Michael Joseph Alvarado v. State ( 2020 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00223-CR
MICHAEL JOSEPH ALVARADO,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2014-389-C1
MEMORANDUM OPINION
Michael Joseph Alvarado appeals from a judgment of conviction for the offense of
aggravated assault on a public servant. TEX. PENAL CODE ANN. § 22.02. Alvarado
complains that the trial court abused its discretion by denying his motion for continuance
and that his due process right to an impartial judge was violated because of comments
the trial court made to Alvarado's attorneys during the trial in the presence of the jury.
Because we find no reversible error, we affirm the judgment of the trial court.
MOTION FOR CONTINUANCE
In his first issue, Alvarado complains that the trial court abused its discretion by
denying his written motion for continuance filed shortly before the trial. Motions for
continuance in criminal proceedings must be in writing and set forth sufficient cause for
the continuance. TEX. CODE CRIM. PROC. ANN. art. 29.03. Additionally, "[a]ll motions for
continuance must be sworn to by a person having personal knowledge of the facts relied
on for the continuance." Id. art. 29.08. A motion for continuance that is not sworn
preserves nothing for appellate review. See Anderson v. State, 301 S.W.3d 276, 279 (Tex.
Crim. App. 2009). Alvarado's motion, while written, is not sworn, and therefore did not
preserve this alleged error. We overrule issue one.
IMPARTIAL JUDGE
In his second issue, Alvarado complains that his due process right to an impartial
judge was violated due to 12 comments made by the trial court to his two attorneys
during the guilt-innocence phase and 1 comment made during the punishment phase of
the four-day trial. Alvarado complains that the comments were improper and were
insulting and demeaning to his trial counsel, which showed that the trial court was not
fair and impartial. Three of the complained-of comments occurred during voir dire,
when the trial court interrupted counsel's explanations to the jury to explain legal terms
or to clarify questions or comments made by counsel. The other nine occurred at various
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times during the evidentiary portion of the guilt-innocence phase of the trial, and the last
during questioning of a witness during the punishment phase of the trial.
A trial judge's comments must not be made in a manner that conveys his opinion
of the case to the jury as "[j]urors are prone to seize with alacrity upon any conduct or
language of the trial judge which they may interpret as shedding light upon his view of
the weight of the evidence, or the merits of the issues involved." Brown v. State, 122
S.W.3d 794, 798 (Tex. Crim. App. 2003) (internal citations omitted). The most common
complaint regarding the impartiality of the trial court involves improper comments on
the weight of the evidence by a trial judge, which occurs if the trial judge makes a
statement that implies approval of the State's argument, indicates disbelief in the
defense's position, or diminishes the credibility of the defense's approach to the case.
Simon v. State, 203 S.W.3d 581, 590 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
However, "a trial judge's irritation at the defense attorney does not translate to an
indication as to the judge's views about the defendant's guilt or innocence. . . . A trial
judge has broad discretion in maintaining control and expediting the trial." Jasper v. State,
61 S.W.3d 413, 421 (Tex. Crim. App. 2001).
Alvarado does not argue in his brief that the trial court's comments constituted a
statutory violation of Article 38.05 of the Code of Criminal Procedure. TEX. CODE CRIM.
PROC. ANN. art. 38.05. Article 38.05 requires a trial court not to "comment on the weight
of the evidence" or make "any remark calculated to convey to the jury his opinion of the
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case." His arguments are limited to a Constitutional due process violation of his right to
an impartial judge. See Arizona v. Fulminante, 499 U.S. 279, 309 (1991).
While some of the comments by the trial court may have been inartfully expressed
or showed the trial court's irritation with defense counsel, we do not find that any of the
comments, taken individually or as a whole, rise to the level of a due process violation
such that Alvarado was denied a fair trial by an impartial judge. Because we find that
Alvarado was not denied his right to an impartial judge, we overrule issue two.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed March 11, 2020
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