge who intensively questioned the defendant and another witness for fundamental error).
Appellant did not object to the trial court's questioning of appellant or any other witness. In light of Proenza, we will assume, without deciding, that appellant need not have objected in order to preserve error. However, because we conclude that the record does not establish error, we affirm.
Trial Court Questioning Was Permissible
A trial court judge may question a witness to seek information, to clarify a point, or to get the witness to repeat something that the judge could not hear. See Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. 1978); Moreno v. State, 900 S.W.2d 357, 359 (Tex. App. - Texarkana 1995, no pet.). Courts recognize two dangers when a judge goes beyond permissible questioning: (1) the judge may somehow convey his opinion of the case to the jury and ultimately influence the jury's decision and (2) the judge, in the zeal of active participation, may become an advocate in the adversarial process and lose the neutral and detached role required for the factfinder and the judge. Moreno, 900 S.W.2d at 359. Because the issue of punishment in this case was tried solely to the trial court, there was no danger of influencing a jury. Only the second consideration is implicated by the facts of this case.
In a bench trial, the trial court judge has more latitude than in a jury trial to question a witness to obtain information about the facts of the case. See Cleveland v. State, 588 S.W.2d 942, 945 (Tex. Crim. App. [Panel Op.] 1979) (holding that a judge may question a witness to obtain information about the facts of the case); Marshall v. State, 164 Tex. Crim. 167, 297 S.W.2d 135, 136-37 (1956) (holding that the trial court, in a non-jury trial, had the right to question a witness in order to obtain a clearer idea of the merits of the case so as to inform the court's exercise of its discretion); Moreno, 900 S.W.2d at 359 (holding that, in a bench trial, a judge may go beyond asking a defendant for mere clarification and may ask questions that an advocate might ask in order to assist the fact-finding process); Jones v. State, No. 05-07-00219-CR, 2008 WL 2440290, at *2 (Tex. App. - Dallas June 18, 2008, pet. ref'd) (not designated for publication) (holding that a trial court's questions seeking clarification from a defendant about the particulars of his admitted crime in a punishment hearing following an "open plea" were not error). Though not favored, even extensive and adversarial questioning is permissible as long as the questions are relevant to the issues before the court and the judge's impartiality is not affected. VanWinkle v. State, No. 03-16-00278-CR, 2016 WL 3974650, at *5 (Tex. App. - Austin July 22, 2016, no pet.) (not designated for publication) (holding that that much of the judge's questioning of the defendant, including asking the defendant whether he was being honest and ill-advisedly using the word "stupid" on more than one occasion to describe the defendant's actions, was an attempt to clarify the defendant's inconsistent testimony and reconcile his often contradictory answers given to questions; the judge did not ask any questions that the attorneys in the case would not have been allowed to ask); Long, 2015 WL 234021, at *5 (concluding that the defendant had not demonstrated fundamental error regarding extensive questioning posed by the trial court to both the defendant and his wife in a perjury prosecution after the defendant pleaded guilty but warning that "[t]he extent and adversarial nature of the trial judge's questioning of" the defendant and another witness was a "cause for unease").
Additionally, because appellant asked the trial court to place her on community supervision, the trial court judge had to make an independent determination regarding whether suspending any sentence assessed and placing appellant on community supervision was in the best interests of justice, society, and appellant. TEX. CODE CRIM. PROC. art. 42A.053 (a)(1); see also Ivey v. State, 277 S.W.3d 43, 48 (Tex. Crim. App. 2009) (recognizing that a trial court has broad discretion to place a defendant on community supervision when statutes permit). In determining whether a defendant is an appropriate candidate for community supervision, the trial court has the authority to "independently inquire from witnesses information relevant to those determinations." Guin v. State, 209 S.W.3d 682, 686 (Tex. App. - Texarkana 2006, no pet.).
Trial Court's Questions to State's Witnesses
Appellant provides record citations to multiple instances in which the trial court questioned witnesses other than appellant throughout the punishment hearing. These witnesses were Dallas Police Detective Chris Adams of the child abuse unit; Child Protective Services Investigator Eric Reed; Dr. Andrea Harris, the Field Operations Manager for Women, Infant and Children (WIC); and Dr. Suzanne Dakil, a child abuse pediatrician and the intern medical director of the REACH clinic at Children's Medical Center at UT Southwestern. Appellant does not quote the trial court's questions, comments, or the answers given by these witnesses in her brief.
Chris Adams, Dallas Police Detective, Child Abuse Unit
Detective Adams testified that he went to Medical City Hospital where K.S. was pronounced dead on arrival. He described the dead child as follows: "[s]everely emaciated, skin and bones. You could see basically every bone in his body, eyes sunk in, cheeks very gaunt, looked like he was balding as well." He met with the family in a private consultation room. Appellant gave Adams background information and told him that she was living in an apartment with her mother, her aunt, her sister, and her two older daughters aged approximately three-and-a-half and two. The children's father was in prison. Adams testified that appellant identified herself as K.S.'s primary caretaker, except when she worked, then her sister would watch the children.
With respect to medical history, appellant told Adams that K.S. had an issue with lactose intolerance and that he had been to his two-month check-up and six-month check-up. Adams then "asked if the six-month check-up was in October. She said, yes. She stated that she had frequently been to the doctor and to the emergency room because of [K.S.'s] lactose intolerance." Adams testified that appellant told him "they changed his formula multiple times from...the blue can to the orange can to the green can to the soy formula, but nothing was working. And she stated that there were concerns about his weight, but they just kept telling her to change the formula and go to her WIC appointments." Appellant told Adams that every medical visit was to Texas Presbyterian Hospital.
Adams also interviewed appellant's mother, Rhonda Casey, who told him K.S. threw up every time he was fed. Casey also told Adams that appellant was taking K.S. to a doctor. Both appellant and Casey told Adams that they realized K.S. was losing weight but they told him it was because of the child's lactose intolerance. A subsequent search of appellant's apartment conducted by Adams revealed an orange can of Similac Sensitive formula. Adams testified that he did not find any soy formula in the apartment.
In response to prosecution questions, Adams testified that appellant told him she had awakened around noon on the day K.S. died. She and her mother had been talking on the other side of the apartment; her mother left to go to another part of the apartment and noticed that K.S., who was being carried by his three-and-a-half year old sister, was unresponsive and not breathing. The trial court questioned Adams as to whether he had asked appellant who was keeping K.S. while she slept; he responded that he did not ask that question.
The trial court later asked Adams whether or not he asked anybody how they thought that a baby that looked like K.S. did in the post-mortem photographs "didn't need some help." Adams answered that he did, though he did not "press for details;" he asked if they noticed K.S. was getting skinny, and both appellant and her mother stated "they realized there was some weight loss but they stated it was because of the lactose intolerance."
Because there was an issue as to what type of formula K.S. should have been fed, the trial court asked Adams if, during his search of appellant's apartment, he had found any soy formula in the house; Adams replied no. The trial court followed up by asking if Adams had questioned appellant about this during his interview with her. He stated that "I believe she stated...I think it was the blue can she mentions in her second interview as being soy, and I informed her that it was milk-based. And she stated, oh, then I don't know which can was soy, but there was soy." The trial court asked what appellant had said when told that Adams had not found any soy formula in the apartment. Adams stated that appellant said that the police "must have missed it."
Through its questions, the trial court was seeking information and clarification about the level of care, nutrition and attention K.S. had received at home prior to his death. The trial court's questions were permissible.
Eric Reed, Child Protective Services Investigator
Investigator Reed testified that he was assigned to investigate K.S.'s death. As part of that investigation, Reed interviewed appellant. Reed asked appellant if K.S. had been sick prior to his death. Reed testified that appellant told him the following:
She explained that for the first - I believe she said the first three months of the child's life, that it was doing fine. And then after three months or so, that it started throwing up every time after it was being fed. And she believed it was milk-intolerant. She said they took ... the baby to the doctor numerous times throughout the next four months and they did change the formula several times but the child kept throwing up the formula and wouldn't keep it down.
Reed testified that appellant told him she had always taken K.S. to Texas Presbyterian Hospital for treatment, with the last visit being November 23. The trial court then questioned Reed as follows:
THE COURT: Excuse me...you basically answered this but I just want to make sure. It seems that she's been telling people or telling you and the detective that she was taking the baby to a hospital. Did anyone ever ask her whether or not she had made a doctor's appointment and taken it to a doctor?
THE WITNESS: ... I'm trying to remember exactly what she was saying, that she would take the baby in to the doctor to see if it would change the formula and that they had changed the formula four times during that time period but he kept rejecting it the whole time.
THE COURT: But she never gave you a doctor's name?
THE WITNESS: No.
THE COURT: So was she taking it - according to her, she was allegedly taking the baby to the emergency room?
THE WITNESS: From my understanding, yes.
The trial court's questions to this witness were for the purpose of clarifying information regarding the medical care appellant told the authorities that K.S. had received. The court's questions were permissible.
Dr. Andrea Harris, Field Operations Manager for WIC
Dr. Harris testified that WIC is a USDA funded nutrition/education program for low income women, infants and children. The primary purpose of the program is to provide nutrition and education but WIC also offers formula for infants and food packages for infants, children and pregnant woman as well as breastfeeding services. Through WIC, a client could obtain nutritional education, "food packages," and formula for infants.
Appellant had been a WIC client since her pregnancy with her oldest child. Appellant had enrolled K.S. in the program when he was five days old and was receiving WIC benefits for him as well as her two older daughters. WIC records indicated that K.S. was seen in the clinic five days after he was born, but that was the only time Dr. Harris could say for sure that K.S. had come into the clinic. The clinic wanted to see children every six months. When specifically asked about food benefits for K.S., Dr. Harris explained as follows:
[I]t looks like she had benefits...through July. She actually would have benefits through the year but she has to come back every three months. And so we only allowed three months of benefits at a time. So in July, when she came, she could have gotten three months more of benefits and so she would have those for six months. And I think he (K.S.) was due for another appointment like in October or November.
Appellant's two daughters were seen in July for their "mid-cert" appointments. K.S. could have come with them, but there was no documentation of it. Notes from that July visit reflect the following:
[T]he baby did not like the formula...so what the nutritionist did was she gave her the soy formula, the soy standard formula to try and then she gave her an RX and told her if that does not work, then to take that to the doctor and they could get her another formula.
The trial court had several questions for Dr. Harris regarding the functioning of WIC and appellant's involvement with that program.
The court asked what documentation would be made when a client came to the clinic. Dr. Harris responded that it would depend on whether the child was there for a visit. The trial court asked how food was distributed and whether a client had to bring the child to the center to obtain food. Dr. Harris answered that an infant would be put on the program for a year; the center asks to see the infant at six months to check iron levels and "make sure everything is okay." The trial court questioned Dr. Harris to ascertain that K.S. was on the program and that documentation would have been made if there was a formula change. Dr. Harris testified that, while benefits through WIC were good for a year, a client was only "allowed three months of benefits at a time." The trial court asked Dr. Harris to clarify whether appellant had gone to the center and received benefits in July. The trial court then questioned Dr. Harris as follows:
THE COURT: So would it be fair to say that since she didn't come in, in October and she would have had food up until October, that at that point if she had no food from you guys, there is a possibility that she wasn't feeding the baby?
THE WITNESS: I mean, that's possible.
THE COURT: Well, I'm just saying, if she didn't get food anywhere else and she didn't get it from you, there is a possibility that she was out of food and wasn't feeding the baby.
THE WITNESS: That - it's possible.
The trial court's questions to Dr. Harris were for the purpose of ascertaining and clarifying the access appellant had to food and medical care for K.S. through the WIC program and the efforts she made to obtain it. The trial court's questions were permissible.
Dr. Suzanne Dakil, Child Abuse Pediatrician
Dr. Dakil testified as the State's medical expert. During the course of her testimony, Dr. Dakil stated that feeding issues were not common for a full-term infant, though they could occur. She outlined several possibilities that would cause feeding issues: a problem with the child's "suck/swallow mechanism," dysphasia, reflux, food allergies, and a home environment where parents "just truly don't understand how children feed."
The trial court asked how often a seven-and-a-half month old child would need to be fed and what instructions, if any, mothers were given in a hospital. Dr. Dakil answered as to what a standard pediatrician would advise an infant's parents.
It is clear from the record that Dr. Dakil was never K.S.'s pediatrician.
The trial court asked Dr. Dakil if she had studied the "psychological side of why a parent might starve their child." Dr. Dakil answered that there were different factors, the primary one being bonding issues between a mother and child.
The trial court asked Dr. Dakil if it could be possible that a mother becomes severely detached due to other things going on with her life. Dr. Dakil answered as follows:
So I don't know exactly if I can answer that, but I think it's possible certainly in some cases of severe psychologic illness, people that are truly schizophrenic or have other hallucinatory behaviors or people that are using substances that cause those types of symptoms might really truly be unable to care for a child. And the intent might not be to actually cause harm, but the end result is the same.
Dr. Dakil testified that it is rare to see an infant die from malnutrition, because "[u]sually at some point they get to medical care." Dr. Dakil further testified that starvation is a slow process. In reviewing the postmortem pictures of K.S., Dr. Dakil testified that it would take "at least weeks" for a child to get into that condition and the child would not have energy to play; "I would be surprised if he moved at all." In her opinion, to lose that type of body mass "could happen in two to three months."
The trial court asked Dr. Dakil if she thought it was possible for a mother to be so disengaged because of psychological problems that "this could happen without her intentionally trying to starve her baby." The doctor answered as follows:
I don't know how...you could be so disengaged to not notice that something is wrong. Again, I don't know if I can answer to intent... But I know...it might be easy for a child to lose a little weight and not notice, but to get to this point, even close to this point and be so disengaged that you don't realize that his skin is hanging off, I think that - I'm not sure that you can get to that point. I don't know.The following exchange then occurred between the trial court and Dr. Dakil:
THE COURT: Would he even be able to crawl at that point?
THE WITNESS: No, he can't crawl like this. He's got no muscle to crawl.
THE COURT: So when --
THE WITNESS: He probably can't lift his head.
THE COURT: So when his little sister was carrying him that morning, she was pretty much carrying - I don't know if he was dead at that time - but she was pretty much carrying dead weight?
THE WITNESS: Yes.
THE COURT: I mean, nothing that could even move?
THE WITNESS: Yes.
Later, the trial court again questioned Dr. Dakil, after confirming that she was a child abuse pediatrician, as to why a mother would starve her child. Dr. Dakil struggled with her answer, which prompted the following exchange:
THE WITNESS: I would have to say it's a maternal infant bond issue, but why that happened, I mean, I think probably the best answer I could give would be significant mental illness.
THE COURT: But you did say a while ago, you said something about this, that a mother could be doing it without realizing she was doing it because of her - if she had mental issues.
THE WITNESS: And I think I would - in a world that makes sense to me, I'd have to think that's probably the most likely cause -
THE COURT: But it could be, on the other hand, that the mother doesn't want that baby and that seems an easy way out.
THE WITNESS: Yes.
THE COURT: I mean, we hate to think that, but that could be another reason.
THE WITNESS: I - Yes. And I think that's always my fear and why I don't, as a child abuse pediatrician, try to speak necessarily to the intent, I'm not a psychiatrist and I don't do a full psychiatric evaluation of the parents. That's usually left to someone else. So I don't...usually like to make presumptions about why, if they did it intentionally or not. It's usually left out of my evaluation. But my teaching would say...it's severe mental illness, whether that's...having hallucinations or delusions or truly being a psychopath and just not caring. And that's in my world all a different level of mental illness.
THE COURT: Okay. Okay. Thank you.
While the trial court questioned Dr. Dakil extensively, it is apparent that the court was seeking to understand how and why appellant could have either missed or failed to appreciate the gravity of her child's starving condition. The trial court was apparently also seeking information that might serve to mitigate appellant's ultimate punishment by specifically asking if the omissions which led to K.S.'s death could be caused by mental illness or disturbance. The trial court's questions were permissible.
Trial Court's Questions to Defense Witness Kiara Hamlett
Kiara Hamlett, appellant's aunt, had lived with appellant, appellant's mother and appellant's children for a "couple months" before K.S. died. Hamlett had also experienced difficulty feeding K.S., who could not keep food down: "[w]hatever he took in, it came back up." This was stressful for appellant and "took a toll." Hamlett thought that appellant believed it would get better and did not think that appellant knew how serious the situation was with her child.
The trial court showed Hamlett the post-mortem photographs of K.S. and asked Hamlett if a mother should take her child to the doctor "every day, every two days, if you see your baby deteriorating like that?" Hamlett said yes.
Hamlett admitted, in response to defense questioning, that she and appellant's mother probably could have done more for K.S. She testified that K.S. deteriorated rapidly between Thanksgiving when he was "small but he wasn't that small" and the day of his death.
The trial court asked whether Hamlett or appellant's mother had spoken to her about K.S.'s condition. Hamlett said she had:
We spoke about how she was, like, - well, I don't know, you know, they keep changing his milk, I don't know why he can't - maybe something wrong with him, but they keep - if they keep sending you home or they just changing you milk, at the same time, like I said, we young, we only can do what we know to do. We learning. And it's a learning process at the same time. I just wish we could have did more or I could have said more.When the trial court asked Hamlett what she would do if her child was like that, Hamlett replied: "I'd be sitting there at the hospital."
In a lengthy question to Hamlett, the trial court essentially asked how three adults - Hamlett, appellant, and appellant's mother - could have allowed K.S. to deteriorate to the point that he died. Hamlett did not have an answer for the court.
On cross-examination, Hamlett admitted that she knew K.S. needed medical attention. She told appellant a week before the child's death that he needed to go to the doctor. The trial court asked Hamlett the following: "When you told Ms. White that the baby needed to go to the doctor and you knew something was wrong, what was her response?" Hamlett said that appellant responded that she was right. The trial court followed up with a question asking why appellant did not do anything; Hamlett replied "I don't know."
The trial court emphasized during its questioning of Hamlett that it had a very serious decision to make and was trying to "weigh as much as I can." The apparent purpose of the court's questions was to gather as much information as possible to make a reasoned decision as to punishment. As such, the trial court's questions were permissible.
Trial Court's Questions to Appellant
Appellant testified that her pregnancy with K.S. had been normal, except for throwing up a lot, and her delivery was uncomplicated. When K.S. was five days old, appellant enrolled him in the WIC program to receive formula and food. K.S. was originally on a milk-based formula, "Similac Advanced, the blue can."
When K.S. was two months old he started vomiting his milk-based formula; he was not able to keep food down. She took him to WIC, where they told her to do "half and half," i.e., half Similac and half breast milk; she thought this was in June or July. Appellant did so, but K.S. could not hold that food down either. A couple of weeks later, she took him to the emergency room at Texas Presbyterian because she could see that K.S. "wasn't gaining weight like he's supposed to and he wasn't holding his milk down." Appellant was told that K.S. was lactose intolerant and a soy based formula was recommended.
Appellant, however, also testified that K.S. had not been "taking the bottle like he was supposed to at the hospital." The hospital suggested that she breast feed her child, which she did not want to do because she had not breast fed her two daughters.
The trial court then interrupted and questioned appellant as follows:
Our review of the record reflects that the trial court independently questioned appellant at least seven other times throughout her testimony at the punishment hearing. Appellant makes no complaint on appeal regarding those additional questions, but confines her arguments about the trial court's questioning to the above exchange. Consequently, we will neither set out those series of questions nor address the content of those questions.
THE COURT: Okay. I'm going to interrupt you. Okay. You took him to the emergency in July and then after that - and you said you could tell he was not gaining weight like he was supposed to. Then after that, when was the next time you took him back to the doctor?
THE DEFENDANT: In November the 23rd, the next -the day he was supposed to have his next WIC appointment.
THE COURT: And what did the doctor tell you about his nutrition?
THE DEFENDANT: They said he was - well, then when I went in July, they told me he was lactose intolerance when I had took him in July.
THE COURT: Okay. But you took him in November. Do we have records of that?
MS. PRICE: No, ma'am.
THE COURT: We have no records that you took that baby to the doctor in November. Can you tell me where you took that baby? That's very important.
THE DEFENDANT: I don't know if it was Texas Presbyterian, but I think it was a little doctor office that was across the street from Texas Presbyterian.
THE COURT: You don't even know where you took the baby, and your baby - your baby, at that point, is probably starving, at that point, to slowly end up like this. So it looks like after July, to me, - and if you had even enough food until October and - based on testimony that I've heard - you just gave up and never did anything else. Can you tell me why you couldn't see that your baby was dying? This baby suffered for at least 60 days in a nasty crib, tell me why you didn't take that doctor (sic) to the hospital every day 'till you got some answers. I'd be suing the entire medical profession. So did you just give up?
THE DEFENDANT: No, ma'am.
THE COURT: Well, why? Can you tell me why? You already said you could see he was losing weight, so if you thought he was losing weight then, what the hell did you think when this happened?
(No audible response).
THE COURT: I'm waiting for an answer. I mean, everything I've heard it looks like you just gave up, you just quit caring.
THE DEFENDANT: No.
THE COURT: Well, can you tell me what happened with you - let me back up a little bit. Have you ever suffered or been diagnosed with severe depression?
THE DEFENDANT: Yes.
THE COURT: By a doctor?
THE DEFENDANT: Oh, no.
THE COURT: Was there anything personal you were going through that you can tell me about?
THE DEFENDANT: I just - it was just - it was just I probably going through a lot of stuff just, you know, we - we didn't have it all, like we staying in the apartments and it was just hard for us. Everything I tried to do I tried to do because - to make sure my kids had a life, that they don't have to never depend on nobody, they ain't have to never ask anybody for nothing. And I didn't - since when I was growing up, I didn't - I had a lot of people that was there for me but it was just hard. My baby daddy, he was locked up and I was out there just taking care of -
THE COURT: Okay. I'm sorry to interrupt you, but how hard is it - I mean, how hard is it to pick that baby up and take him back to the doctor and - until some doctor - I mean, I even think they would have put this child in the hospital if you had taken this baby in two months prior to this death. This took two months to happen - two months. And so what were you thinking, ma'am?
THE DEFENDANT: Around Thanksgiving he wasn't even like that. And then the day before he died, me and my mom had gotten into it the prior day before he had died and she had told me to take him to the hospital and I told her I was going to take him to the hospital the next day because -
THE COURT: So are you telling me you and your mom got in a fight about taking this baby to the hospital?
THE DEFENDANT: Yes, ma'am.
THE COURT: And you still didn't do it?
THE DEFENDANT: Yes, I was. That was the prior day, the day before he had passed away and -
THE COURT: So that prior day before he passed away, did you take him to the hospital?
THE DEFENDANT: No. I was going to wake up -
THE COURT: Why?
THE DEFENDANT: I was going to wake up the next morning and take him to the hospital.
THE COURT: So you were more concerned with yourself than with that child?
THE DEFENDANT: No.
The trial court's questions to appellant were specifically directed to the efforts appellant had made to obtain proper medical care for K.S. By the time appellant took the stand, the trial court had already heard from all the other witnesses in the case.
Several of the trial court's questions were for the purpose of clarifying issues such as when and where appellant took K.S. to a doctor and clearing up inconsistencies in appellant's testimony and the testimony of other witnesses regarding the level of medical attention K.S. had received. Through other questions, the trial court was apparently trying to assess appellant's state of mind, her mental health, and her motive, if any, for denying nutrition and medical care to her child as well as trying to determine appellant's level of acceptance of responsibility for her actions. Questions directed at appellant's testimony about the efforts she made to nourish her child and seek medical attention for him were also relevant to whether appellant was a good candidate for community supervision. The trial court's questions were permissible.
This is particularly true since, if she were granted community supervision, appellant may have been able to regain custody of her two young daughters. As her aunt testified in asking for leniency for appellant: "she's been here long enough...she got two other kids and...they need their mother and they don't need to be in the system."
Conclusion
The trial court, through its questioning of appellant and other witnesses, did not become an advocate for the prosecution. While its questioning was at times robust, the trial court did not abandon its neutral and detached role required to assess an appropriate sentence. The trial court judge was the sole factfinder at the punishment hearing and, as such, had wide latitude to question any witness in order to obtain a clearer idea of the merits of the case so as to inform its punishment decision.
Additionally, although some of the court's questions may have gone beyond what was absolutely necessary for the trial court to make a reasoned decision as to punishment, we cannot conclude that, in the context of this case, the trial court's questions to any witness, including appellant, were improper. See Guin, 209 S.W.3d at 686-87 (holding that the trial judge did not commit fundamental error by questioning a defendant about his drug use after the witness had testified during the punishment phase that using alcohol and marijuana contributed to his offense, even though some of the judge's questions went beyond what was strictly necessary); see also Agee v. State, No. 03-01-00338-CR, 2002 WL 219874, at *2 (Tex. App. - Austin Feb. 14, 2002, pet. ref'd) (not designated for publication) (holding that in a bench trial where the judge was to assess punishment, the trial court did not commit fundamental error by questioning witnesses on issues that were raised in their testimony and that were relevant to punishment). The judge's questions were germane to assessing punishment and were not outside the boundaries of permissible questioning.
Additionally, the record does not reflect that the trial court, through its questioning of appellant and other witnesses, was formulating its own issues to use as a justification for its sentence. While the trial court assessed the maximum sentence, we cannot conclude, under the facts of this case, that the sentence was the result of any bias on the part of the trial court.
Because appellant has not demonstrated that the trial court judge's questions were so egregious as to demonstrate bias, we conclude that appellant has not shown fundamental error. See Hernandez, 268 S.W.3d at 185 (holding that trial judge's conduct rises to the level of fundamental error only if it is "so egregious as to deem the judge biased on the matter of punishment"). We accordingly overrule appellant's sole issue.
We overrule appellant's sole issue and affirm.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 170397F.U05
JUDGMENT
On Appeal from the 203rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F14-76807-P.
Opinion delivered by Justice Lang-Miers. Justices Fillmore and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 25th day of April, 2018.