IN THE TENTH COURT OF APPEALS No. 10-13-00120-CR HENRY LEE HUTCHINSON, Appellant v. THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2012-1755-C2

ORDER This appeal became ripe for disposition on September 13, 2013. In reviewing the appeal, we have identified a preliminary matter regarding our authority to address appellant’s first issue not raised and briefed by the parties. Rule 33.1 generally requires that issues presented to this Court must be preserved. TEX. R. APP. P. 33.1. Accordingly, in reliance on the Court of Criminal Appeals’ opinion in Pena v. State, 191 S.W.3d 133, 137-138 (Tex. Crim. App. 2006), we order supplemental briefing by both parties on the following question: Is the “right to an impartial judge” a systemic requirement which permits a party to complain on appeal that such a requirement was violated, even if the party failed to complain at trial about the violation or waived the application of the law? See Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004).

It may be helpful to the briefing to distinguish this type of error from “structural” error which impacts only the harm analysis. Id. at 339. Further, it may be necessary to discuss the concept of “fundamental errors” recognized by Texas Rule of Evidence 103 and “plain error” recognized in the Federal courts.

Appellant’s supplemental brief is due 21 days from the date of this order. The State’s supplemental brief is due 14 days from the date appellant’s supplemental brief is filed.

PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins Order issued and filed January 16, 2014

Hutchinson v. State Page 2