Abraham Proenza did not object when his trial judge began asking pointed, substantive questions of a witness bearing crucial defensive testimony. Is Proenza now barred from complaining of this error for the first time on appeal? Because the trial judge had an independent duty to refrain from conveying to the jury her opinion of the case, we hold that Proenza was under no obligation to object mid-trial. We affirm in part and will remand.I. FACTS AND PROCEDURAL POSTUREOn the evening of August 11, 2008, Abraham Proenza walked into the bedroom of four-month-old baby boy AJV and noticed that he was blue and purple in color, apparently struggling to breathe. Although Proenza administered emergency medical care to AJV and promptly contacted 911, AJV died later that night. Proenza, who was neither AJVâs biological nor adoptive father, admitted to police that he had noticed AJV vomiting several times in the weeks, days, and even hours leading up to his death. An autopsy revealed that AJV was severely malnourished and dehydrated at the time of his death.A grand jury ultimately indicted Proenza for Injury to a Child, alleging that he intentionally and knowingly caused serious bodily injury to AJV by, among other things, failing to seek prompt medical care for AJV. Proenza would maintain at trial that he lacked the requisite intent to harm AJV because of his genuine, though perhaps mistaken, belief that he could not obtain medical care for AJV without some documentary proof that he was AJVâs legal guardian. This belief was apparently based on a previous occurrence in which Proenzaâs father-in-law brought a granddaughter to a medical clinic but was turned away due to the father-in-lawâs inability to produce this very kind of documentation. The clinic at which this incident occurred, Su Clinica, happened also to be the location of one of AJVâs pediatricians, Dr. Carol Grannum.A. At TrialThe State called Dr. Grannum to testify to her prior treatment of AJV, as well as Su Clinicaâs supposed requirement that a child be accompanied by a documented legal guardian in order to receive care. At one point, Dr. Grannum responded to a hypothetical situation posited by the defense wherein âsomebody . . . tries to take the child [to Su Clinica for medical care] thatâs not the parent and has no documentation as a guardian,â by stating that in those circumstances, medical staff at the clinic âcanât see the patient.â She later clarified, however, that if a patient were in âacute distress,â the patient would be stabilized on-site and someone from the clinic would call for EMS to take him or her to an emergency room.After both parties had completed their questioning of Dr. Grannum and asked that she be excused, the trial judge interjected by directly asking Dr. Grannum for further details regarding the day-to-day enforcement of Su Clinicaâs policy. Proenza did not object to this initial exchange between the trial judge and Dr. Grannum, instead opting to âclarifyâ the testimony brought out by the judge by further examining the witness. But this only prompted the judge to interject yet again, this time expressing skepticism that Su Clinicaâs policy was enforced as stringently as defense counselâs follow-up questions suggested. In the course of this judicial witness examination, the trial judge informed Dr. Grannum, in the presence of the jury, that her own doctor allowed the judgeâs children to be accompanied by relatives without any sort of authorizing note.[1]As to the entirety of this exchange between the trial judge and Dr. Grannum, the State concedes, and we agree, that â[t]he courtâs tone is fairly characterized as disapproval of the wisdom of such a practice and/or doubt that the policy is enforced as strictly as suggested by [Dr.] Grannum.â[2] Although the exchange was rather lengthy, Proenza did not lodge an objection before the trial judge that he considered her comments to be prejudicial. At the conclusion of the case, the jury found Proenza guilty and assessed his sentence at forty yearsâ imprisonment.B. On AppealProenza complained before the Thirteenth Court of Appeals that â[t]he trial judge improperly commented on the weight of the evidenceâ when she engaged with Dr. Grannum. Observing that â[b]y statute, the trial court may not comment on the weight of the evidence or convey an opinion of the case in the juryâs presence at any stage of trial,â Proenza cited to Texas Code of Criminal Procedure Article 38.05 and this Courtâs plurality opinion in Blue v. State as the dual bases for his relief.[3] Proenza did not brief or otherwise address the preservation-of-error issue.Nevertheless, the court of appeals characterized Proenzaâs argument as a claim âthat fundamental error occurredâ when the trial judge examined Dr. Grannum âsuch that . . .[Proenza] could complain . . . for the first time on appeal.â[4] After considering our recent decision in Unkart v. State[5] and one of the concurring opinions in Blue, the court of appeals âconcluded that a defendant may complain for the first time on appeal about a trial courtâs lack of impartialityâ under the rubric of fundamental error âso long as the trial judgeâs conduct is so egregious as to deem the judge biased on the matter[.]â[6] Looking to the substance of what the trial judge said in Proenzaâs case, the court held that fundamental error of this kind had indeed occurred, thereby rendering a trial-level objection to the comments unnecessary to preserve complaint on appeal.[7] The court went on to review Proenzaâs claim for constitutional harm, found that it could not say âbeyond a reasonable doubt that the trial courtâs error did not contribute to Proenzaâs conviction,â and reversed.[8]C. Petition for Discretionary ReviewThe State raises three grounds in its petition for discretionary review:1. Is there a common-law âfundamental errorâ exception to preservation that exists outside of the framework of Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)? Is a complaint about a judgeâs comment on the evidence forfeited if not raised at trial? The trial judgeâs exchange with a witness neither tainted the defendantâs presumption of innocence nor vitiated the juryâs impartiality, and it was harmless under any standard.[9]After a brief discussion of the law applicable to improper judicial commentary and procedural default, we will address each of the Stateâs grounds for review in turn.II. THE LAWA. Judicial CommentsArticle 38.05 of the Texas Code of Criminal Procedure prohibits the trial judge from commenting on the weight of the evidence in criminal proceedings or otherwise divulging to the jury her opinion of the case:In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.[10]Although Article 38.05 has been a fixture in our statutes for many years, this Court has had relatively few occasions, especially in the modern era, to discuss its meaning or application.[11] To the extent that we have, we have fairly consistently stated that â[t]o constitute reversible error [under] Article 38.05 . . . the comment must be such that it is reasonably calculated to benefit the State or prejudice the defendantâs rights.â[12] If raised as a freestanding statutory complaint, error under Article 38.05 is subject to non-constitutional harm analysis.[13]Of course, neither determining whether a particular comment violates Article 38.05 nor assessing the severity of harm, if any, flowing from an improper comment answers the question whether an appellate claim concerning the comment was properly preserved in the first place. Indeed, we have previously stressed the importance of keeping questions of preservation and harm distinct from one another.[14] Understanding how our procedural- default jurisprudence applies to Article 38.05 claims thus requires us to look to our âwatershed decision in the law of error-preservation,â[15] Marin v. State.[16]B. Procedural Default in this Context: Marin, Blue, and UnkartIn Marin, we described the Texas criminal adjudicatory system as containing error- preservation ârules of three distinct kinds: (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request.â[17] We have since referred to these separate classifications as category-one, -two, and -three Marin rights, respectively. We explained that procedural defaultâthat is, âthe loss of a claim or right for failure to insist upon it by objectionâââonly applies to the last category,â since these rights are typically considered to be âoptional with the litigants.â[18] On the other hand, category-two rights, because they are âso fundamental to the proper functioning of our adjudicatory process as to enjoy special protection,â are only abandoned on appeal when the record reflects that they have been âplainly, freely, and intelligentlyâ waived at trial.[19] And category-one rights, being âsystemicâ and therefore âessentially independent of the litigantsâ wishesâ can neither be forfeited nor even validly waived by the parties for appellate-review purposes.[20] Utilizing this categorical framework has been immensely helpful in clarifying our procedural-default caselaw, since â[d]etermining which category a right occupies will usually settle the question of procedural default in the context of a particular case.â[21]However, deciding the procedural-default status of claims of improper judicial comments has presented a unique challenge for this Court. In Blue v. State, for example, the trial judge made a number of inappropriate comments to a venire of potential jurors, including that he âprefer[red] the defendant to plead [guilty]â rather than assert his right to a jury trial.[22] Although the appellant âdid not object to anyâ of the trial judgeâs statements in that case, he âasserted that when a trial judge makes a fundamentally erroneous statement, no objection is requiredâ to present such a claim on appeal.[23] Albeit for varying reasons, a fractured majority of this Court agreed.[24]A four-judge plurality cited to then-Rule 103(d) of the Texas Rules of Evidence in support of the proposition that âwe are authorized to âtak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court.ââ[25]Finding that â[t]he comments of the trial judge . . . tainted appellantâs presumption of innocence in front of the venire,â the plurality determined that âfundamental error of constitutional dimensionâ had occurred, such that âappellantâs failure to object . . . did not waive error.â[26] A concurring opinion would have based the analysis more upon Marinâs procedural-default framework in arriving at this conclusion, as opposed to the pluralityâs apparent reliance upon the Rules of Evidence.[27] The concurrence found that the improper comments were evidence that the defendantâs right to an impartial judgeâwhich the concurrence believed to be a category-one Marin absolute requirementâwas violated.[28]Accordingly, although both the plurality and concurrence would have found that the improper-judicial-comments claim in Blue was not forfeited by the appellantâs failure to object, they were unable to agree upon a justification for that common ground. We later acknowledged this lack of agreement in Unkart v. State.[29] In Unkart, the trial judge made a number of comments in voir dire regarding the defendantâs right not to testify that the defendant perceived as inappropriate.[30] The defendant did not contemporaneously object, but complained on appeal that the judgeâs voir dire âimproperly commented on his right not to testify.â[31] We observed that â[o]rdinarily, a complaint regarding an improper judicial comment must be preserved at trial,â but noted that in Blue, âwe granted relief on an improper-judicial-comment complaint that was not preserved at trial.â[32] We declined to treat Blue as precedential on the issue of procedural default solely because the ârationales of the plurality and concurring opinionsâ in Blue were âentirely disparate.â[33] But the Blue opinions were neither expressly overruled nor even cast into doubtâthey could still âbe considered for any persuasive value they might have.â[34] And indeed, we ultimately resolved Unkart via the merits determination that âthe circumstances [in Unkart] differ[ed] significantly . . . from the circumstances in Blue.â[35]Our silence in Unkart on the issue of âfundamental errorâ may have been why the court of appeals in this case said that Unkart âleft the door open for a judicial comment that can rise to the level of fundamental error.â[36] But even before Unkart, this Court had already rejected the idea that âfundamental error,â as a freestanding doctrine of error-preservation, exists independently from Marinâs categorized approach.III. ANALYSISA. There is no common-law âfundamental errorâ exception to the rules of error preservation established by Marin.In Saldano v. State, we noted that before Marin âthis Court . . . recognized more than a dozen . . . kinds of fundamental error.â[37] We agreed with Professors Dix and Dawson that our pre-Marin error-preservation jurisprudence was regrettably little more than a series of âpiecemeal developments,â each with âsomewhat different rationales.â[38] As a consequence, questions of procedural default could not âbe explained by any . . . unifying principle or principles.â[39] This is why, in Saldano, we lauded Marin as âa watershed decision in the law of error-preservationââbecause Marin âsuggest[ed] . . . a frameworkâ for a set of unifying procedural-default principles that was sorely needed.[40] In Mendez v. State, we later reÂiterated Marinâs subsumption of any âfundamental errorâ doctrine when we said that â[q]uestions of âfundamental errorâ now are considered in its framework.â[41]Although this precedent would seem to decide the issue before us, we note that the doctrine of âfundamental errorâ may be understood in one of two ways. The first formulation of the doctrine may be stated thusly: Some claims, by their very utterance and irrespective of the level of harm resulting therefrom, are of such a âfundamentalâ nature that they are worth reaching on appeal whether they were preserved at trial or not. But to say that an error is âfundamentalâ in this sense is functionally the same as saying that it is a Marin category- one or -two claim. It was in this sense that, in Mendez, we said that â[q]uestions of âfundamental errorâ now are considered in [Marin's] framework.â[42] And as to this formulation of the doctrine, we see no practical or legal basis for contradicting what we said in Saldano and Mendez; our reasoning regarding âfundamental errorâ in those cases remains as true today as it was when they were decided.The second formulation, and the one apparently (if not explicitly) adopted by the court of appeals in this case, may be stated this way: Some claims are such that, while normally requiring a trial-level objection to preserve error, they are nevertheless reviewable without an objection when the harm resulting from the error is sufficiently âfundamentallyâ egregious. This formulation is aptly described as a âharm-basedâ theory of error preservation. Both the court of appeals, in its opinion,[43] and Proenza, in his brief on the merits before us,[44] cite to our opinion in Jasper v. State[45] in support of such a theory.In Jasper, the appellant claimed that âhis right to a fair trial by an impartial jury was violated by comments of the trial judgeâ when the judge âcorrect[ed] a misstatement . . . of previously admitted testimonyâ and expressed âirritation at the defense attorneyâ in so doing.[46] Although the appellant did not object at trial, we claimed that âit is the province of this Court to âtake notice of fundamental errors affecting substantial rights although they were not presented to the court.ââ[47] We cited what was, at that time, codified as Texas Rule of Evidence 103(d) in support of this claim, which read: âNothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court.â[48] This rule has since been re-codified as Texas Rule of Evidence 103(e), and now reads slightly differently: âIn criminal cases, a court may take notice of a fundamental error affecting a substantial right, even if the claim of error was not properly preserved.â[49] Proenza, too, points to this rule as proof of the existence of a freestanding doctrine of âfundamental error.â[50]But reading Rule of Evidence 103(e)âand, by extension, Jasperâso as to divine a freestanding, harm-based doctrine of error preservation is contrary to the language and drafting history of the rule, as well as our own post-Marin caselaw. Rule 103(e) is a âRule of Evidenceâ by its very style. It is located in a subheading that is titled âRulings on Evidence.â[51] It is therefore inaccurate to cast Rule 103(e) as an exception to the rules of procedural default in situations whereâas in this case, Blue, and Jasperâthe perceived error did not arise from the trial judge âruling to admit or exclude evidence.â[52]Even were we inclined to confine the Rule 103(e) âfundamental errorâ exception to evidentiary situations, we note that as originally drafted in 1986, â[Rule 103(d)] was intended to be purely declarative of prior law.â[53] Rule 103(d), then, was meant only as an acknowledgment that certain patchwork rights had been accorded a âfundamentalâ status in our pre-Marin procedural-default body of law.[54] As previously stated, Marin subsumed this body of law and provided a framework under which it was to be applied going forward. Rather than existing in conflict with one another, Rule 103(e), Jasper, and Marin all stand for the same uncontroversial proposition: âSome rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system.â[55] The âfundamental error[s]â described in Rule 103(e) and Jasper are simply category-one and -two Marin errors.That Marin leaves no room for a harm-based doctrine of error-preservation is further bolstered by our subsequent caselaw on this subject. We have characterized Marin as holding âthat the general preservation requirementâs application turns on the nature of the right allegedly infringed,â[56] as opposed to âthe circumstances under which it was raised.â[57]That is, a proper determination of a claimâs availability on appeal should not involve peering behind the procedural-default curtain to look at the particular âcircumstancesâ of the claim within the case at hand. This is because â[d]etermining a threshold issue of procedure based on the claimâs merits results in an analytical hiccup[.]â[58] So we have said that even errors that may be cured only by mistrial[59] and rights whose timely assertion lead only to dismissal[60]may still be forfeited by failure to raise or urge them at trial. To adopt a model of error preservation that incorporates a âharmfulness of errorâ standard would fly in the face of these settled jurisprudential standardsâand would, in addition, risk subverting the gate-keeping intent underlying Marin.Proenza cautions that doing away with the doctrine of âfundamental errorâ is tantamount to a ruling that âno defendant in a situation such as the present caseâ would âever be able to obtain relief without preserving error[,] no matter how egregious the error is.â[61]He is mistaken. In the first place, we have previously said that even âincurableâ errors may sometimes be forfeited by the defendantâs failure to object at trial.[62] Secondly, we do not repudiate the word âfundamentalâ as a descriptor of rights or errors in appellate claims; what we reject is the use of this term whenever it is used to connote a harm-based doctrine of error preservation. Once again, the question of error preservation turns not upon the âcircumstances under which [an error] was raised,â but upon the ânatureâ of the error itself.[63]We agree with the State that â[f]or the purpose of preservation . . . it should not matter that some comments are worse than others; that is purely a function of harm.â[64]Finally, and most importantly, our rejection of a freestanding doctrine of âfundamental errorâ does not mean that Marinâs classes of non-forfeitable claimsâcategories one and twoâhave somehow disappeared. To the contrary, our ruling today simply changes the operative question in determining whether a claim of improper judicial commentary is subject to procedural default. Instead of the operative question being whether, in a particular case, a trial judgeâs comments rise to the level of âfundamental error,â the operative question is now whether, in the Texas adversarial system as a whole, claims of error under Article 38.05 fall within Marinâs third class of forfeitable events.B. Under Marinâs framework, a trial judgeâs improper comment on the evidence is not forfeited by mere inaction at trial.Marin places particular emphasis on the various respective âdut[ies]â faced by trial judges and litigants in our adversarial adjudicatory system.[65] âThe trial judge has no duty to exclude,â for instance, hearsay evidence absent a partisan objection âand would probably fall into error if he did.â[66] Neither does the trial judge have an âindependent duty . . . to shuffle the [venire] panel or to excuse [a] venirememberâ subjected to peremptory challenge.[67]Indeed, â[t]he trial judge as institutional representative has no duty to enforceâ any forfeitable right âunless requested to do so.â[68] In this sense, the responsibility of asserting forfeitable rights belongs to the litigants, and not the trial judge. This is why such rights will be unavailable on appeal if not urged at trial. A court of appeals should not find error in a trial judgeâs inaction when contemporaneous action is neither requested nor independently required of her.By the same token, however, a litigant âneed make no request at trial for the implementation ofâ waiver-only rights precisely because âthe [trial] judge has an independent duty to implement them absent an effective waiver.â[69] When it comes to non-forfeitable rights, the legal responsibility of assuring compliance with these rights falls squarely upon the trial judge. And when these kinds of rights are at stake, a court of appeals may rightly find error in a trial judgeâs conduct, even when the parties do not complain at trial, because the law imposes upon the judge a duty that exists independently of the partiesâ decision to speak up. As we would later unanimously say in Mendez v. State: âA law that puts a duty on the trial court to act sua sponte, creates a right that is waivable only. It cannot be a law that is forfeitable by a partyâs inaction. This was the precise holding of Marin.â[70] In accordance with Mendez, the question of whether Article 38.05 is a category-three forfeitable right under Marin turns upon whether the trial judge has an independent duty to ensure compliance with Article 38.05, or whether compliance need be given only upon partisan request.[71]We note initially that the statute itself is written in mandatory terms: âthe judge shall not discuss or comment upon the weight of the [evidence] . . . nor shall he . . . make any remark calculated to convey to the jury his opinion of the case.â[72] While we have previously said that a statute being âcouched in mandatory terms . . . does not necessarily mean that the statute identifies an absolute prohibition or a waiver-only right,â[73] we note that the statute in this case is both (1) couched in mandatory terms and (2) directed at the trial judge herself. There is no ambiguity within the statute as to who bears the ultimate responsibility of compliance with this lawâthe language of the statute speaks for itself in placing this responsibility squarely upon the judge.[74] The statute speaks neither of âa partyâs requestâ[75]nor the âmotion of the defendant,â[76] but simply commands that the judge comply. It would seem, then, that Article 38.05 by its very text creates âa duty on the trial court to act sua sponteâ[77]1âor rather, a duty to refrain sua sponte from a certain kind of action. To this extent, we agree that this âcannot be a law that is forfeitable by . . . party[] inaction.â[78]To be sure, there is real utility in requiring a timely objection upon perceived error, including that the respective parties are not âburdened by appeal and retrial.â[79] But Marin took special pains to describe procedural default rules that made sense â[i]n the context of the whole system.â[80] Thus, the utility associated with enforcement of forfeiture rules never outweighs âfundamental systemic requirements or . . . rights so important that their implementation is mandatory absent an express waiver.â[81] If a category of error by its very utterance tends to threaten the integrity of the criminal adjudicatory process itself, we may, consistent with Marin, deem it proper for appellate courts to at least consider the merits of these claimsâeven in the absence of a trial-level objectionâand take corrective measures as appropriate.[82]In this exact fashion, we believe that compliance with Article 38.05 is âfundamental to the proper functioning of our adjudicatory system,â such that it should âenjoy special protectionâ on par with other non-forfeitable rights.[83] Marinâs description of the adversarial system depends upon, or at the very least assumes, the decision-makerâs impartiality. When a trial judge has no interest in the outcome, it is fair to assume that those rights the litigants want enforced, they will ask to be enforced. It behooves the litigants to urge their rights at trial precisely because they can trust the trial judge to fairly consider the claims and reach a ruling that is based in law. And when they do not so desire to urge their rights, it is sensible to assume that their âfailure to speak up is quite enough.â[84]But when the trial judgeâs impartiality is the very thing that is brought into question, Marinâs typical justification for requiring contemporaneous objection loses some of its potency. When a litigant perceives a violation of Article 38.05, it is not a foregone conclusion that his silence indicates a relinquishment of his rights thereunder. Silence may just as fairly indicate a litigantâs calculation that, if the trial judge is indeed partial to the opposing side in her evidentiary commentary, she will likewise display partiality in ruling upon the Article 38.05 objection itself. An objection under these circumstances would be futile at best, and at worst could reinforce to the jury that the trial judge stands solidly in the corner of the opponent. Article 38.05 violations therefore disrupt the delicate incentive structure that, under Marinâs framework, is âso fundamentalâ to the proper functioning of our system.This is to say nothing of the important role that Article 38.05 plays in protecting the perception of the trial judgeâs impartiality in front of the jury. We have previously stated that Articles 36.14[85] and 38.05 reflect a âdevotionâ within the Texas adversarial system to the proposition that âthe judge is a neutral arbiter between the advocates.â[86] When a litigant contends that the trial judge has shirked her duty by openly âconvey[ing] to the jury [her] opinion of the case,â[87] the litigant has necessarily alleged that an alarming perversion of this role has taken place. And because we have said that â[j]urors are prone to seize with alacrity upon any conduct or language of the trial judge,â we believe such an allegation to be sufficiently weighty as to merit appellate review even in the absence of a partisan objection at trial.[88] As we said in Grado v. State, â[a] contrary conclusion has the potential of shaking the publicâs perception of the fairness of our judicial system and breeding suspicion of the fairness and accuracy of judicial proceedings. The nature of this right is too significant tothe judicial system to conclude that it is extinguished by mere inaction.â[89]Of course, we do not hold today that every unscripted judicial comment in fact disrupts the proper functioning of the judicial system or weakens the publicâs faith in our trial judges.[90] This is because, as the dissent rightly points out, â[m]ost trial judges are hardÂworking and well-meaning[.]â[91] But we also believe that allegations of impropriety under Article 38.05 tend, as a whole, to implicate these concerns whether each individual claim has merit or not. Thus, if a judicial comment is found to be errorless or insignificant in the context of a particular trial, that is a good reason to conclude that any resulting claim of error should be denied on its merits or else declared harmlessâit is not a good reason to say that the claim was never preserved in the first place. We do not, then, suggest that every claim brought under Article 38.05 is meritorious or even likely to be so; we speak only on the issue of preservation.Nevertheless, the dissent fears that, by our holding today, âthe Court . . . fashions a regime that will entangle the appellate courts in micromanaging the conduct of jury trials.â[92]It concludes that âequity and policy favor giving trial judges the opportunity to address and cure complaints about judicial comments,â[93] and observes by way of comparison that âallowing judicial comments on the evidence is a common-law tradition in federal court[.]â[94]But federal law has no statute explicitly prohibiting judicial commentary on the weight of evidence in front of the jury. Texas does.[95] We are bound by the will of the Legislature as expressed in its enactmentsâeven when those enactments break from vaunted âcommon-law tradition[s]â[96] or the practices of other jurisdictions. And this deference to the Legislature ultimately cuts both ways. Should the Legislature agree that we have ranked Article 38.05 too highly in the pantheon of Texas trial rights, or that the rule announced today places too heavy a burden on the dockets of our appellate courts, it is certainly within the Legislatureâs authority to provide tailored guidelines about whether, when, and to what extent a litigant must object to preserve an appellate complaint under Article 38.05. Until then, Mendez provides the clearest answer to the question before us today: âA law that puts a duty on the trial court to act sua sponte, creates a right that is waivable only.â[97]In light of the above, we hold today that claims of improper judicial comments raised under Article 38.05 are not within Marinâs third class of forfeitable rights. Rather, we believe that the right to be tried in a proceeding devoid of improper judicial commentary is at least a category-two, waiver-only right.[98] Because the record does not reflect that Proenza plainly, freely, and intelligently waived his right to his trial judgeâs compliance with Article 38.05, his statutory claim in this matter is not forfeited and may be urged for the first time on appeal. In this regard, the ruling of the court of appeals is affirmed.C. Was Proenza harmed?We have previously said that âwhen only a statutory violation is claimed, the error must be treated as non-constitutional for the purpose of conducting a harm analysis.â[99] Texas Rule of Appellate Procedure 44.2(b), the non-constitutional standard for reversible error in criminal cases, requires that â[a]ny other [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.â[100] In apparent recognition of this principle, Proenza, in his brief before the court of appeals, not only cited Article 38.05 in support of his claim but also called for non-constitutional harm review: âHaving shown violations of Texas Code of Criminal Procedure 38.05, Appellant must now show a substantial right was affected as a result[.]â[101]However, as the State rightly points out, both the majority and dissenting opinions below applied the standard of harm that is associated with constitutional error, despite Proenzaâs assertion of a bare statutory claim. Texas Rule of Appellate Procedure 44.2(a) states that â[i]f the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.â[102] The majority expressly applied, and cited to, this constitutional-error harm standard when it could not âsay beyond a reasonable doubt that the trial courtâs error did not contribute to Proenzaâs conviction.â[103]In this, the court of appeals erred. Because Proenza claimed only statutory error and called for non-constitutional harm analysis, the court of appeals should have applied the harm analysis contained in Texas Rule of Appellate Procedure 44.2(b). This is not to say that the court of appealsâs ultimate determination that Proenza was harmed was incorrect per se; but the court should have examined this issue under the correct standard. Rather than undertake this examination for the first time on discretionary review, we think it more appropriate for the court below to revisit its harm analysis, this time applying the proper standard under Rule 44.2(b).[104]IV. CONCLUSIONMarin described the trial judge as an âinstitutional referee;â[105] she is not, to continue the metaphor, just another player on the field. Knowing this, litigants in our system do notâand should notâexpect the judge to stand in open opposition to their desired verdicts, as they should with their opponents. And the trial judge, for her part, should not need the litigants to remind her that hers is not the task âof producing the evidence [and] arguing its significance[.]â[106] She should know without being prompted that any divulgence to the jury of her opinion in the case would, if nothing else, make her seem âinvolved in the fray.â[107]Our systemâs basic structure, then, simply does not contemplate that litigants should bear the duty to request Article 38.05 compliance before it will be given. As in Marin, we think it would be âdysfunctionalâ to interpret Article 38.05 so as âto foreclose review of [this] trial defect[] for which the litigants are not legally responsible.â[108]Although Proenza did not contemporaneously object to the trial judgeâs improper questioning of a witness, he was nevertheless entitled to appellate review of his claim that, in so doing, the judge violated Texas Code of Criminal Procedure Article 38.05. This is not because the trial judgeâs comments rose to the level of âfundamental error,â but rather because claims brought under Article 38.05 are not, in Marinâs framework, subject to forfeiture by inaction. We remand this case to the court of appeals to apply the proper harm analysis on the merits of Proenzaâs claim. Delivered: November 15, 2017 PublishAPPENDIX[PROSECUTOR]: Nothing further from this witness, may this witness be excused?THE COURT: Maâam, once the child is a registered patient of the clinic, what do you all require for documentation on follow-up visits?THE WITNESS: Meaning if the patient needs to come back, we would give them a little note saying you [are] due back in a week or in two weeks or two months.THE COURT: So in this case, you had given [AJV] a follow-up appointment. THE WITNESS: Yes.THE COURT: When he â when [AJV] is presented for his return visit, what do you require if anything, for the child to be seen?THE WITNESS: We would see the patient unless the patient wasnât brought in, I guess, by mom or dad, doesnât have a note saying that whoever is bringing the patient in.THE COURT: But if he has a card, they just present it and go in to be seen?THE WITNESS: He doesnât even need a card. You just have to present your name.THE COURT: You just sign in on the front? THE WITNESS: Yeah, and present your name. THE COURT: And they pull the file and take him in.THE WITNESS: And they pull the file and then they see which doctor can see them, and we see them.THE COURT: So you donât go through paperwork each time you come to the clinic?THE WITNESS: No, not if the patient has already been seen, and if thatâs the patientâs medical home.THE COURT: Okay.[DEFENSE COUNSEL]: May I follow up, Judge, just to clarify? THE COURT: Sure.[DEFENSE COUNSEL]: Doctor, you said that only if they brought in the patient or a guardian with authorization, thatâs what you mean, even if itâs a follow-up.THE WITNESS: Right, but the patient has to be with a legal guardian or with the mom or dad.[DEFENSE COUNSEL]: Because even though itâs a follow-up, you are still not going to see â well, we are talking about a minor child. You are not going to see the child unless the parent or guardian or someone with documentation authorized for you all to give treatment, correct?THE WITNESS: Correct.THE COURT: But do you actually ask those questions? Or do you just assume thatâs the parent thatâs bringing the child?THE WITNESS: No, no, no, because a lot of times, patients come without a mom or a dad, and then the triage nurse would actually come up to us and say, Doctor Grannum, this patient doesnât have a mom or dad, you know, and I mean, they come and they ask us.THE COURT: Is that on the first visit or in the follow up visit? THE WITNESS: Even on a follow-up visit, even on a follow-up visit. THE COURT: Okay. Tell me about that process.THE WITNESS: Iâm not sure exactly what the triage nurse asks, but if itâs the patient comes into the front desk, if itâs not mom and itâs not dad and they donât have a paper with their name on it, and I guess they present an ID showing that this is who they say they are, usually we donât see the patient.THE COURT: Okay. So, on the follow-up visits, they have to show documentation, thatâs just yâallâs procedure?THE WITNESS: Right. It has to be mom or dad, or there has to be a letter that the person brings in with his or her name on it authorized by mom or dad.THE COURT: Oh, just any letter would do saying, hey . . . I give authority to [name] to take my child to the clinic?THE WITNESS: Actually, we also have a form from our clinic that we give to mom and dad if they want to send the patient with somebody else. We actually have our own form.THE COURT: Oh, okay. But as long as you have that form, they will see the child?THE WITNESS: And it has to be in the chart.THE COURT: And they ask for that each time, even though the child has already been cleared for treatment?THE WITNESS: Itâs â itâs routine that if itâs not mom and dad and if that person who is bringing the child in, if that name is not on the form, that person cannot bring the child in.THE COURT: And is there any such form like that for [AJV] -ÂTHE WITNESS: I can check. THE COURT: â that was filled in at the first visit? THE WITNESS: I can check. JUROR: May I ask a question?THE COURT: You canât, Iâm sorry. You may not, but if you will write it down, Iâll consider it. Any objections to a juror asking a question or writing it down?[DEFENSE COUNSEL]: As long as itâs done the proper way, Judge, which is through the foreperson.THE COURT: Well, they donât have a foreperson.[DEFENSE COUNSEL]: Well, not yet, but that would be my suggestion.THE COURT: And we need to wait until yâall are deliberating. Doctor, is that a clinic policy?THE WITNESS: Yes.THE COURT: And do you know what the purpose of that is? THE WITNESS: No.THE COURT: Because, I mean, you have already â what kind of â was the child on insurance, Medicare, Medicaid? What was the child [AJV] -ÂTHE WITNESS: I donât know, but I can look. The first pay says sliding fee, that usually means there is no insurance, but I need to keep looking. And the the second page says Medicare -ÂTHE COURT: So if he is on Medicare.THE WITNESS: And then the third page says sliding fee, fourth says sliding fee, sliding.THE COURT: So sliding means that they are going to check your income, and then charge you based on that, am I right?THE WITNESS: Yes, thatâs what that means. But maybe thereâs another form that says â usually when the babies come in first, they donât have the Medicare yet, and it says sliding, and then later on, if they get their Medicare, then there is something else, and then it says Medicaid here on page 20.THE COURT: And Doctor, do you know â you said you donât know the reason for that.THE WITNESS: Yeah.THE COURT: And what evidence do they have as to who the parent is?THE WITNESS: I donât know what they do at the front desk. Iâm assuming they ask for an ID or âTHE COURT: But how do you mean?THE WITNESS: A birth certificate or something, I donât know.THE COURT: Do they keep a copy of the birth certificate?THE WITNESS: Not here, I donât see one here, and I donât think they do, but I donât know.THE COURT: So, I could show up and say thatâs my child, treat him. THE WITNESS: Right.THE COURT: How would you know otherwise?THE WITNESS: Right. Yeah, thatâs a question I would have to ask the front desk.THE COURT: Okay. All right. Thank you. Because I know â maybe my doctor is very lax because they let any of my sisters and any of my brothers take my kids.THE WITNESS: No, we have to actually have -ÂTHE COURT: When I am in trial, I canât go, so -ÂTHE WITNESS: I am sure that can be done there once there is something written in the chart that says that those people are allowed to see you kid.THE COURT: Because you are actually the one that is going to treat somebody.THE WITNESS: Right, but I work at Su Clinica, itâs not my private clinic, and the front desk sets their rules.THE COURT: I see.THE WITNESS: And we follow orders. Itâs not my own clinic, Iâm sorry.THE COURT: No, thank you for your service. I appreciate what you do.THE WITNESS: Thank you.