# Hergert v. State

> Texas Court of Appeals, 9th District (Beaumont) · June 28, 2006 · 197 S.W.3d 394

URL: https://www.frixlaw.com/law-library/cases/9620645

## Case

- **Full name:** Tracy Scott HERGERT, Appellant, v. the STATE of Texas, Appellee
- **Court:** Texas Court of Appeals, 9th District (Beaumont)
- **Decided:** June 28, 2006
- **Citations:** 197 S.W.3d 394; 2006 Tex. App. LEXIS 5669; 2006 WL 1779448
- **Precedential status:** Published
- **Opinion:** Dissent by Horton
- **Judges:** McKeithen, Kreger, Horton
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

HOLLIS HORTON, Justice,
dissenting.
Hergert complains that during the course of a combined adjudication-punishment hearing the judge exhibited bias. He further contends he should not be sentenced by a biased judge. The majority holds that we cannot review the error because the evidence to which Hergert points is not directly, distinctly, and only related to punishment, and cites Hogans v. State, 176 S.W.3d 829 (Tex.Crim.App.2005) as authority for the test it applies.
I disagree that we cannot review Her-gert’s alleged error on appeal. I further disagree that Hogans holds that the proffered evidence must relate only to punishment before the complaint is cognizable on appeal. In my opinion, Hergert’s complaint that a biased trial judge sentenced him directly and distinctly relates to punishment.
The hearing in this case was both an adjudication and punishment hearing. Often in reviewing a hearing transcript, an appellate court may have difficulty in parsing the motives of the attorneys offering the evidence, the reasons the trial judge may have considered certain evidence relevant, or irrelevant, or the weight given by the trial court to the proffered evidence, if any, in its decision to adjudicate. Under the majority’s interpretation of Hogans , the evidence must not only directly and distinctly relate to punishment, but be directly, distinctly, and solely related to punishment.
If the Court of Criminal Appeals standard requires that the proffered evidence *401 be solely relevant to punishment and without any relevance to adjudication, it would not have been necessary that the Court analyze whether the allegation of ineffective assistance in Hogans was “rooted” in the adjudication hearing. See Hogans, 176 S.W.3d at 834 . Additionally, the Hogans Court criticized as “too extreme” the State’s position that the defendant could not assert that the proffered evidence related to his punishment because he offered the evidence in the adjudication phase. Id. at 833 . The majority’s analysis here, requiring that the proffered evidence be solely relevant to punishment, is just as extreme.
Under the circumstances in Hogans , the Court of Criminal Appeals held that the proffered evidence was directly and distinctly related to the decision to adjudicate, and not to the assessment of punishment. Id. at 836 . In Hogans , the defendant contested the grounds of the State’s claim that he violated the terms of the court’s community supervision order. Id. at 831 . Thus, the issue of whether Hogans violated the community supervision order was a viable issue. The evidence in issue, testimony from Hogans’s children that tended to rebut his self-defense claims, occurred during the adjudication phase of his case.
In my opinion, Hogans requires that appellate courts examine the record and make a judgment regarding whether the trial judge considered the evidence for purposes of adjudicating guilt, or for purposes of adjudicating punishment. Under Hogans , the alleged error is cognizable on appeal if “the asserted error [] directly and distinctly concernís] the second phase; [and] the claim must, on its face, relate to the sentence imposed, not the decision to adjudicate.” Id. at 834 .
In the case before us, Hergert pled true to violating the terms of the community supervision order by failing to complete a court-ordered program at SAFPF. Thus, his innocence was not a viable issue. At the hearing, but prior to the judge’s making an adjudication decision, Hergert’s attorney requested that the court allow Her-gert to explain why he did not comply with the terms established for his deferred adjudication. After offering his explanation, Hergert said, “I’m asking you to consider revoking my probation and give me the minimum sentence you think is fair.” Short of Hergert’s attorney stating that the proffered evidence was offered solely on the issue of Hergert’s punishment, I cannot imagine how it could be clearer that the purpose of the proffered evidence was for the court’s consideration in assessing Hergert’s punishment.
The majority holds that because the judge could have theoretically considered this same evidence in adjudicating Her-gert’s guilt, the evidence does not separately and distinctly relate to punishment. I concede that in a theoretical sense this evidence could be relevant to the trial court’s decision to adjudicate, but in reality, it was not because Hergert pled true to the State’s allegations. In my opinion, Hogans only requires that appellate courts make a judgment about whether the evidence directly and distinctly, but not solely, relates to punishment. My judgment is that Hergert’s complaint directly and distinctly relates to punishment, so I disagree that we cannot review Hergert's claim on appeal.
Although I would hold that a claim that a trial court is biased directly and distinctly relates to punishment, and disagree with the majority that Hergert’s claim is not subject to our review, the record does not show bias sufficient to constitute a violation of Hergert’s right to due process. The trial court’s comments in response to Hergert’s explanation for not completing *402 his treatment program do not demonstrate any improper or prohibited bias of the trial court sufficient to constitute a denial of Hergert’s due process rights. Wesbrook v. State, 29 S.W.3d 103, 121 (Tex.Crim.App.2000). “Bias must come from an extrajudicial source and result in an opinion on the merits of the case other than what the judge learned from participation in the case.” Grimes v. State, 135 S.W.3d 803, 819 (Tex.App.-Houston [1st Dist.] 2004, no pet.); Rosas v. State, 76 S.W.3d 771, 774 (Tex.App.Houston [1st Dist.] 2002, no pet.). As a result, I agree that the judgment should be affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9620645. Public record. Not legal advice.