I'm working on Appellee's Brief on behalf of the State, in a case where the Judge incorrectly qualified the venire on their ability to consider probation and a range of punishment of 2-20 years. But the case at hand was two counts of aggravated sex assault of a child under 14 years, where probation would not be an option and the correct range was 5-99 or life. The Defendant did not preserve error by objecting, but argued for probation during the punishment phase (after the jury found Defendant guilty on both counts of agg. sex assault of a child). The Defendant now appeals on this issue as structural error requiring reversal.

Has anyone experienced a similar issue? Any feedback is appreciated!

Were there potential lesser included offenses that would authorize the lower punishment range? That would be my first thought for why it would be included in voir dire.

Yes, potentially there were underlying lessers (indecency). Thank you for pointing that out!

A Judge going into the nitty-gritty of voir dire questioning is something new to our jurisdiction. Though it may be the practice on the federal side, it's just not something we're used to State-level judges doing. Probably for this very reason of giving the appearance of partiality.

So, the trial judge required the prospective jurors to agree to consider a lesser form of punishment for the charged offense than allowed by the law. I can understand why that would not draw any objection from defense counsel, as only the State was being harmed. That defense counsel later argued for a community supervision recommendation that would be meaningless under art. 42.12 sec. 4(d)(5) would not create any harm. While it appears your judge may have failed in his duty to insure that the issues were clearly presented to the jury, there was no structural error involved in the instructions given by the court during voir dire. What authority is cited for that proposition? Cf. Sharpe, 648 S.W.2d at 706.

Same thinking here. The only effect was to the detriment of the State. But the Appellant is generally arguing that the tone the Judge used (through italicized emphasis on select words) and his inaccurate statements showed bias, and thus is a structural error exempt from harmless error analysis in Ex parte Fierro 934 SW2d at 372 (also Cain v. State 947 SW2d 264, and Abdygapparova v. State 243 SW3d 191).

I may add there was no actual harm to the State. Appellant received two consecutive life sentences.

The Court of Appeals will be looking at a cold record so a litigant's emphasis is inadequate to establish the trial court's "tone". If there is bias at all it would be in favor of the defendant. To truly establish bias of the trial court for structural error there would have to be other instances throughout the trial. Without a pattern of conduct, the voir dire could show the trial court's anticipation of a lesser included offense instead of being biased. I am curious, did the trial court include probation as a possible verdict in the court's charge?

The Appellant's brief doesn't complain of any other trial court statements, besides the few select comments made during voir dire. A pattern is not apparent.

Probation was included in the court's sentencing charge. What was a big oversight on the part of my predecessor prosecutors, now seems to be good evidence against Appellant's complaint of bias.