Jock Colby Dominey v. State

ACCEPTED
12-14-00226-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
2/18/2015 12:08:41 AM
CATHY LUSK
CLERK
Cause No. 12-14-00226-CR
RECEIVED IN
12th COURT OF APPEALS
TYLER, TEXAS
In the Court of Appeals for the
2/18/2015 12:08:41 AM
Twelfth Judicial District at Tyler, Texas CATHY S. LUSK
Clerk
Jock Dominey,
Appellant 2/18/2015
v.
State of Texas,
Appellee
On Appeal from Cause No. 2014-0069 in the 159th
Judicial District Court of Angelina County, Texas
State’s Brief
April Ayers-Perez
Assistant District Attorney
Angelina County D.A.’s Office
P.O. Box 908
Lufkin, Texas 75902
(936) 632-5090 phone
(936) 637-2818 fax
State Bar No. 24090975
aperez@angelinacounty.net
Oral Argument Not Requested
Identity of Parties and Counsel
Jock Dominey, Appellant
John Boundy
Attorney for Appellant (trial)
3205 North University Drive
Nacogdoches, Texas 75865
John W. Tunnell
Attorney for Appellant (appeal)
P.O. Box 414
Lufkin, Texas 75902
Katrina Carswell
Attorney for the State (trial)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
April Ayers-Perez
Attorney for the State (appeal)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
ii
Table of Contents
Identity of Parties and Counsel ................................................................................. ii
Table of Contents ..................................................................................................... iii
Index of Authorities ................................................................................................. iv
Statement Regarding Oral Argument........................................................................ v
Issue Presented .......................................................................................................... v
Statement of Facts ..................................................................................................... 1
Summary of the Argument........................................................................................ 1
Argument .................................................................................................................. 1
Reply Issue #1: Appellant was not denied his right to a neutral and fair
magistrate, in violation of the Due Process Clause of the United States and Texas
Constitution, at his sentencing hearing……………………………………………..1
Applicable law ...................................................................................... 2
Past Precedent on Judicial Bias ............................................................ 3
Judge Goodwin did not display judicial bias........................................ 4
Prayer ........................................................................................................................ 5
Certificate of Compliance ......................................................................................... 6
Certificate of Service ................................................................................................ 6
iii
Index of Authorities
Cases Page
Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App. 2000). ...................................... 2
Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). ..................................................... 2
Brewer v. State, 572 S.W.2d 719, 721 (Tex.Crim.App. 1978). ............................ 2, 3
Brumit v. State, 206 S.W.3d 639, 645 (Tex.Crim.App. 2006), ................................ 2
Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). ....................................................... 2
Hart v. State, 447 S.W.2d 944. ................................................................................. 2
Peterson v. State, 2013 WL5776287 (Tex.App. – Dallas, 2013) ......................... 2, 3
Thompson v. State, 641 S.W.2d 920, 921 (Tex.Crim.App. 1982). ........................... 2
Rules
Tex. R. App. P. 9.4(i)(1) ........................................................................................... 6
Tex. R. App. P. 39.1.................................................................................................. v
iv
Statement Regarding Oral Argument
Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is
unnecessary, as the facts and legal arguments are adequately presented in the briefs
and record and the decisional process would not be significantly aided by oral
argument.
Issue Presented
Reply Issue #1: Appellant was not denied his right to a neutral and fair
magistrate, in violation of the Due Process Clause of the United States and Texas
Constitution, at his sentencing hearing.
v
Statement of Facts
The facts in appellant’s brief are sufficient, and appellee, State of Texas,
stipulates to them.
Summary of the Argument
The appellant, Jock Dominey, was not denied his right to a neutral and fair
magistrate at his sentencing hearing. Although the trial court judge did question
the appellant during the sentencing hearing, it was for clarification purposes. The
court is allowed to question a witness as long as the court maintains impartiality.
The court considered the evidence and the full range of punishment prior to
sentencing the appellant, the court questioned all the witnesses and sentenced the
appellant to significantly less time than was even offered as a plea bargain by the
state.
Argument
Reply Issue #1: Appellant was not denied his right to a neutral and fair
magistrate, in violation of the Due Process Clause of the United States and Texas
Constitution, at his sentencing hearing.
1
Applicable law
“Due process requires a neutral and detached hearing body or officer.”1
“Absent a clear showing of bias, a trial court’s actions will be presumed to have
been correct.”2 Even in the event that a court’s questioning of a witness is
assumed to be, or appears to be, erroneous, if no fundamental constitutional right
was affected then an objection would be required to preserve the error.3 When no
objection is made to the conduct of the trial court in questioning a witness, the
conduct cannot be subsequently challenged unless it is fundamentally erroneous.4
The Trial Court is allowed to question a witness as long as the Trial Court
maintains an impartial attitude.5 “Due process requires a ‘fair trial in a fair
tribunal’ before a judge ‘with no actual bias against the defendant or interest in the
outcome of his particular case.’”6 In cases where a claim of judicial bias is made
the Appellate Court looks to the record to determine if it shows a judge’s bias
denied the defendant due process of law.7 “A trial judge’s comments indicate






























































1
Brumit v. State, 206 S.W.3d 639, 645 (Tex.Crim.App. 2006), citing Gagnon v.
Scarpelli, 411 U.S. 778, 786 (1973).
2
Id., citing Thompson v. State, 641 S.W.2d 920, 921 (Tex.Crim.App. 1982).
3
Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App. 2000).
4
Brewer v. State, 572 S.W.2d 719, 721 (Tex.Crim.App. 1978), citing Hart v. State, 447
S.W.2d 944.
5
Brewer v. State, 572 S.W.2d 719, 721 (Tex.Crim.App. 1978).
6
Peterson v. State, 2013 WL5776287 (Tex.App. – Dallas, 2013) citing Bracy v.
Gramley, 520 U.S. 899, 904-05 (1997).
7
Id.
2
partiality or bias if the comments reveal the judge determined a sentence without
considering the evidence or the full range of punishment.”8
Past Precedent on “Judicial Bias”
In Brewer v. State the appellant, in his first point of error, claimed that the
trial court departed “from its role as a neutral and detached hearing body and
questioning witnesses in a prosecutorial manner, violated the appellant’s right to
due process of law.”9 In addition, the appellant did not raise any objections to the
trial court’s questioning of the witnesses.10 The Court of Criminal Appeals held
that, not only were the questions addressed to the witnesses proper, but the
questioning of the court cannot be subsequently challenged because it is not
fundamentally erroneous.11 Subsequently, in Peterson v. State, the trial judge
questioned and chastised the defendant , cutting the defendant off and calling the
defendant a “disgrace” to the judge and the United States Army.12 The Court of
Appeals, while not condoning the trial judge’s conduct, concluded that it did not
rise to the level of judicial bias.13






























































8
Id.
9
Brewer, 572 S.W.2d 719 at 721.
10
Id.
11
Id.
12
Peterson, 2013WL5776287 at 2.
13
Id.
3
Judge Goodwin did not display judicial bias
The appellant acknowledged during the sentencing hearing that he had
been on drugs for a significant amount of time.14 Appellant also acknowledged
that he was currently on parole for drug offenses and his new charge that he was
being sentenced for was for drug charges.15 Appellant then spoke to the fact that,
although he had at one point been a trusty, he was no longer a trusty at the
Angelina County Jail.16 When the trial court judge, Judge Goodwin, questioned
appellant as to why he is no longer a trust appellant was evasive with his answer.,
referring to passing out trays of food and “other things”.17 It was at this point that
Judge Goodwin pressured more, questioning the appellant about drug tests while in
jail.18 The extra questioning about drug tests, which appellant contends shows
judicial bias, is a direct result of the appellant’s evasiveness with his answer and
drug history that had already been established.19 Further, Judge Goodwin had
questioned, to some degree, almost all of the witnesses who took the stand in this
sentencing hearing, not just the appellant.20 It is much more likely that it was






























































14
VI R.R. at 33.
15
Id.
16
Id. at 35-38.
17
Id.
18
Id.
19
Id.
20
Id.
4
experience with criminal defendants, not outside knowledge, that led Judge
Goodwin to question whether the appellant had taken a drug test or not. That level
of experience with the criminal world does not amount to judicial bias nor does it
amount to a fundamental error needing reversal. The appellant had the opportunity
to object to the questioning and failed to do so.21
Prayer
The State of Texas prays that this Court of Appeals affirm the judgment of
the trial court.






























































21
Id.
5
Respectfully Submitted,
/s/ April Ayers-Perez
Assistant District Attorney
Angelina County D.A.’s Office
P.O. Box 908
Lufkin, Texas 75902
(936) 632-5090 phone
(936) 637-2818 fax
State Bar No. 24090975
ATTORNEY FOR THE
STATE OF TEXAS
Certificate of Compliance
I certify that this document contains 784 words, counting all parts of the
document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in
14 point font, and the footnote text is in 12 point font.
/s/ April Ayers-Perez
Certificate of Service
I certify that on February 17, 2015, a true and correct copy of the above
document has been forwarded to John Tunnell, by electronic service through
efile.txcourts.gov.
/s/ April Ayers-Perez
6