David Whiteley v. State of Texas ( 2001 )

                                                         In The

                                                Court of Appeals

                       Sixth Appellate District of Texas at Texarkana

                                            ­­­­­______________________________

                                                            No. 06-00-00233-CR

                                            ______________________________

                                         DAVID WHITELEY, Appellant

                                                                V.

                                    THE STATE OF TEXAS, Appellee

                                      On Appeal from the 88th Judicial District Court

                                                            Hardin County, Texas

                                                           Trial Court No. 14,607

                                         Before Cornelius, C.J., Grant and Ross, JJ.

                                                         Opinion by Justice Ross

                                               Concurring Opinion by Justice Grant

                                                                   O P I N I O N

David Whiteley appeals from the adjudication of his guilt following the revocation of his deferred adjudication community supervision.  At the revocation hearing, he was adjudged guilty of indecency with a child by sexual contact and was then sentenced to twenty years' imprisonment.  Whiteley contends on appeal that he did not receive due process in the sentencing phase of the proceeding because the trial judge had decided what sentence to impose at the time Whiteley was placed on deferred adjudication community supervision.  He argues that the judge's commitment to a predetermined outcome deprived him of the benefit of an impartial judge and of his liberty without due process of law.

Whiteley was placed on community supervision on December 6, 1999.  The evidence at the revocation hearing showed that Whiteley failed to report to his supervision officer during the months of April and May, 2000, and that he was $200.00 in arrears on his monthly $40.00 community supervision fees. The evidence also showed that although he had paid $325.00 toward his attorney's fees, he remained $125.00 in arrears on those fees.  The attorney's fees were to be paid in a lump sum payment, and there was no provision for monthly payments of these fees.  The evidence also showed that Whiteley was ordered to perform 300 hours of community service within the first six months of his community supervision period and that he had performed only twenty hours through May 2000.  The evidence finally showed that, although he had participated, he had not completed a sex offender program, as ordered.

A defendant may not appeal the trial judge's determination to adjudicate an original offense.  This denies a court of appeals any jurisdiction to entertain or consider an appeal, on any grounds, from the decision to adjudicate.  Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2001); Connolly v. State, 983 S.W.2d 738, 740-41 (Tex. Crim. App. 1999); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992).

This is not an appeal from that determination. Rather, Whiteley contends that after adjudication the trial judge refused to consider the full range of punishment that could be applied and that the judge's failure to do so violated Whiteley's right to due process.  This contention is based on authority holding that an arbitrary refusal to consider the entire range of punishment constitutes a denial of due process.  See McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983); see also Hull v. State, 29 S.W.3d 602, 604-05 (Tex. App.SHouston [1st Dist.] 2000, pet. granted); Earley v. State, 855 S.W.2d 260, 262-63 (Tex. App.SCorpus Christi 1993), pet. dism'd, improvidently granted, 872 S.W.2d 758 (Tex. Crim. App. 1994); Howard v. State, 830 S.W.2d 785, 787-88 (Tex. App.SSan Antonio 1992, pet. ref'd); Jefferson v. State, 803 S.W.2d 470, 471-72 (Tex. App.SDallas 1991, pet. ref'd) (all holding remarks indicating judge was delivering promised outcome showed lack of impartial consideration of both relevant evidence and statutory sentencing options); Fielding v. State, 719 S.W.2d 361, 368 (Tex. App.SDallas 1986, pet. ref'd) (Guittard, C.J., dissenting).  In the absence of a clear showing to the contrary, we are to presume the trial judge was a neutral and detached officer.  Earley, 855 S.W.2d at 262.

Whiteley maintains reversal is required because the judge assessed a "promised" punishment.  He points to the following comments by the trial judge, made immediately before the imposition of deferred adjudication community supervision.

THE COURT:      Now, you understand and I want you to -- let's be clear, Mr. Whiteley, that you have to follow the terms of this probation; that if you violate the terms of this probation, I'm going to sentence you to prison for 20 years.  Do you understand that?

THE DEFENDANT:          Yes, sir.

THE COURT:      With that understanding, you still want me to accept the plea bargain and sign the Judgment?

THE DEFENDANT:          Yes, sir.

The initial question is whether the issue has been preserved for appellate review. This Court reviewed a similar situation in Cole v. State, 757 S.W.2d 864 (Tex. App.STexarkana 1988, pet. ref'd).[1]  In that case, the defendant claimed the trial judge prejudged his sentence and failed to consider mitigating evidence.  We noted the defendant had been given the opportunity to object, but failed to raise any objection to the punishment or the procedures followed, either at the initial granting of deferred adjudication or at the punishment hearing or sentencing.  We held that error was waived for failure to voice an objection to the imposition of punishment or to the trial judge's alleged failure to consider the evidence. Id. at 865-66 (trial judge wrote on docket sheet defendant would receive seventy‑five years' imprisonment if he violated terms of deferred adjudication); see also McClenan, 661 S.W.2d at 110. Appellate courts do not consider any error counsel could, but did not, call to the trial judge's attention when the trial judge could have avoided or corrected the error.  Cole, 757 S.W.2d at 866.

The Dallas Court of Appeals has since agreed with our reasoning in a factually similar case, likewise concluding that because there was no objection made to the procedure or the punishment, the claim of error had been waived.  Cole v. State, 931 S.W.2d 578, 580 (Tex. App.SDallas 1995, pet. ref'd).

There are cases in which appellate courts have concluded waiver was inapplicable, but they involved situations where no punishment hearing was conducted, and thus the defendant had no real opportunity to object.[2]  That is not our situation.  In this case, Whiteley did not object to the trial judge's comments concerning a twenty-year sentence when he was initially placed on deferred adjudication community supervision, nor did he object at the sentencing phase of his revocation hearing when there was a clear opportunity to do so.  Further, it is apparent from the judge's initial soliloquy at the beginning of the punishment hearing he was considering various options regarding Whiteley's incarceration or continuance on community supervision and soliciting counsel's comments and suggestions about a proper resolution.

In light of these facts, we conclude the claim of error was not preserved for appellate review.  Even if it had been, the record does not show the trial judge had predetermined the sentence in this case.  The contention of error is overruled.     

We affirm the judgment.

Donald R. Ross

Justice                                   

                                                         CONCURRING OPINION

In a deferred adjudication, the trial judge is bound by law to consider the entire range of punishment.  When the trial judge prejudges the sentence before the revocation, the judge has not provided a consideration of the range of punishment as required by law.  This is a fundamental abuse of the system that the Legislature has set up on deferred adjudications.  Such actions deny the defendant due process when the trial judge refuses to consider the sentence made before hearing the evidence on punishment.  Howard v. State, 830 S.W.2d 785 (Tex. App.SSan Antonio 1992, pet. ref'd).

I strongly expressed my view of the trial judge's violation of the proper procedure in this situation in the case of Cole v. State, 757 S.W.2d 864 (Tex. App.STexarkana 1988, pet. ref'd).

In the present case, it is true that a defendant has an opportunity to seek recusal of the trial judge before the revocation proceedings based on the trial judge's statements at the time of granting the deferred adjudication.  Furthermore, the trial judge expressed a willingness to consider different ranges of punishment at the time of the revocation hearing.  The trial judge did sentence the defendant to the maximum number of years the judge had predestined by statements made at the time the defendant was granted the deferred adjudication.  However, in light of the fact that the judge heard and considered the evidence on punishment, and taking into account his preliminary remarks at this hearing, there is no showing that the judge did not consider the other ranges of punishment at the hearing.

I would urge the Texas Court of Criminal Appeals to address this issue in terms of clarifying that the law does not permit a court granting deferred adjudication to announce the sentence before adjudication.  This is a matter that has not been addressed by the Texas Court of Criminal Appeals. To allow such a procedure effectively denies the state, as well as the defendant, the opportunity to have the punishment determined after the trial judge has heard evidence from both sides in regard to punishment.

Ben Z. Grant

Justice

Date Submitted:        August 30, 2001

Date Decided:           October 19, 2001

Do Not Publish

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[1]Chief Justice Cornelius wrote the opinion, Justice Bleil concurred, and Justice Grant dissented.

[2]In Watson v. State, 884 S.W.2d 836, 838-39 (Tex. App.SEl Paso 1994), rev'd on other grounds, 924 S.W.2d 711 (Tex. Crim. App. 1996), the court distinguished its case because the defendant had no opportunity to object before sentence was pronounced.  It noted that although due process claims may be preserved in a motion for new trial, it is not necessary to raise a point in a motion for new trial in order to preserve the claim for review on appeal.

The Dallas court, in Jefferson v. State, 803 S.W.2d 470, 472 (Tex. App.SDallas 1991, pet. ref'd), concluded that a defendant could not complain that he needed to request relief (recusal in that case) until after the judge had assessed punishment.  The court concluded the appellant did not knowingly waive the right to a fair and unbiased tribunal.  The court also pointed out that until the judge assesses punishment, the defendant is entitled to assume that the judge will perform his or her solemn duty to assess punishment on consideration of relevant evidence.  Id.  The court also stated that once the judge assesses punishment based on factors such as his or her promised punishment period, any recusal motion or objection would be futile.  Id.

The San Antonio court reviewed a similar situation, concluding there was no indication the appellant had knowingly waived his right to a fair and impartial forum and stating that the record did not disclose that a lesser sentence than ninety-nine years was ever considered.  Howard v. State, 830 S.W.2d 785, 788-89 (Tex. App.SSan Antonio 1992, pet. ref'd).