John Matte v. State ( 2012 )

Affirmed and Memorandum Opinion filed December 20, 2012.
In The
Fourteenth Court of Appeals
NO. 14-12-00067-CR
JOHN MATTE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Court Cause No. 09-07779
MEMORANDUM OPINION
Appellant, John Matte, appeals from the trial court’s judgment revoking his
deferred adjudication community supervision and finding him guilty of the offense
of assault on a family member. See Tex. Penal Code Ann. § 22.01(b)(2) (West
2011). He contends that the trial court failed to consider the full range of
punishment in sentencing him to ten years’ imprisonment. We disagree and
affirm.
BACKGROUND
Appellant was indicted for the offense of assault on a family member, a third
degree felony, in November 2009. Appellant waived a jury trial and entered a plea
of guilty. In August 2010, the trial court placed appellant on three years’ deferred
adjudication with community supervision and assessed a $750.00 fine.
In November 2011, the State filed a Motion to Revoke Unadjudicated
Probation. At the hearing on the motion, appellant entered a plea of true to an
allegation that he failed to pay court-assessed fees in violation of the conditions of
his community supervision. Appellant entered a plea of untrue to an allegation that
he committed the offense of terroristic threat on October 30, 2011. See Tex. Penal
Code Ann. §22.07(a)(2) (West 2011). During the ensuing evidentiary hearing,
several witnesses, including appellant, testified regarding the terroristic threat
allegation. At the conclusion of the evidence, the trial court found both allegations
true, revoked appellant’s probation, and gave him the maximum sentence of ten
years’ imprisonment for the assault. The court explained its decision as follows:
THE COURT: The problem here, Mr. Matte, is you’re on
probation, my probation, for assault on a family
member and I’ve reviewed the presentence report
underlying your case and in that case you tried to
play that down as being no big deal. And I’m
looking through your history here in the
presentence report, and all I see is you being a
bully and a thug. Maybe Ms. Matte is not a perfect
lady, but I believe this evidence shows that you did
what you have done in the past. You’ve got a hot
temper. You had a short fuse and for whatever
reason, you decided that it was enough that
happened to go firing away and you threatened her
while you’re on probation and that was a big
mistake.
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In fact, I’m looking at this criminal history when
we put you on probation and you knew it was
going to be a reach because you’ve got in ’97, two
family assaults and it was revoked in ’99; a family
assault in ’99, 75 days in jail and you have—the
presentence report is always very thorough and has
a lot about someone in their history but, I mean,
it’s loaded with you being a bully. I thought that
sending you to SAFPF, it was a substance abuse
issue, that you would be all better and you would
learn your lesson and would be calm and deal with
your problems in more of a gentlemanly, adult
way. And apparently, this love spat, you can’t deal
with your issues any better than you did before we
sent you to SAFPF. I’m very disappointed
because I kind of stuck my neck out on that one
and I thought you would be better and deal with
your problems in a better way than you have, but
you have proven to be dangerous and a threat to
others in the free world.
Your probation is revoked. Earlier you pleaded
guilty to assault on a family member, a third
degree felony, voluntarily. You were mentally
competent to do so. You understood the
consequences of pleading guilty. There was
sufficient evidence supporting your guilty plea to
find you guilty beyond a reasonable doubt. I now
find you guilty beyond a reasonable doubt of this
underlying offense. It is a third degree felony.
You are hereby sentenced to confinement in the
Institutional Division of the Texas Department of
Criminal Justice to serve a term of 10 years. Let
me just ask you: You have a tattoo on your lower
lip, don’t you?
[APPELLANT]: Yes, sir.
THE COURT: What does it say?
[APPELLANT]: It’s derogatory.
THE COURT: What does it say?
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[APPELLANT]: “F[***] you.”
THE COURT: Do you think someone who would tattoo
something on their lips, it would be—you would
be a verse [sic] to saying the kind of vulgarity we
have here on those tapes and those threats? Every
word you say goes past those words that you have
stapled onto your body. There is not even a self
respect issue. I mean, you take pride in being
defiant and vulgar; and we heard it in these tapes.
I hope that you can do something about getting a
grip on yourself and your dealings with others but
you’re supposed to be living in this world with 7
billion other people in a form of peace. And if you
treat people you say you love this way like I heard,
what about all those people you don’t like? I’ll bet
you they are in harm’s way. You’ve got a long life
ahead of you but you need to change the direction
that your mindset is and your aggressive nature in
dealing with your personal relationships that not
only hurt others but commit crimes and you
committed a crime while on probation, the same
kind of crime while on probation and this Court is
not going to be tolerant of violence and that’s what
that is, a threat of violence to burn a lady and her
children in their home. It’s illegal. It’s not
appropriate and this Court is going to administer
justice under these circumstances and this Court
under the circumstances and the evidence in this
case, finds this decision to be proper and just.
ANALYSIS
On appeal, appellant contends in his first issue that the trial court violated
his right to due process when it allegedly failed to consider the entire range of
punishment. In response, the State asserts appellant waived any complaint he may
have regarding the sentence imposed by the trial court because he failed to object
at the time the sentence was imposed. Anticipating the State’s waiver argument,
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appellant, citing the Court of Criminal Appeals opinion in Ex parte Brown, 158
S.W.3d 449, 454 (Tex. Crim. App. 2005), argues no contemporaneous objection
was necessary because the evidence that the trial court refused to consider the full
range of punishment was ambiguous. Assuming appellant’s contention is correct
that he was excused from the long-standing rule that errors in sentencing can be
waived by failure to object, we conclude the record does not support appellant’s
argument that the trial court did not consider the entire range of punishment.
Instead, the record evidence, quoted in part above, supports the opposite
conclusion.
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)); Phillips v. State, 887 S.W.2d
267, 270 (Tex. App.—Beaumont 1994, pet. ref’d). A trial court denies due process
when it arbitrarily refuses to consider the entire range of punishment for an offense
or refuses to consider mitigating evidence and imposes a predetermined
punishment. Buerger, 60 S.W.3d at 364 (citing McClenan v. State, 661 S.W.2d
108, 110 (Tex. Crim. App. 1983), overruled on other grounds by De Leon v.
Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004)). For example, a trial court
denies due process when it actually assesses punishment at revocation consistent
with the punishment it has previously announced it would assess upon revocation.
Id. In the absence of a clear showing to the contrary, we presume that the trial
court was neutral and detached. Id.
Here, the record establishes that the trial court conducted an evidentiary
hearing in which appellant had an opportunity to present mitigating evidence.
Indeed, the trial court even inquired if appellant intended to retake the witness
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stand following testimony from his probation officer, which directly contradicted
appellant’s previous sworn testimony denying ownership of the cellular telephone
used to convey the terroristic threats at issue. In addition, an examination of the
revocation hearing record demonstrates that the trial court sentenced appellant
based on (1) the trial court’s assessment of the evidence introduced during the
hearing, (2) a review of appellant’s presentence investigation report prepared
during the underlying assault case, and (3) the failure of other efforts to change
appellant’s behavior. Also, there is no evidence that the trial court had previously
promised to assess appellant’s punishment at the maximum term of confinement in
the event he violated the terms of his community supervision.
Because appellant has failed to demonstrate that the trial court arbitrarily
failed to consider the entire range of punishment before sentencing him to ten
years’ imprisonment, we overrule his first issue on appeal. Appellant also lists a
second issue in his brief: “the trial court erred in giving [him] the maximum
sentence.” Appellant does not separately brief this issue, and therefore we
conclude he has waived it. Tex. R. App. P. 38.1(i).
CONCLUSION
Having overruled appellant’s issues on appeal, we affirm the trial court’s
judgment.
/s/ J. Brett Busby
Justice
Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
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