William Columbus Merrell, III v. State ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-07-121 CR ____________________

WILLIAM COLUMBUS MERRELL, III, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 253rd District Court Liberty County, Texas Trial Cause No. CR23411

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MEMORANDUM OPINION

William Columbus Merrell, III appeals his conviction for indecency with a child. In accordance with a plea bargain agreement, the trial court deferred adjudication of guilt and placed Merrell on community supervision for five years. The State subsequently moved to adjudicate. The trial court found eight separate violations of the community supervision order to be true, sentenced Merrell to twenty years of confinement and imposed a $500 fine. Adjudication and sentencing occurred in the course of a single hearing. On appeal, the appellant complains that he was denied his right to have an impartial judge, that he was denied due process and due course of law because the trial court did not conduct a separate hearing on punishment, and that the judgment is void because the trial court failed to adjudicate his guilt. We affirm.

In his first issue, Merrell argues that in pronouncing sentence the trial court judge exhibited bias by stating "I find that in this circumstance you are just lucky this wasn't a first degree felony." Merrell contends this comment establishes a violation of his right to a neutral and detached hearing officer. See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Earley v. State, 855 S.W.2d 260, 262 (Tex. App.--Corpus Christi 1993), pet. dism'd, 872 S.W.2d 758 (Tex. Crim. App. 1994). Merrell concedes that the timing of the comment distinguishes his case from Earley, but argues Earley applies because the trial court did not receive punishment evidence. In Brumit v. State, the Court of Criminal Appeals recognized that timing was the crucial factor in Earley, because the timing of his comments showed that the trial court judge predetermined punishment. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). Among other comments made immediately before pronouncing sentence, the trial court judge in Brumit told the defendant that a case long ago made the judge feel that anyone who harmed a child should be put to death. Id. at 640. The Court of Criminal Appeals held the judge's comments did not expose an unconstitutional bias. Id. at 645. In Merrell's case, the trial court's comment may merely have been a reference to the indictment, which accused Merrell of indecency by contact and included a repeat felony offender allegation. See Tex. Pen. Code Ann. § 12.42(b) (Vernon Supp. 2006). Furthermore, the comment followed a lengthy hearing that included defense testimony from a psychologist who described both Merrell's sex offender evaluation and treatment and the services that would be available in the prison system. Neither the imposition of a pre-determined punishment nor the exclusion of evidence relevant to punishment is established by this record. We overrule issue one.

In his second issue, Merrell contends the trial court deprived Merrell of the opportunity to present punishment evidence. See Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992). As noted on review of his first issue, Merrell did present evidence relevant to punishment during the hearing. Merrell did not request permission to present additional evidence and neither objected during the hearing nor raised the issue in his motion for new trial. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999)(motion for new trial did not preserve Issa error for review because defendant was provided an opportunity to object during the hearing); Pearson v. State, 994 S.W.2d 176 (Tex. Crim. App. 1999) (no error occurred where defendant was provided opportunity to present evidence relevant to punishment). Merrell failed to preserve error for review. Tex. R. App. P. 33.1. We overrule issue two.

In his third issue, Merrell argues the judgment is void because the trial court failed to utter the phrase "your guilt is adjudicated." The trial court's failure to verbalize the adjudication of guilt does not render the judgment void. Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim. App. 1978). "[A] defendant has been adjudged guilty when the verdict convicting him has been received and accepted by the trial judge." Jones v. State, 795 S.W.2d 199, 201 (Tex. Crim. App. 1990)(emphasis in original). "No further ritual or special incantation from the bench is necessary to accomplish an adjudication of guilt beyond the pronouncement of sentence as required by law." Id. We overrule issue three and affirm the judgment.

AFFIRMED.

_______________________________

STEVE McKEITHEN

Chief Justice

Submitted on September 4, 2007

Opinion Delivered September 19, 2007

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.