William McKinley Decker Sr v. State ( 2020 )

Affirmed as Modified; Opinion Filed February 10, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01259-CR
WILLIAM MCKINLEY DECKER, SR., Appellant
V.
THE STATE OF TEXAS, Appellee
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.
1
The Hon. Martin Richter, Justice, Assigned
2
“Allocution” refers to a trial judge affording a criminal defendant the opportunity to “present his personal plea to the Court in mitigation of
punishment before sentence is imposed.” McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974) (op. on reh’g).
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 when
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telling 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 judge
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or 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
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“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 of
3
In pronouncing appellant’s guilt, the trial court stated, “All right. The defendant having plead guilty, the Court finds him guilty.
The defendant has admitted starting a sexual contact with his five-year old daughter because of sexual dissatisfaction with his wife,
admitted to digital penetration, vaginal and anal sex with the same daughter. The defendant also asked probation about the possibility
of transferring to another state because he woundn’t be able to – he would have a hard time refraining from sex with our victim.”
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punishment 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 court did not display bias or
prejudice towards appellant thereby establishing a detachment from his role as a neutral and
detached hearing officer. Accordingly, we overrule appellant’s first issue.
II. Allocution
In his second and third issues, appellant claims the trial court violated his statutory and
claimed common-law rights to allocution. The term “allocution” refers to a trial judge’s asking a
criminal defendant to speak in mitigation of the sentence to be imposed. Williamson v. State, No.
05-17-00411-CR, 2018 WL 388025, at *3 (Tex. App.—Dallas Jan. 12, 2018, pet. ref’d) (mem.
op., not designated for publication) (citing Eisen v. State, 40 S.W.3d 628, 631–32 (Tex. App.—
Waco 2001, pet. ref’d) (quoting A Dictionary of Modern Legal Usage 44–45 (Bryan A. Garner
ed., 2d ed., Oxford 1995)).
4
See, e.g., Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. 1978); Hall v. State, No. 05-18-00442-CR, 2019 WL 3955772, at *2 n.1
(Tex. App.—Dallas Aug. 22, 2019, pet. ref’d) (mem. op., not designated for publication); Speights v. State, No. 06-19-00019-CR, 2019 WL
3417362, at *2 (Tex. App.—Texarkana July 30, 2019, no pet.) (mem. op., not designated for publication); Gay v. State, No. 13-16-00158-CR, 2017
WL 2705446, at *1 (Tex. App.—Corpus Christi–Edinburgh June 22, 2017, no pet.) (mem. op., not designated for publication); Gallegos-Perez v.
State, No. 05-16-00015-CR, 2016 WL 6519113, at *2 (Tex. App.—Dallas Nov. 1, 2016, no pet.) (mem. op., not designated for publication); Norton
v. State, 434 S.W.3d 767, 771 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Jarvis v. State, 353 S.W.3d 253, 254 (Tex. App.—Fort Worth 2011,
pet. ref’d); Eisen v. State, 40 S.W.3d 628, 637 (Tex. App.—Waco 2001, pet. ref’d.); Nicholson v. State, 738 S.W.2d 59, 63 (Tex. App.—Houston
[1st Dist.] 1987, no pet.); Miles v. State, 688 S.W.2d 219, 227 (Tex. App.—El Paso 1985, pet. ref’d); Hernandez v. State, 628 S.W.2d 145, 147
(Tex. App.—Beaumont 1982, no pet.).
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While the right of allocution is not constitutionally grounded, the United States Supreme
Court has recognized that the right to allocution is a common-law right. Green v. Unites States,
365 U.S. 301, 304 (1961). That common-law right was recognized in Texas at least until the
enactment of section 42.07 of the Texas Code of Criminal Procedure. See Clare v. State, 54
S.W.2d 127, 129 (Tex. Crim. App. 1932) (op. on reh’g). In 1965, the Texas Legislature codified
a statutory-version of the right of allocution. See TEX. CODE CRIM. PROC. ANN. art. 42.07
(requiring that the defendant be asked, before sentence is pronounced, “whether he has anything
to say why the sentence should not be imposed against him.”). Following the enactment of code
of criminal procedure article 42.07, the questions of whether the statute encompassed the same
scope as the former common-law practice, or, if not, supplanted any potential broader reach of the
common-law right remained unanswered. See, Hall v. State, No. 05-18-00442-CR, 2019 WL
3955772, at *2 n.1 (Tex. App.—Dallas Aug. 22, 2019, pet. ref’d) (mem. op., not designated for
publication) (Schenck, J., concurring). As it stands, the statute is framed in two parts, with the
first appearing to impose no limit on what the defendant might say, and the second constraining
what the judge might act upon, limiting him or her to the enumerated legal bars to the
pronouncement of sentence. CRIM. PROC. art. 42.07. So read, the statute would only conflict with
the common law if the common law in fact permitted a judge to act more broadly, in which case,
article 1.27 of the code of criminal procedure may provide for continued application of the
common-law right. Id. art. 1.27.5
We are not postured to answer these questions in this case, however. The record here
shows that after hearing punishment evidence, the trial court pronounced sentence without first
5
However, in Tenon v. State, the court of criminal appeals declined to address the appellant’s contention that article 42.07 did not replace the
common law right of allocution, and, in addition to noting appellant failed to preserve her allocution complaint, noted that there was no contention
that any of the statutory reasons set forth in article 42.07 to prevent the pronouncement of sentence ever existed. 563 S.W.2d 622, 623 (Tex. Crim.
App. 1978) (panel op.). The court concluded, “Surely appellant would not have this court reverse this cause and order a new sentencing so that
when the court asks her if she has anything to say why sentence should not be pronounced against her she can then answer, ‘Nothing.’” Id. at 624.
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asking appellant whether he had anything to say in mitigation. However, to complain on appeal
of the denial of the right of allocution, whether statutory or one claimed under the common law,
controlling precedent requires that a defendant timely object. See Gallegos-Perez v. State, No. 05-
16-00015-CR, 2016 WL 6519113, at *2 (Tex. App.—Dallas Nov. 1, 2016, no pet.) (mem. op., not
designated for publication) (citing Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. 1978)
(panel op.); McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974)). We are compelled
to overrule appellant’s second and third issues.
III. Judgment
The State, by cross-issue, asserts this Court should modify the judgment to include an
affirmative finding that the victim was younger than 14 years of age.
Aggravated sexual assault is a sexually violent offense. CRIM. PROC. art. 62.001(6)(A). In
the trial of a sexually violent offense, the judge shall make an affirmative finding of fact and enter
the affirmative finding in the judgment in the case if the judge determines that the victim or
intended victim was younger than 14 years of age at the time of the offense. Id. art. 42.015(b).
The judgment for a sexually violent offense should reflect this finding in addition to any statement
of the victim’s age that is entered in judgments of conviction for registrable offenses. Id. art. 42.01,
§ 7. An affirmative finding that the victim was younger than 14 years old triggers the prohibited-
employment provisions of the sex-offender-registration program. Id. art. 62.063(b).
The trial court found appellant guilty of aggravated sexual assault of a child younger than
14, an offense for which a victim younger than 14 years of age is an element. PENAL
§ 22.021(a)(2)(B). Having determined F.D. was younger than 14 years old at the time of the
offense, the trial court was required to enter an affirmative finding to that effect in the judgment.
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).
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Accordingly, we sustain the State’s cross-issue and modify the trial court’s judgment to reflect an
affirmative finding that the victim was younger than 14 years of age at the time of the offense.
CONCLUSION
As modified, we affirm the trial court’s judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 47
181259F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WILLIAM MCKINLEY DECKER SR, On Appeal from the Criminal District Court
Appellant No. 4, Dallas County, Texas
Trial Court Cause No. F-1730527-K.
No. 05-18-01259-CR V. Opinion delivered by Justice Schenck.
Justices Whitehill and Richter participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
To reflect an affirmative finding that the victim was younger than 14 years of age
at the time of the offense.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 10th day of February, 2020.
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