Trivon Nashon Joubert v. State ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-13-00375-CR
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TRIVON NASHON JOUBERT, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 12-13399
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MEMORANDUM OPINION
Pursuant to a plea bargain agreement, appellant Trivon Nashon Joubert
entered a plea of guilty to the offense of aggravated robbery, a first-degree felony.
See Tex. Penal Code Ann. § 29.03(a)(2), (b) (West 2011). The trial court found
the evidence sufficient to find Joubert guilty, but deferred further proceedings,
placed Joubert on community supervision for seven years, and ordered Joubert to
pay a fine of $1,000 and restitution in the amount of $69.50. Thereafter, the State
filed a motion to revoke Joubert’s unadjudicated community supervision. The State
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alleged that Joubert violated the conditions of his community supervision by
committing the offense of burglary of a habitation. During the revocation hearing,
Joubert pleaded “true” to this allegation. The trial court found that Joubert violated
the conditions of his community supervision, revoked his community supervision,
found him guilty of aggravated robbery, and sentenced him to forty-five years in
prison.
Failure to Consider Full Range of Punishment
In his first point of error, Joubert argues that the trial court violated his right
to due process by arbitrarily refusing to consider the entire range of punishment for
his offense. Joubert contends that the trial court was not a fair and impartial
tribunal because the trial judge “berated” him during the revocation hearing and
sentenced him to the “maximum term” without considering a lesser sentence and
without considering mitigating circumstances presented by Joubert. The State
argues that Joubert has not clearly demonstrated that the trial court was biased or
that it arbitrarily failed to consider the full punishment range. We agree with the
State.
The Due Process Clause of the Fourteenth Amendment provides that no
State may “deprive any person of life, liberty, or property, without due process of
law[.]” See U.S. CONST. amend. XIV, § 1. Similarly, the Texas Constitution
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provides that “[n]o citizen of this State shall be deprived of life, liberty, property,
privileges or immunities . . . except by the due course of the law of the land.” Tex.
Const. art. I, § 19. “The touchstone of due process is fundamental fairness.” Euler
v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007). Accordingly, “[t]he
Constitutional mandate of due process requires a neutral and detached judicial
officer who will consider the full range of punishment and mitigating evidence.”
Buerger v. State, 60 S.W.3d 358, 363-64 (Tex. App.—Houston [14th Dist.] 2001,
pet. ref’d) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786-87 (1973)). A trial court
denies a defendant due process by arbitrarily refusing to consider the entire range
of punishment for an offense. Ex parte Brown, 158 S.W.3d 449, 454, 456 (Tex.
Crim. App. 2005). Likewise, a trial court denies a defendant due process when it
refuses to consider mitigating evidence and imposes a predetermined punishment.
Buerger, 60 S.W.3d at 364. However, in the absence of a clear showing to the
contrary, a reviewing court must presume that the trial court was neutral and
detached in sentencing the defendant and considered the full range of punishment.
See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Jaenicke v.
State, 109 S.W.3d 793, 796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (op.
on reh’g).
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In order to preserve appellate review of a complaint that the trial court
arbitrarily refused to consider the entire range of punishment, the defendant must
make a timely objection at the trial court level. See Tex. R. App. P. 33.1; Teixeira
v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref’d). “This rule
ensures that trial courts are provided an opportunity to correct their own mistakes
at the most convenient and appropriate time—when the mistakes are alleged to
have been made.” Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002). In
the present case, the record does not reflect that Joubert objected to the trial court’s
alleged failure to consider the full range of punishment at the trial court level.
Nevertheless, Joubert argues that under the Texas Court of Criminal Appeals’s
decision in Ex parte Brown, he was not required to make a contemporaneous
objection because the evidence that the court failed to consider the full range of
punishment was ambiguous. See 158 S.W.3d at 453 & n.3. Even if we were to
assume that Joubert’s contention is correct and that he was excused from the long-
standing rule that errors in sentencing are waived by the failure to object, we
conclude that the record does not support Joubert’s argument that the trial court
arbitrarily refused to consider the entire range of punishment for his offense.
The punishment range for aggravated robbery, a first-degree felony, is five
to ninety-nine years or life and a fine of up to $10,000. See Tex. Penal Code Ann.
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§§ 12.32, 29.03(b) (West 2011). The trial court’s forty-five year sentence clearly
falls within the middle of this range and does not impose the “maximum term,” as
Joubert contends in his brief. See id. § 12.32. Further, the record reflects that the
trial court heard arguments from both the prosecutor and defense counsel and
reviewed the evidence before deciding to revoke Joubert’s community supervision
and assessing punishment. Specifically, the record reflects that before making his
decision, the trial court asked for defense counsel’s comments. Joubert’s attorney
advised the trial court of several mitigating circumstances, including Joubert’s
attempts to gain employment while on probation, his completion of a portion of his
community service hours, his lack of criminal convictions, his successful
completion of juvenile probation, his age, and the fact that he had dependents to
support. The trial court also reviewed a letter from Joubert’s mother requesting
leniency and provided Joubert with an opportunity to speak on his own behalf.
The record, however, also reflects that the trial court heard argument from the State
and reviewed evidence of several aggravating factors, including the violent nature
of Joubert’s underlying aggravated robbery offense and his subsequent failure to
refrain from criminal behavior, despite being placed on “zero tolerance”
community supervision. During the revocation hearing, the trial court reviewed a
copy of the presentence investigation report for Joubert’s underlying aggravated
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robbery offense. The report indicated that Joubert and another individual robbed a
Dunkin Donuts restaurant at gunpoint, that the robbery was Joubert’s idea, that the
victim felt her life was in danger, and that Joubert stated afterward that he had no
remorse for committing the robbery. During the revocation hearing, the trial court
questioned Joubert regarding his remorse following the aggravated robbery
offense, and Joubert again admitted that he had felt no remorse when he committed
the offense. Further, the record reflects that while on probation, Joubert committed
the additional offense of burglary of a habitation, a second-degree felony. Joubert
admitted at the revocation hearing that one of the items he had stolen during the
burglary was a firearm. After receiving argument from both sides regarding the
mitigating and aggravating factors, the trial judge inquired of the parties, “So,
what’s fair? I got anywhere from five to 99 years or life. What’s the right thing to
do with a person that demonstrates that he’s going to continue to do whatever he
wants to do and put people in harm’s way?”
Nothing in the record suggests that the trial judge refused to consider the
mitigating circumstances presented by Joubert’s attorney, imposed a predetermined
punishment, or arbitrarily refused to consider the entire range of punishment in
assessing Joubert’s sentence. Instead, the record reflects that the trial court
listened to the arguments presented by both sides, reviewed the evidence in the
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record before it, and determined that forty-five years was an appropriate
punishment. Further, the judge’s comments during the revocation hearing
demonstrate that he was aware of the range of punishment for aggravated robbery,
and there is nothing in the record that rebuts the presumption that he considered
this range in assessing Joubert’s punishment. We conclude, therefore, that Joubert
has not met his burden of demonstrating that the trial court arbitrarily failed to
consider the full range of punishment.
We also find nothing in the record to establish that the trial judge was biased
or prejudiced or otherwise failed to remain detached and neutral during the
revocation hearing. “[T]he terms ‘bias’ and ‘prejudice’ do not encompass all
unfavorable rulings towards an individual, or [his] case[.]” Abdygapparova v.
State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). Rather,
such terms “must ‘connote a favorable or unfavorable disposition or opinion that is
somehow wrongful or inappropriate, either because it is undeserved, or because it
rests upon knowledge that the subject ought not to possess . . . , or because it is
excessive in degree.’” Id. (quoting Liteky v. United States, 510 U.S. 540, 550
(1994)). “Judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to counsel, the parties, or their cases, ordinarily do
not support a bias or partiality challenge.” Dockstader v. State, 233 S.W.3d 98,
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108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Further, “expressions of
impatience, dissatisfaction, annoyance, and even anger” do not establish bias or
partiality. Liteky, 510 U.S. at 555-56. Rather, the defendant must show “a ‘deep-
seated favoritism or antagonism that would make fair judgment impossible.’”
Abdygapparova, 243 S.W.3d at 198 (quoting Liteky, 510 U.S. at 555).
Joubert argues that the trial court’s failure to remain detached and neutral is
evidenced by the fact that the trial judge “berated” him during the revocation
hearing. Joubert, however, fails to identify any specific statement, action, or
inaction by the trial judge that he contends constitutes a failure to remain impartial
or a deep-seated favoritism or antagonism that would make fair judgment
impossible. After conducting an independent review of the record, we do not find
anything in the record indicating that the trial court failed to remain detached and
neutral during the revocation hearing. While the trial judge’s comments to Joubert
during the revocation hearing reflect the court’s concern over the seriousness of
Joubert’s offenses, his lack of remorse for his criminal behavior, and his refusal to
refrain from engaging in criminal conduct while on community supervision, these
comments are insufficient to establish that the trial court failed to consider the law
and the relevant facts in a detached and neutral manner. We perceive no denial of
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due process under the state or federal constitution. Accordingly, we overrule
Joubert’s first point of error.
Cruel and Unusual Punishment
As part of his first point of error, Joubert also argues that the trial court
punished him for being a drug addict, which, he contends, “constitutes ‘cruel and
unusual punishment’ in violation of the Eighth and Fourteenth Amendments to the
United States Constitution.” Joubert’s argument concerning this point consists of
three sentences in his brief. Joubert does not cite to any portion of the record in
support of this argument, and our review of the record reveals that Joubert’s drug
use, if any, or his purported status as a “drug addict” was not raised by anyone at
any point during the revocation hearing. Accordingly, we overrule this point of
error.
Assessment of Fine
In his second point of error, Joubert contends the trial court erred by
including a $500 fine in its written judgment when the court did not orally
pronounce the fine at the time of sentencing during the revocation hearing. It is
well-established that the trial court must orally pronounce a defendant’s sentence
in the defendant’s presence. Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (West
Supp. 2013); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). The
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judgment is merely the written declaration and embodiment of the trial court’s oral
pronouncement. See Taylor, 131 S.W.3d at 500. When there is a conflict between
the oral pronouncement of the sentence and the written judgment, the oral
pronouncement controls. Id. A fine is a form of punishment; therefore, it cannot
be included in the written judgment of conviction unless it was included in the oral
pronouncement of sentence. Id. at 500–02 (concluding that fine should be deleted
from written judgment because it was not orally pronounced when deferred
adjudication was revoked).
After the trial court revoked Joubert’s community supervision and
adjudicated him guilty of aggravated robbery, the court orally pronounced
Joubert’s sentence at forty-five years’ imprisonment. The transcript from the
revocation hearing does not reflect that the trial court orally pronounced a fine.
Accordingly, we must examine the written judgment adjudicating guilt to
determine whether it impermissibly assesses a fine against Joubert. On the first
page of the judgment, the space underneath the heading “Fine” is left blank. On
the second page, the judgment orders “Defendant punished as indicated on page 1”
and orders “Defendant to pay all fines . . . as indicated on page 1.” As noted, page
1 of the judgment does not assess a fine. We conclude, therefore, that the
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judgment does not assess a fine against Joubert. We overrule Joubert’s second
point of error.
AFFIRMED.
_____________________________
CHARLES KREGER
Justice
Submitted on April 9, 2014
Opinion Delivered June 25, 2014
Do not publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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