Kendrick L. Bess v. the State of Texas

Opinion issued March 17, 2026

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00411-CR
NO. 01-24-00412-CR
———————————
KENDRICK L. BESS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1752816
Trial Court Case No. 1752758

MEMORANDUM OPINION

A jury convicted Kendrick L. Bess of aggravated assault of a family member

(Trial Court Case No. 1752816; 01-24-00411-CR) and possession of a controlled

substance, methamphetamine, weighing more than 4 grams and less than 200
grams by aggregate weight (Trial Court Case No. 1752758; 01-24-00412-CR). See

TEX. PEN. CODE § 22.02 (aggravated assault); TEX. HEALTH & SAFETY CODE

§ 481.115 (possession of controlled substance). Both charges were enhanced with

allegations that Bess had previously been convicted of aggravated assault with a

deadly weapon and evading arrest or detention with a motor vehicle. Bess pleaded

true to the enhancement allegations, and the trial court assessed punishment of 30

years in prison for each conviction, to run concurrently.

In a single issue on appeal, Bess argues that the trial court’s comments and

questions throughout the trial deprived him of due process under the United States

Constitution. We affirm.

Background

Three days after Christmas, Houston Police Department officers responded

to a 911 call at the apartment of complainant, Elisha Hawkins. She told the officers

that Bess, her boyfriend, had choked her, held a gun to her head, and threatened to

kill her after she refused to have sex with him because she felt sick. She also told

them that he had been heavily using illegal drugs. A pat-down search revealed that

Bess was in possession of loaded gun and a prescription bottle with a peeled-off

label that contained methamphetamine. Bess was indicted and charged with

aggravated assault of a family member and possession of a controlled substance.

He pleaded not guilty, and his case was tried to a jury.

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During voir dire, the trial court instructed the venire panel about the State’s

burden to prove guilt beyond a reasonable doubt, noting several times that the jury

must presume that the defendant is not guilty until proven otherwise. The judge

explained the State’s burden of proof and twice referred to the indictment as the

court’s charging tool, admonishing the venire members to remember that the

indictments do not “prove anything.”

Throughout the trial, the judge occasionally summarized prior testimony,

especially after testimony had been interrupted by objections, repeated previously

asked questions or asked his own questions of the witnesses, and made brief

comments when ruling on objections. Before the defense attorney cross-examined

the complainant, the judge instructed her to answer the defense attorney’s

questions directly. Bess did not object to the trial court’s comments and questions

or its statements in voir dire.

The jury found Bess guilty of both charges. The trial court assessed

punishment at 30 years in prison on each charge, and Bess appealed.

Analysis

In a single issue on appeal, Bess argues that he was deprived of due process

because the trial court’s comments and questions throughout trial demonstrate that

he did not receive a fair trial because the judge was not impartial.

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I. Multifarious Issue

The State asserts that the appellant’s issue is multifarious because it

combines multiple contentions of error by the trial judge and arguments about both

statutory and constitutional violations. Thus, the State argues, the sole issue should

be overruled.

“When an appellant bases a single point of error on more than one legal

theory or specific ground, the point of error is multifarious.” Thomas v. State, 615

S.W.3d 552, 566 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (citing Davis v.

State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010)). We may disregard and refuse

to review multifarious issues, but we may also elect to consider such points of error

in the interest of justice and if we can determine with reasonable certainty the error

about which the appellant complains. Davis, 329 S.W.3d at 803 (“Because

appellant bases his single point of error on more than one legal theory, his entire

point of error is multifarious. . . . We will, however, review his arguments in the

interest of justice.”); Thomas, 615 S.W.3d at 566; Stults v. State, 23 S.W.3d 198,

205 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (“[W]e may also elect to

consider [multifarious points of error] if we are able to determine, with reasonable

certainty, the alleged error about which the complaint is made.”).

Here, Bess has identified multiple instances of comments or questions made

by the trial judge during trial. While his statement of the relevant law focuses on

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constitutional due process, he has also quoted Article 38.05 of the Texas Code of

Criminal Procedure, a statutory prohibition against the trial judge commenting on

the weight of admissible evidence and making “any remark calculated to convey to

the jury his opinion of the case.” TEX. CODE CRIM. PROC. art. 38.05. His caselaw,

however, argues only about a violation of due process without addressing Article

38.05.

Further, he argues that it is the cumulative effect of all the trial judge’s

comments that deprived him of a fair trial. Even though his sole issue is a

challenge to multiple instances of the trial judge making comments or questioning

witnesses, we can determine from his argument, with reasonable certainty, that

Bess is complaining about the denial of due process based on the combined effect

of (1) the judge’s comments in voir dire, (2) comments that Bess contends

constitute testifying for witnesses, and (3) comments that Bess contends were

directed at his counsel. We decline the State’s invitation to overrule Bess’s sole

issue as multifarious, and in the interest of justice, we will review Bess’s

arguments. See Davis, 329 S.W.3d at 803; Thomas, 615 S.W.3d at 566; Stults, 23

S.W.3d at 205.

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II. Due Process Right to an Impartial Judge

A. Preservation of Error

Bess concedes that he did not object at trial to any of the challenged

statements or questions made by the trial judge. “With very few exceptions, a party

may not complain on appeal about a trial error unless the party made a

contemporaneous objection.” Rodriguez v. State, No. 01-23-00664-CR, — S.W.3d

–, 2025 WL 1335328, at *1 (Tex. App.—Houston [1st Dist.] May 8, 2025, pet.

ref’d) (citing Proenza v. State, 541 S.W.3d 786, 797 (Tex. Crim. App. 2017)). In

Rodriguez, this Court explained that while the Court of Criminal Appeals

determined in Proenza that an appellant need not object at trial to argue on appeal

about a violation of article 38.05 of the Code of Criminal Procedure, the Court of

Criminal Appeals “made no pronouncement on the preservation requirements for a

complaint that a trial court’s comments violated the due process protections of the

federal constitution.” Rodriguez, 2025 WL 1335328, at *4. In that case, we

“assum[ed] without holding, that the appellant may raise his due-process complaint

without a trial objection,” and we considered the merits of the appellant’s

arguments. Id. at *5. We follow the approach used in Rodriguez, and we assume

without holding that Bess may raise his due process complaint in our court despite

the lack of contemporaneous objections.

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We limit our analysis to those specific comments that Bess actually argues

about in his brief. These are (1) the judge’s comments in voir dire that the

defendant is presumed not guilty until proven otherwise and that the indictment is

the court’s charging tool; (2) the judge’s comments that Bess contends constitute

testifying for the witnesses (saying he thought Bess was handcuffed, and saying,

“So she’s feeling bad, and he wants some action”); and (3) the judge’s comments

that Bess contends were aimed at his counsel (comments made after denying

counsel’s request to approach the bench, after denying an objection that a witness’s

answer was nonresponsive, and before cross-examination of the complainant).

Although he lists additional comments in the background of his brief, he does not

make any specific argument about many of them, and we may not make arguments

on his behalf. See Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995)

(“From appellant’s brief, we cannot discern his specific arguments, and we will not

brief appellant's case for him.”); Mayweather v. State, 722 S.W.3d 116, 120 (Tex.

App.—Houston [1st Dist.] 2025, no pet.) (“By claiming the evidence is insufficient

without explaining how, the appellant is inviting us to make arguments for him.

Doing so would require abandoning our role as impartial arbiter, so we decline the

invitation.”).

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B. Due Process Standards

The Fourteenth Amendment provides that the State may not “deprive any

person of life, liberty, or property, without due process of law.” U.S. CONST.

amend. XIV. “A neutral and detached judge is one of the minimum requirements

of due process in criminal proceedings.” Avilez v. State, 333 S.W.3d 661, 673

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); see, e.g., Ward v. Vill. of

Monroeville, Ohio, 409 U.S. 57, 62 (1972) (due process requires “neutral and

detached judge”); Brumit v. State, 206 S.W. 3d 639, 645 (Tex. Crim. App. 2006)

(“Due process requires a neutral and detached hearing body or officer.”). “When a

claim of judicial bias is raised, we review the entire record to determine whether

the judge’s bias or prejudice denied the defendant due process.” Riggins v. State,

714 S.W.3d 74, 90 (Tex. App.—Houston [1st Dist.] 2023, pet. ref’d) (citing

Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007,

pet. ref’d)). “The test for determining whether a trial court’s comments violate

federal due process protections is 1) whether the comments were improper and, if

so, 2) whether the complaining party can show serious prejudice.” Rodriguez, 2025

WL 1335328, at *5.

“Absent a clear showing of bias, we presume a trial court is neutral and

detached.” Tapia v. State, 462 S.W.3d 29, 44 (Tex. Crim. App. 2015). A judge’s

ordinary efforts at courtroom administration will not support a claim of judicial

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bias even when they include “expressions of impatience, dissatisfaction,

annoyance, and even anger.” Liteky v. United States, 510 U.S. 540, 555–56 (1994).

While a trial court should limit its participation in a trial to the exercise of

supervision, a judge is not prohibited from directing comments to a witness or

asking a witness questions for the purpose of clarification. Stewart v. State, 438

S.W.2d 560, 561–62 (Tex. Crim. App. 1969). However, the trial judge must not

convey his opinion of the case to the jury, or “becom[e] an advocate in the

adversarial process.” Hunter v. State, 691 S.W.3d 247, 251 (Tex. App.—Dallas

2024, no pet.); see United States v. Saenz, 134 F.3d 697, 701–02 (5th Cir. 1998)

(noting that federal trial judge may question witnesses to elicit or clarify facts

without falling afoul of due process so long as judge’s behavior does not confuse

the functions of judge and prosecutor); Avilez, 333 S.W.3d at 673 (“[D]ue process

will not permit a judge to assume the role of a prosecutor.”).

Further, “judicial remarks during the course of a trial that are critical or

disapproving of, or even hostile to, counsel, the parties, or their cases,” will not

demonstrate that the judge is not impartial. Liteky, 510 U.S. at 555. But such

remarks “may do so if they reveal an opinion that derives from an extrajudicial

source; and they will do so if they reveal such a high degree of favoritism or

antagonism as to make fair judgment impossible.” Id. “Broadly speaking, a trial

court’s comments become “improper,” for purposes of due process, when the trial

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court takes on a role not permitted to a judge at common law—such as witness—or

when the trial court takes on a permitted role—such as commenting on evidence—

in a manner that shows partiality.” Rodriguez, 2025 WL 1335328, at *6.

C. Voir Dire Comments

Bess argues on appeal that the court erred by stating during voir dire that he

was presumed to be “not guilty” as opposed to presumed “innocent,” and by

referring to the indictment as the “Court’s charging tool.” He asserts that these

statements “laid the groundwork for the jury to perceive the Trial Court as a

partner with the State throughout the rest of the trial.” We disagree.

“The United States Constitution prohibits a trial judge from making a

comment in front of the jury that effectively destroys a defendant's constitutional

presumption of innocence.” Irsan v. State, 708 S.W.3d 584, 607 (Tex. Crim. App.

2025) (quotation omitted). The presumption of innocence refers to an accused’s

“right to be free from criminal conviction unless the State can prove his guilt

beyond a reasonable doubt by probative evidence adduced at trial.” Miles v. State,

204 S.W.3d 822, 825 (Tex. Crim. App. 2006). “When a jury is told of this

presumption, it is told, in effect, to judge an accused’s guilt or innocence solely on

the basis of the evidence adduced at trial and not on the basis of suspicions that

arise from the fact of his arrest, indictment, or custody.” Id.

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During voir dire, the trial court made the following comments about the

presumption of innocence.

What do we know about this case? Pretty easy. We know for sure that
this man on trial enjoys a presumption of innocence. As he stands here
right now, he is presumed to be not guilty. There is no ifs, ands, or
buts that follow that sentence. Right now Mr. Kendrick Bess is simply
not guilty until proven otherwise. It’s called the presumption of
innocence.

....

In this state, in this nation, if you are charged with a criminal offense,
anything from a traffic ticket to capital murder, you are presumed to
be not guilty until proven otherwise in the course of a trial.

So we know right now, if this is Kendrick Bess, if it is, I don’t know,
he is presumed to be not guilty.

The State filed the case. It’s called the State versus Kendrick Bess.
Since the State files the case, the State and the State alone must prove
this case. The Defense has nothing to prove.

You know why? And you do know why. He’s presumed to be not
guilty. He enjoys that protection right now. So the State files the case.
The State and the State alone must prove this case.

....

Mr. Bess stands charged by indictment—two papers right here—with
aggravated assault of a family member and a drug offense,
methamphetamine, 4 to 200 grams.

What is an indictment? The indictment is the Court’s charging tool. It
tells the man on trial exactly what he’s charged with. It tells the
Government what they must prove in the case beyond a reasonable
doubt for a verdict of guilty.

....

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These documents [the indictments] don’t prove anything. It’s just the
Court’s charging tool to start the trial. They are not evidence. They
don’t prove or disprove anything for either side. And they’re called
the indictment in the case.

Contrary to Bess’s argument, the trial court’s statements during voir dire in

fact bolstered the presumption of innocence by explaining in no uncertain terms

that neither the filing of the case nor the indictment were evidence, and the State

bore the burden of proof. Moreover, a valid indictment is necessary to vest a court

with jurisdiction and allow it to start the trial. See Jenkins v. State, 592 S.W.3d

894, 898 (Tex. Crim. App. 2018); see also TEX. CONST. art. V § 12(b) (“The

presentment of an indictment or information to a court invests the court with

jurisdiction of the cause.”).

We conclude that the judge’s explanation of the indictment and the State’s

burden of proof were not improper. See Rodriguez, 2025 WL 1335328, at *5–6.

D. Trial Court Comments Regarding Witness Testimony

Bess argues that the trial judge was not neutral and detached when he

questioned the witnesses and “at times testif[ied] himself for the witnesses.”

Appellant’s Br. 24. In his argument, Bess challenged two specific instances. The

first instance occurred during the direct examination of the officer who responded

to the 911 call and detained Bess in the back of his patrol car. After a bench

discussion and objection in open court, the State asked the officer whether he

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returned to the apartment to speak with the complainant after placing Bess in the

patrol car.

State: Okay. And actually I’m going to circle back. While you
had the defendant at your patrol vehicle, did he say
anything to you that was peculiar?

Defense: Objection, calls for a hearsay response.

Court: Overruled, Counsel.

If you recall, you got him inside the car. Is he
handcuffed, if you know? I’m thinking yes.

Witness: Oh, yeah, yeah. He was cuffed, yes.

Court: Behind the back, I imagine?

Witness: Yes.

Court: All right. And what, if anything, does he say to you
beside the car right there, if you recall?

The second instance occurred shortly after the first, also on direct

examination of the responding officer, who was testifying about the statement the

complainant gave minutes after Bess was removed from the apartment. The judge

overruled objections based on hearsay and the Confrontation Clause after the State

argued that the complainant’s statement was an excited utterance. The officer

testified that the complainant told him the incident began after she refused to have

sex with Bess because she had been “feeling sick.”

Defense: Objection, Your Honor. He’s narrating from the offense
report.
Witness: I’m just trying to paraphrase.
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Court: He’s paraphrasing, Counsel. It’s overruled.
So she’s feeling bad, and he wants some action.
Witness: Right. Right. Yes, sir.
Court: Right?
Witness: Yes, sir.

“[T]rial courts have broad discretion in managing the course of a trial

generally.” Dang v. State, 154 S.W.3d 616, 619 (Tex. Crim. App. 2005); see also

TEX. R. EVID. 611 (governing mode and order of examining witnesses and

presentation of evidence including for several purposes including determining truth

and avoiding wasting time). The court’s comments and questions here summarized

the testimony to maintain the momentum of the trial and facilitate efficient

presentation of evidence. See Dang, 154 S.W.3d at 619; TEX. R. EVID. 611. In the

first instance, the judge’s comments and questions elicited clarification after

several interruptions in the testimony to address objections. In the second, the

comment, while colloquial, restated the testimony the witness gave just before the

objection. In neither instance did the trial judge convey his opinion of the case. See

Hunter, 691 S.W.3d at 251; see also Avilez, 333 S.W.3d at 673.

We conclude that the trial court’s comments regarding witness testimony

were not improper. See Rodriguez, 2025 WL 1335328, at *5–6.

E. Trial Court Comments Regarding Defense Counsel

Bess argues that the trial judge was not neutral and detached when he made

“certain comments aimed at Defense Counsel.” Appellant’s Br. 24. Bess identified

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three specific comments that he contends were aimed at his counsel. The first

challenged comment occurred during direct testimony of the arresting officer, who

testified that the complainant was “very upset . . . very shaken . . . tearful” when he

returned to the apartment after placing Bess in the back of the patrol car. The State

asked what the complainant told him, and Bess’s counsel objected on the grounds

of hearsay and the Confrontation Clause. The State responded that it would soon

play the video from the officer’s body worn camera, which recorded the

complainant’s statements. The State asserted that the complainant’s statements

would “come in through excited utterance.” Defense counsel then asked to

approach the bench, and the trial judge responded: “You don’t need to. I’ve got

good ears. The objection is overruled. Excited utterance exception. Overruled.

Counsel, let’s proceed.”

The second challenged comment occurred during direct testimony of the

complainant’s sister. She testified that her sister called her during the altercation

with Bess, and she could hear “what was going on in the background” at the

complainant’s apartment. The State asked the sister, “[W]hen you got a phone call

from Elisha [the complainant], what voices could you hear at the end of the line?”

The sister responded, “I could [sic] Kendrick Bess was—was cussing out my

sister. And what the most . . . .” Bess’s counsel interrupted the sister to object on

the grounds that her testimony was “not responsive to the question.” The trial

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judge said: “Well, he asked her what she heard and she said she heard Kendrick

Bess cussing my sister and your objection is that’s not responsive. Think about it,

please. Objection is overruled.”

The third challenged comment occurred just before cross-examination of the

complainant, Elisha. After the State passed the witness, the trial judge said: “Ms.

Hawkins, [Defense Counsel] over here has some questions he’s going to ask you.

We have a system. I call it push and shove. He’s going to push. You’re going to

shove. Just try to listen to his questions and answer them directly. Okay?” Elisha

agreed, and Bess’s counsel conducted cross-examination.

In each of these three examples, the trial judge’s comments, may have been

colloquial, served the purpose of ordinary courtroom administration,1 or even

perhaps expressed impatience with defense counsel, but the comments neither

conveyed the judge’s opinion of the case to the jury nor made him an advocate in

the adversarial process. See Liteky, 510 U.S. at 555; Hunter, 691 S.W.3d at 251.

We conclude that the trial court’s comments regarding defense counsel were

not improper. See Rodriguez, 2025 WL 1335328, at *5–6.

1
The push-and-shove comment appears to be an admonition to the complainant to
answer the questions directly.
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***

Having concluded that the trial judge’s comments were not improper, we

further conclude that the cumulative effect of these comments was also not

improper or a deprivation of due process. We overrule Bess’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Susanna Dokupil
Justice

Panel consists of Justices Guerra, Caughey and Dokupil.

Do not publish. TEX. R. APP. P. 47.2(b).

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