I concur only in the judgment of the Court and write separately because I think the majority fails to adequately explain:

• why Tex. R. Evid. 103(d) applies to non-evidentiary matters;
• how this case differs from those where we have held that error was waived under Tex. R. App. Pro. 33.1; and
• why this case does not warrant a harm analysis.

We granted review to determine whether Blue had to object to the trial judge's statements to the venire in order to preserve error. The Court of Appeals held that under Rule 33.1, ⁽¹⁾ Blue did not preserve his complaint for appeal because he failed to object at trial. ⁽²⁾ Four justices joined the majority opinion, two justices wrote concurring opinions, and two issued dissenting opinions.

In his petition, Blue argues that he can complain about the trial judge's statements to the panel for the first time on appeal based on the fundamental error concept. ⁽³⁾ Blue points out that we still recognize the notion of fundamental error in Rule 103(d), which states that "[i]n a criminal case, nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." In reply, the State cites Rule 33.1 and argues that "all but the most fundamental evidentiary and procedural rules (or 'rights') are forfeited if not asserted at or before trial." ⁽⁴⁾

Blue and the State disagree as to the role of Rule 103(d) with respect to Rule 33.1. Recently, at least two Courts of Appeals have grappled with similar issues, specifically looking at whether the Rule 103(d) "fundamental error" exception overrides the strict requirements of Rule 33.1 and applies beyond evidentiary issues. ⁽⁵⁾ They concluded that question had yet to be answered by this Court. ⁽⁶⁾

The majority opinion completely fails to address this issue. Without even citing to Rule 33.1, the majority summarily holds that according to Rule 103(d) we are authorized to review the trial judge's statements,even though there was no objection, because they constituted fundamental error of constitutional magnitude. The majority does not take note of or distinguish this case from the line of non-evidentiary cases where we have held that error is not preserved under Rule 33.1 if there is no objection. ⁽⁷⁾ Additionally, there is no explanation as to why Rule 103, which is entitled "Rulings on Evidence," applies to non-evidentiary matters, even though Justice Taft's concurring opinion implies that 103(d) is limited to evidentiary matters. ⁽⁸⁾

Perhaps the lower courts' focus on whether 103(d) applies to non-evidentiary matters and the majority's application of 103(d) to this case is the problem. This rule of evidence was not meant to be an exception to the current law but was meant to codify existing law. ⁽⁹⁾ As such, whether 103(d) necessarily applies is beside the point. In determining whether unpreserved error can be raised for the first time on appeal, the focus should not be on whether 103(d) permits review but on whether existing law permits review. More specifically, we should look at the current law as to fundamental error.

We have consistently applied rules of procedural default and will continue to do so. In Marin v. State, we summarized years of case law and placed rights into three separate categories: ⁽¹⁰⁾

• The first category of rights are those that are "widely considered so fundamental to the proper functioning of our adjudicatory process . . . that they cannot be forfeited . . . by inaction alone." ⁽¹¹⁾ These are considered "absolute rights." ⁽¹²⁾
• The second category of rights is comprised of rights that are "not forfeitable" -- they cannot be surrendered by mere inaction, but are "waivable" if the waiver is affirmatively, plainly, freely, and intelligently made. ⁽¹³⁾ The trial judge has an independent duty to implement these rights absent any request unless there is an effective express waiver. ⁽¹⁴⁾
• Finally, the third category of rights are "forfeitable" and must be requested by the litigant. ⁽¹⁵⁾ Examples of error forfeited if not insisted upon at trial include improper jury argument, ⁽¹⁶⁾ Batson error, ⁽¹⁷⁾ admission of a confession taken in violation of the Fifth Amendment, ⁽¹⁸⁾ admission of extraneous offense evidence, ⁽¹⁹⁾ certain jury charge errors, ⁽²⁰⁾ and a statute of limitations defense. ⁽²¹⁾ Many rights of the criminal defendant, including some constitutional rights, are in this category and can be waived by inaction. ⁽²²⁾

We held that the requirement of Rule 33.1 that a defendant object in order to preserve error does not apply to rights falling within either of the first two categories. ⁽²³⁾

The majority concludes that the trial judge's comments which tainted the presumption of innocence were fundamental error of constitutional dimension and required no objection. In support of this conclusion the majority cites to several United States Courts of Appeals cases where the trial judge's statements constituted "plain error." The dissent argues that Texas has no counterpart to the "plain error" doctrine found in the Federal Rules of Civil Procedure. While I question the reliance on these cases, we have in a recent opinion stated that "[t]he traditional term in Texas' criminal law that corresponds to "plain error" is "fundamental error." ⁽²⁴⁾ The dissent also argues that the presumption of innocence is not an absolute requirement. Regardless of whether a violation of the presumption of innocence is a violation of an absolute right, it is clear to me that the violation of the right to an impartial judge is an absolute right. The judge's comments in this case violated that right.

At the outset of jury selection, this judge essentially told the venire that the State and Blue were engaging in plea bargaining and Blue could not decide what to do. He stated that he believed Blue should plead because a trial was a waste of time, implying he thought Blue was guilty. He also blamed Blue for the delay that was costing the venire time and money. To top it off, the judge ended with a hypothetical case in which the defense attorney puts Sister Teresa on the stand because no one thinks that she would tell a lie even though Sister Teresa admitted her guilt to the attorney.

The dissent argues that these comments do not constitute bias because there is no "systemic source of bias" or lack of "impartiality in actual fact." I find that the statements taken as a whole do show partiality. The trial judge went so far as to say that he would prefer that the defendant plead. Why else would a judge want a defendant to plead unless he had pre-judged the defendant's guilt? While we rarely see such statements as these, ⁽²⁵⁾ there will be a few cases where the judge's statements when viewed objectively are so egregious as to render him biased. This is one of those cases.

No matter what the evidence was against him, Blue had a right to an impartial judge. ⁽²⁶⁾ The right to an impartial judge is so sacred that the United States Supreme Court has declared a violation of this right to be "structural" error. ⁽²⁷⁾ The presence of a biased judge on the bench is a structural defect in the trial mechanism. ⁽²⁸⁾ Although, as the dissent points out, there are some "structural" errors that can be forfeited, I do not think that the right to an impartial judge should be a right that the defendant can forfeit. This right should be included in the very select class of absolute rights.

Furthermore, I believe that our prior cases holding an objection is required to preserve error ⁽²⁹⁾ are distinguishable from this case because the trial judge's comments were "so egregious" as to deem him biased, and because the right violated -- the right to an impartial judge -- is one of the absolute rights that do not require an objection under Marin. This case is highly unique and litigants should not view this holding as an invitation to appeal without making proper, timely objections.

Without explanation, the majority opinion does not conduct a harm analysis. We have held that except for certain federal constitutional errors labeled by the United States Supreme Court as "structural", no error is categorically immune from a harmless error analysis. ⁽³⁰⁾ If the majority is going to hold the trial judge's statements violated the presumption of innocence, then a harm analysis is required because it is not a structural error. However, since I believe that the right violated was the right to an impartial judge, which is a structural error, a harm analysis is not warranted.

Considering that the judge's comments to the venire were not evidence, it is not clear to me whether Rule 103(d) would apply. Nevertheless, the doctrine of fundamental error exists apart from Rule 103(d). I find that the trial judge's remarks in this case violated an absolute systemic right under Marin -- the right to an impartial judge.

I concur in the judgment of the majority reversing the judgment of the court of appeals and remanding for further proceedings.

DATE DELIVERED: December 13, 2000

PUBLISH

Tex. R. App. Pro. 33.1 provides:

(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint was made to the trial court by a timely request, objection, or motion that:

(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and

(B) complied with the requirements of Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly; or

(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

1. See Appendix.

2. Blue v. State, 983 S.W.2d 811, 812 (Tex. App. -- Houston [1^st Dist.] 1998) (en banc) (citing Tex. R. App. Pro. 33.1; Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983); Smith v. State, 959 S.W.2d 530, 537 (Tex. App. -- Tyler 1995, no pet.); Moore v. State, 907 S.W.2d 918, 923 (Tex. App. -- Houston [1^st Dist.] 1995, pet. ref'd)).

3. Citing Hay v. State, 472 S.W.2d 157, 158, 159 (Tex. Crim. App. 1971); Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. 1978); Hart v. State, 447 S.W.2d 944, 952 (Tex. Crim. App. 1969); Dempsey v. State, 387 S.W.2d 891, 893 (Tex. Crim. App. 1965).

4. Citing Wilson v. State, 977 S.W.2d 379, 380 (Tex. Crim. App. 1998); Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed.2d 548 (1997).

5. See Devis v. State, 18 S.W.3d 777, 778 (Tex. App. -- San Antonio 2000, no pet.) (stating that the role of 103(d) with respect to 33.1 is unsettled law); Hoang v. State, 997 S.W.2d 678, 680-81 (Tex. App. -- Texarkana 1999, no pet.) (stating that the Court of Criminal Appeals has not decided this issue).

6. See id.

7. See generally Fuentes v. State, 991 S.W.2d 267, 276 (Tex. Crim. App. 1999) (holding trial court comments could not be reviewed for the first time on appeal); Henderson v. State, 962 S.W.2d 544, 559 (Tex. Crim. App. 1997) (failing to object to trial judge obtaining outside consultation waived error); Cockrell, 933 S.W.2d at 89 (waiving improper jury arguments made by prosecution because no trial objection); Valencia v. State, 946 S.W.2d 81, 82 (Tex. Crim. App. 1997) (waiving objection to improper jury argument during punishment phase because no objection); Nelson v. State, 661 S.W.2d 122, 124 (Tex. Crim. App. 1983) (finding error was waived when there was no timely objection to trial court comments); Woods v. State, 653 S.W.2d 1, 6 (Tex. Crim. App. 1982) (holding litigant must object to trial court comments).

8. See Blue, 983 S.W.2d at 815;  see also Devis, 18 S.W.3d at 778; Hoang, 997 S.W.2d at 680-81.

9. Tex. R. Evid. 103(d) official comment (West 1988).

10. 851 S.W.2d 275, 278-80 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).

11. Id. at 278.

12. Id. at 279.

13. Id. at 279-280.

14. Id.

15. Id.

16. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).

17. See Batiste v. State, 888 S.W.2d 9, 16 n. 5 (Tex. Crim. App. 1994).

18. See Harris v. State, 827 S.W.2d 949, 953 (Tex. Crim. App. 1992), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992).

19. See Norris v. State, 902 S.W.2d 428, 439 (Tex. Crim. App. 1995).

20. See Pondexter v. State, 942 S.W.2d 577, 588 (Tex. Crim. App. 1996) (plurality); Green v. State, 934 S.W.2d 92, 108 (Tex. Crim. App. 1996); Ranson v. State, 920 S.W.2d 288, 303 (Tex. Crim. App. 1996); Jackson v. State, 898 S.W.2d 896, 899 (Tex. Crim. App. 1995).

21. See Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim. App. 1998); State v. Yount, 853 S.W.2d 321, 328 (Tex. Crim. App. 1994).

22. Marin, 851 S.W.2d at 279.

23. See. id. at 279-80 (referring to Rule 52(a) which is now Rule 33.1).

24. Jimenez v. State, No. 1090-99, slip op. at 11, 2000 WL 1283732 at *3 (Tex. Crim. App. Sept. 13, 2000).

25. See generally Hay v. State, 472 S.W.2d 157, 158 (Tex. Crim. App. 1971) (reversing where judge sent "not guilty" verdict back to the jury and told them it was "wrong").

26. See Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); see also Weiss v. United States, 510 U.S. 163, 178, 114 S.Ct. 752, 761, 127 L.Ed.2d 1 (1994) (citing In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955); Tumey, 273 U.S. at 532, 47 S.Ct. at 444); LaGrone v. State, 209 S.W.d 411, 415 (1919); Anderson v. State, 202 S.W. 944, 946 (Tex. Crim. App. 1918).

27. Neder v. United States, 527 U.S. 1, 13, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999) (citing Tumey, 273 U.S. 510, 47 S.Ct. 437); Edwards v. Balisok, 520 U.S. 641, 647, 117 S.Ct. 1584, 1588, 137 L.Ed.2d 718 (1997) (citing Tumey, 273 U.S. 510, 47 S.Ct. 437), Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 1549-50, 137 L.Ed.2d 718 (1997) (citing Tumey, 273 U.S. 510, 47 S.Ct. 437); Sullivan v. Louisiana, 508 S.W. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993) (citing Tumey, 273 U.S. 510, 47 S.Ct. 437).

28. Arizona v. Fuliminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991).

29. See supra notes 4 and 7.

30. Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).