Robert Licon, Jr. v. State ( 2020 )

Opinion filed January 23, 2020
In The
Eleventh Court of Appeals
__________
Nos. 11-17-00221-CR & 11-17-00251-CR
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ROBERT LICON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause Nos. D-16-1769-CR & D-16-1768-CR
MEMORANDUM OPINION
Robert Licon, Jr. pleaded guilty to two first-degree felony offenses, one for
causing serious bodily injury to a child by omission (D-16-1768-CR) and one for
causing serious bodily injury to a child “by grabbing the [child] about the leg” (D-
16-1769-CR). The trial court deferred the adjudication of Appellant’s guilt in both
causes and placed Appellant on community supervision for a period of eight years.
Subsequently, the State moved to revoke community supervision and adjudicate
Appellant’s guilt. The trial court accepted Appellant’s pleas of “true” to the
allegations in the State’s motion and found that Appellant had violated certain terms
of his community supervision. The trial court adjudicated Appellant guilty of both
offenses and assessed punishment at two life sentences of confinement, to run
concurrently; it also assessed a fine of $1,000 in the first case and a fine of $646 in
the second case. In his sole issue in each appeal, Appellant contends that the trial
court arbitrarily refused to consider the full range of punishment and, thus, denied
Appellant of his right to due process. We affirm.
The State charged Appellant with two first-degree felony offenses of injury to
a child. As part of a plea arrangement, the State recommended a deferred
adjudication period of eight years on each offense, to run concurrently. At the plea
hearing, the trial court stated that it “reluctantly” accepted Appellant’s pleas of guilty
to both offenses. The trial court admonished Appellant that any failure to abide by
the terms and conditions of Appellant’s rules of community supervision could result
in the adjudication of his guilt, and it listed the various options available to the trial
court in that regard. The trial court then made two comments to Appellant regarding
his community supervision:
THE COURT: Mr. Licon, the reason I commented to you that I
was reluctantly accepting your pleas of guilty to these offenses was
based on my review of the pre-sentence investigation report, which
outlines the injuries to this child. It is ridiculous. That is highly an
understatement. So I would like to encourage you to be compliant with
your rules of community supervision, because if you are not, the
consequences for you are to be most severe.
THE DEFENDANT: Yes, Your Honor.
THE COURT: Are you sure you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And I will tell you something. If you come back
before this Court, having committed an offense like this, it is going to
be a bad day for you.
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Under the terms of his community supervision, Appellant was to abstain from the
use of drugs.
Less than four months after the trial court had placed Appellant on community
supervision, the State filed its motion to revoke his community supervision. The
motion alleged that Appellant used methamphetamine on two separate instances. At
the revocation hearing, Appellant pleaded “true” to both of the State’s allegations.
Appellant’s community supervision officer, Deyda Alli, testified that Appellant was
generally candid with her regarding the instances of drug use. However, she
concluded that continued probation would likely not be effective in Appellant’s case
based on his failure to acknowledge his drug issue and to engage in a drug
rehabilitation program. After finding the State’s allegations to be true, the trial court
adjudicated Appellant guilty of both offenses and sentenced him to two concurrent
life terms of imprisonment in the Texas Department of Criminal Justice.
Appellant argues that the trial court’s admonitions during the deferred
adjudication hearing amounted to a prejudgment that implied an unwillingness to
consider the full range of punishment. We cannot agree.
Trial courts have broad discretion to determine the proper punishment in a
revocation or an adjudication proceeding. See TEX. CODE CRIM. PROC. ANN.
arts. 42A.108, .110 (West 2018), art. 42A.751(d) (West Supp. 2019); Grado v. State,
445 S.W.3d 736, 739 (Tex. Crim. App. 2014). However, due process requires a
hearing before a neutral and detached judge who considers the full range of
punishment and the evidence presented. Gagnon v. Scarpelli, 411 U.S. 778, 786
(1973). A judge’s arbitrary refusal to consider the entire range of punishment
constitutes a denial of due process. Grado, 445 S.W.3d at 739. A judge who
assesses a predetermined sentence denies an accused the right to due process by
failing to consider the full range of evidence. Brumit v. State, 206 S.W.3d 639, 645
(Tex. Crim. App. 2006) (citing Jefferson v. State, 803 S.W.2d 470, 471 (Tex. App.—
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Dallas 1991, pet. ref’d)). Absent a clear showing of bias, we presume that the trial
court’s actions were correct. See id. (citing Thompson v. State, 641 S.W.2d 920, 921
(Tex. Crim. App. 1982)).
In this case, nothing in the record suggests that the trial court did not consider
the full range of punishment or that it failed to consider the evidence presented and
imposed a predetermined sentence. First, the trial court’s comments do not reflect a
promise to impose the maximum sentence if Appellant failed to abide by the terms
of his community supervision. However, without other evidence or indications of
prejudgment in the record, even an admonition that the trial court would impose the
maximum sentence upon a violation of the terms of probation does not, by itself,
show prejudgment of punishment. Ex parte Brown, 158 S.W.3d 449, 453 (Tex.
Crim. App. 2005); see Jefferson, 803 S.W.2d at 472 (holding that defendant’s due
process rights were violated where judge expressly promised to impose the
maximum sentence and judge’s later statements during adjudication hearing
confirmed his assessment of that promised punishment). The record before us shows
that the trial court did not make any comments that suggested that it considered less
than the full punishment range.
The record also establishes that the trial court considered the evidence when
it imposed its sentence. Based on Appellant’s pleas and the evidence presented, the
trial court found the State’s allegations to be true. Subsequently, the trial court
adjudicated Appellant’s guilt for the original offenses of injury to a child. Before it
assessed punishment at a term of imprisonment, the trial court stated that it could
not “in good conscience extend [Appellant’s] period of community supervision in
light of [Appellant’s] failure to comply, and in light of the circumstances underlying
the offenses to which [Appellant] enter[ed] pleas of guilty.” The trial court
convicted Appellant of both first-degree felony offenses, and both sentences were
within the allowable range. See TEX. PENAL CODE ANN. § 12.32 (West 2019).
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There is no evidence that the trial court arbitrarily refused to consider the full
range of punishment or that its comments indicated the imposition of a
predetermined sentence. Therefore, we must presume that the trial court was fair
and impartial. We overrule Appellant’s sole issue in each appeal.
We affirm the judgments of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
January 23, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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