David Eugene Fields v. State ( 2015 )

Affirmed as Modified; Opinion Filed July 8, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01399-CR
No. 05-13-01400-CR
DAVID EUGENE FIELDS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F08-62384-Q and F12-51531-Q
MEMORANDUM OPINION
Before Justices Lang, Brown and Whitehill
Opinion by Justice Lang
These appeals follow the trial court’s judgments revoking David Eugene Fields’s
community supervision for a 2009 conviction (appellate cause number 05-13-01399-CR, “the
first case”) and a 2012 conviction (appellate cause number 05-13-01400-CR, “the second case”)
for failing to register as a sex offender. Fields raises three issues. His first issue asserts error as
to both cases, specifically that the trial judge abused her discretion and exhibited bias and
partiality at punishment when she considered unproven, extraneous offenses outside the record.
Fields’s second and third issues assert error only as to the second case and contend the trial
court’s judgment incorrectly reflects he was convicted of a second degree felony in violation of
section 62.10 of the Texas Code of Criminal Procedure instead of a third degree felony in
violation of section 62.102 of the code. We affirm the judgment in appellate cause number 05-
13-01399-CR and, as modified, affirm the judgment in appellate cause number 05-13-01400-CR.
I. BACKGROUND
Fields’s duty to register as a sex offender stems from convictions in May 2004 for sexual
assault and compelling prostitution. See TEX. CODE CRIM. PROC. ANN. arts.
62.001(5)(A),(B),(K), 62.101(a)(1),(2) (West Supp. 2014). The first case arose after he failed to
comply with the initial registration requirements within seven days of his release from prison for
the sexual assault offense. See id. arts. 62.051, 62.102(a). The trial court assessed a ten year
sentence, suspended imposition of the sentence, and placed Fields on community supervision for
three years. In January 2011, the State moved to revoke probation, asserting, among other
violations, that Fields had tested positive for PCP and committed the offenses of public
intoxication and possession of a controlled substance. The State subsequently withdrew its
motion, but the trial court modified the conditions of supervision based on the violations alleged
in the motion. In February 2012, the State again moved to revoke Fields’s probation. The trial
court denied the motion, but extended Fields’s period of supervision for seven years and
modified the terms of supervision to include, among other conditions, participation in an
electronic monitoring program.
The State’s 2012 motion to revoke coincided with Fields’s arrest in the second case. This
case arose after Fields failed to comply with the registration requirements that he ensure his
registration information is kept accurate, provide advance notice of any intended change of
address, and reside at the registered address. See id. arts. 62.058, 62.102(a). The punishment for
this offense was enhanced from that of a third degree felony to a second degree felony as a result
of his failure to register conviction in the first case. See id. art. 62.102(b)(2),(c). Fields was
convicted of this offense and assessed a ten year sentence. However, the trial court suspended
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the sentence and placed Fields on community supervision for ten years, under terms identical to
the ones in the first case.
In June 2013, the State moved to revoke probation in both cases, asserting Fields failed to
pay certain fees and comply with the home arrest requirement of the electronic monitoring
program. Fields pleaded not true to the allegations in the State’s motions. Following testimony
at the hearing on the motions showing Fields had “anywhere from 25 to 50” violations for
“unapproved leaves and entries to his house” between January and May 2013, the trial court
found the allegations true, revoked probation in each case, and assessed the concurrent ten year
sentences.
II. BIAS AND PARTIALITY AT PUNISHMENT
Fields’s claim in his first issue of abuse of discretion, bias, and partiality stems from the
following exchange between defense counsel and the trial judge during Fields’s closing
argument at punishment:
[DEFENSE COUNSEL]: Your Honor, these are – these are registration violations.
And the Court is aware that there are – you know, that a lot
of people mess up with, you know, in reporting, in
notifying one agency, not notifying the other. He’s not
committed any new offenses. He’s been on probation - -
[TRIAL JUDGE]: That we know of.
[DEFENSE COUNSEL]: Correct, which is the presumption that the Court should
have, that he - -
[TRIAL JUDGE]: No, I don’t have to have that presumption.
[DEFENSE COUNSEL]: A presumption - -
[TRIAL JUDGE]: Why do you think I got him on electronic monitor?
Because I’m worried he’s gonna go out and abuse a child,
have sex with a child.
[DEFENSE COUNSEL]: And there’s no evidence of that here, Your Honor. There’s
not even a preponderance of the evidence that he’s
committed a new offense.
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[TRIAL JUDGE]: [Counsel], he’s high risk for that very reason. He’s on leg
monitor for that very reason. That’s why I’ve got him on
there. I am not going to ignore that he is a registered sex
offender. I’m not going to treat him like a dope case. I’m
not going to do it.
Fields asserts the trial judge’s comments reflect she “had a sort of obligation to assume [he] was
out committing new sexual offenses during his probation and therefore, had to keep track of his
whereabouts by electronic monitoring.” Further, he asserts the comments “reveal an improper
consideration of evidence outside the record when determining Fields’s sentence, and shows the
trial court’s bias entered into the sentencing decision.”
A. Applicable Law and Standard of Review
A trial judge has wide discretion in determining punishment. See Grado v. State, 445
S.W.3d 736, 739 (Tex. Crim. App. 2014); Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.
App. 1984). In exercising this discretion, however, the trial judge must remain impartial. See
Grado, 445 S.W.3d at 739. Exercising the ability to disregard extraneous information and render
a decision upon the record is one of the skills expected of the judiciary. See Liteky v. U.S., 510
U.S. 540, 562 (1994) (Kennedy, J., concurring). Because judges, “if faithful to their oath,
approach every aspect of each case with a neutral and objective disposition,” they enjoy a
presumption of impartiality, and a claim of bias by a judge will rarely succeed. See id.; Celis v.
State, 354 S.W.3d 7, 24 (Tex. App,—Corpus Christi 2011), aff’d, 416 S.W.3d 419 (Tex. Crim.
App. 2013); Ex parte Ellis, 275 S.W.3d 109, 116 (Tex. App.—Austin 2008, no pet.). The term
“bias” does not encompass “all unfavorable rulings towards an individual or her case.”
Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d).
Rather, “bias” connotes “a favorable or unfavorable disposition or opinion that is somehow
wrongful or inappropriate, either because it is underserved . . . rests upon knowledge that the
subject ought not to possess . . ., or . . . is excessive in degree.” Id. (quoting Liteky, 510 U.S. at
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550). An appellate court will sustain a claim of bias and partiality only if, from a review of the
entire record, it finds judicial impropriety was committed and, as a result, the complaining party
suffered probable prejudice. Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.—Houston
[14th Dist.] 2007, pet. ref’d).
B. Application of Law to Facts
Viewing the record as a whole, we conclude the trial court did not abuse its discretion in
imposing the ten-year sentences. In reaching this conclusion, we observe defense counsel’s
argument in closing followed the State’s arguments that it was seeking a “high prison sentence”
in light of (a) Fields’s arrest in the second case while he was on probation in the first case, and
(b) the large number of “unapproved leave and entries” Fields had to his house. In his argument,
defense counsel sought to minimize the seriousness of the facts before the trial court by arguing
the offenses at issue were only registration violations, and he had committed no new offenses.
Although the trial judge interjected Fields had not committed any new offenses “that we know
of,” she explained she was concerned about Fields because he is a “registered sex offender” and
“[t]hat’s why I’ve got him on [leg monitor].” The record reflects she sentenced him shortly after
the complained-of comment, but nothing in the record suggests she based the sentences on any
extraneous or unproven potential offenses. To the contrary, as the State points out and the record
reflects, she revoked Fields’s probation and assessed a period of confinement only after her
multiple efforts to continue Fields on probation failed. In fact, she even noted, prior to the
parties’ closing arguments, as follows:
Oh boy, I think I have worked so hard with this Defendant. I think I worked so
hard with him, harder, I think, than most judges would, you know. Anything
having to do with sex abuse cases, most judges aren’t even going to take a chance.
I’ve given him many chances. I’ve tried the best that I can . . . What else? What
else can I do to make him realize that he can’t just do whatever he wants to do all
the time?
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Rather than reflecting an “unfavorable disposition . . . that is somehow wrongful or
inappropriate, either because it is undeserved . . . rests upon knowledge [the judge] ought not to
possess . . . or . . . is excessive in degree,” the ten year sentences, which fall within the
applicable range of punishment, are commensurate with the facts before the trial court. See
Abdygapparova, 243 S.W.3d at 198 (quoting Liteky, 510 U.S. at 550); see also TEX. PENAL
CODE ANN. §§ 12.33 (providing range of punishment for second degree felony is “any term of
not more than 20 years or less than 2 years”), 12.34 (providing range of punishment for third
degree felony is “any term of not more than 10 years or less than 2 years”). We decide Fields’s
first issue against him.
III. MODIFICATION OF JUDGMENT
Fields’s second and third issues complaining of errors in the trial court’s judgment in the
second case are not contested by the State, and we agree the judgment in that case incorrectly
recites appellant was convicted of a second degree felony pursuant to article 62.10 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 62.102(a), (b)(2), (c) (stating
elements of offense of failure to comply with registration requirements, classifying offense as a
felony of the third degree where duty to verify registration is annual, and enhancing punishment,
for that offense, to the next highest degree of felony). Because an appellate court has the
authority to modify an incorrect judgment to make the record speak the truth, we decide these
issues in Fields’s favor and modify the judgment to reflect Fields was convicted of a third degree
felony pursuant to article 62.102 of the code of criminal procedure. See TEX. R. APP. P. 43.2(b);
TEX. CODE CRIM. PROC. ANN. art. 62.102(a), (b)(2), (c); Bigley v. State, 865 S.W.2d 26, 27-28
(Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991,
pet. ref’d).
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IV. CONCLUSION
We affirm the trial court’s judgment in 05-13-01399-CR and, as modified, affirm the trial
court’s judgment in 05-13-01400-CR.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
131399F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DAVID EUGENE FIELDS, Appellant On Appeal from the 204th Judicial District
Court, Dallas County, Texas
No. 05-13-01399-CR V. Trial Court Cause No. F08-62384-Q.
Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee Brown and Whitehill participating.
Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment.
Judgment entered this 8th day of July, 2015.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DAVID EUGENE FIELDS, Appellant On Appeal from the 204th Judicial District
Court, Dallas County, Texas
No. 05-13-01400-CR V. Trial Court Cause No. F12-51531-Q.
Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee Brown and Whitehill participating.
Based on the Court’s opinion of this date, we MODIFY the section of the trial court’s
judgment entitled “Degree of Offense” to reflect 3RD DEGREE FELONY instead of 2ND
DEGREE FELONY. We further MODIFY the section of the trial court’s judgment entitled
“Statute for Offense” to reflect 62.102 of the Texas Code of Criminal Procedure instead of
62.10 Code of Criminal Procedure.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 8th day of July, 2015.
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