Jeryl Patrick Graves, Jr. v. State

AFFIRMED as MODIFIED and Opinion Filed April 21, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00786-CR
No. 05-19-00788-CR
JERYL PATRICK GRAVES, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F17-76631-P & F17-76630-P
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III and Goldstein
Opinion by Justice Goldstein
These are appeals from convictions for two aggravated sexual assaults. We
affirm the judgments as modified.
Jeryl Patrick Graves, Jr. was indicted for two aggravated sexual assaults
committed against two different victims on the same evening. The cases were tried
together in a bench trial. After finding Graves guilty of both offenses, the trial judge
assessed punishment at 60-years confinement in each case to be served concurrently.
The judge assessed costs against Graves in both cases and certified that Graves had
a right to appeal each conviction. Graves timely filed a notice of appeal in both cases.
Graves presents four issues on appeal. In his first two issues, Graves contends
that the judgment should be modified to reflect there was no plea bargain agreement
and to delete a duplicate cost award from the bill of costs. The State agrees and
requests the judgment also be modified to reflect that Graves is required to register
as a sex offender. In his third and fourth issues, Graves asserts he should receive a
new punishment hearing because the trial court demonstrated judicial bias by acting
as an adversarial advocate against Graves and violated his common law right of
allocution.
Adversarial Advocacy as Judicial Bias
In his third issue, Graves argues “the trial court abused its discretion and
committed reversible error of a fundamental and structural nature” by acting as an
adversarial advocate against him. At the beginning of the punishment phase, Graves
and the State entered into a written stipulation regarding the truth of each
indictment’s enhancement paragraph that alleged Graves had a prior felony
conviction for aggravated robbery. The State did not offer the written document into
evidence at that time. After final arguments, the judge recessed. When the judge
reconvened on the record, the following occurred:
THE COURT: We are back on the record. I believe the State will
be offering State’s Exhibit No. 129, which is the stipulation that was
entered into and agreed between Defense Counsel and her client. And
it’s signed by all parties, correct, [Prosecutor]?
[Prosecutor]: Yes.
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[Defense Counsel]: No objection.
THE COURT: And no objection from [Defense Counsel]. All
right. State’s Exhibit No. 129 will be entered into evidence.
Graves contends the trial judge “expressly prompted the State to introduce the
stipulation documents into evidence,” and that through the acts of reopening
evidence and prompting admission of Exhibit 129, the judge acted as an “adversarial
advocate for the State.” Graves asserts that the trial judge’s actions reflect judicial
bias amounting to fundamental structural error, thus, no objection was required to
preserve error for appeal.
Applicable Law
Graves does not direct us to any portion of the record that indicates he made
a request, objection, or motion based on the trial judge’s alleged bias. See TEX. R.
APP. P. 33.1(a) (requiring a timely request, objection, or motion to preserve a
complaint for appellate review). He did not file a motion to recuse the trial judge or
seek a new trial on the basis of bias.
Only two categories of errors may be raised for the first time on appeal,
violations of rights which are waivable only and denials of fundamental systemic
requirements. Proenza v. State, 541 S.W.3d 786, 798 (Tex. Crim. App. 2017) (citing
Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993), overruled on other
grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)). The Court of
Criminal Appeals rejected any common law “fundamental error” exception to the
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rules of error preservation based upon harm, holding the question of error
preservation instead turns upon the “nature” of the error itself. Proenza, 541 at 796
(citing Marin, 851 S.W.2d at 278-80.). We need not determine whether the alleged
error requires an objection under Marin because, after reviewing the record, we find
no apparent bias or partiality. See Brumit v. State, 206 S.W.3d 639, 644–45 (Tex.
Crim. App. 2006) (declining to decide whether an objection is required to preserve
an error of this nature where the record did not reflect partiality of trial court).
Due process requires a neutral and detached hearing body or officer. Brumit,
206 S.W.3d at 645 (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)). A
defendant has an absolute right to an impartial judge at both the guilt-innocence and
punishment phases of trial. Segovia v. State, 543 S.W.3d 497, 503 (Tex. App.—
Houston [14th Dist.] 2018, no pet.). A judge should not act as an advocate or
adversary for any party. Johnson v. State, 452 S.W.3d 398, 405 (Tex. App.—
Amarillo 2014, pet. ref’d). To reverse a judgment on the ground of improper conduct
or comments of the judge, we must be presented with proof (1) that judicial
impropriety was in fact committed, and (2) of probable prejudice to the complaining
party. Id. Absent a clear showing of bias, a trial court’s actions are presumed correct.
Brumit, 206 S.W.3d at 645. In conducting this review, we examine the entire record.
Id.–4–
Application of Law to Facts
Graves’s sole complaint of “adversarial advocacy” relates to the admission of
Exhibit 129, upon reconvening after a recess. It is not evident from the record why
the trial judge and parties went back on the record. The record shows that a document
reflecting the stipulation was handed to the trial judge before the recess, during the
punishment phase of the trial. The judge questioned Graves on the contents of the
stipulation relative to the enhancement paragraph. Thereafter, defense counsel
closed.
Where no extrajudicial information was considered, predispositions formed
by a judge on the basis of facts or events occurring in the course of the proceedings
cannot be characterized as judicial bias unless the deep-seated favoritism or
antagonism is so extreme as to display a clear inability to render a fair judgment.
Gaal v. State, 332 S.W.3d 448, 454 (Tex. Crim. App. 2011) (citing Liteky v. United
States, 510 U.S. 540, 555 (1994)). There is no showing of “deep-seated favoritism
or antagonism that would make fair judgment impossible” where facts offered to
show judicial bias did not offer any indication of what was going through a trial
judge’s mind and instead were based upon appellant’s speculation as to what the
judge was thinking. See Gaal, 332 S.W.3d at 458-59.
A trial judge has broad discretion in maintaining control and expediting the
trial. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). A judge can
lawfully provide guidance and manage presentation of evidence from the bench
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without abandoning her role as an independent arbiter. Strong v. State, 138 S.W.3d
546, 552 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.). In a bench trial, the
judge has more latitude than in a jury trial to ask questions that an advocate might
ask in order to assist in the fact-finding process. See Moreno v. State, 900 S.W.2d
357, 359-60 (Tex. App.—Texarkana 1995, no pet.); see also Marshall v. State, 297
S.W.2d 135, 136–37 (Tex. Crim. App. 1956). The exchange on this record relative
to the formal admission of proffered evidence, already made part of the record
through Graves’s testimony and counsel’s argument, reveals nothing as to the trial
judge’s motivations, nor does it reveal the type of “deep-seated favoritism or
antagonism that would make a fair judgment impossible” and overcome the
presumption that the trial court’s actions were properly motivated. See Gaal, 332
S.W.3d at 458-59; Brumit, 206 S.W.3d at 646. Under these circumstances, we
cannot conclude the trial judge acted as an adversarial advocate for the State. We
overrule issue three.
Right to Allocution
In his fourth issue, Graves claims he is entitled to a new punishment hearing
because the trial judge deprived him of the common law right of allocution. Because
Graves failed to preserve error on this issue, we do not address whether the common
law right of allocution exists in Texas.1
1
For a discussion of the history of allocution rights in Texas: See Decker v. State, No. 05-18-01259-
CR, 2020 WL 614100, at *4 (Tex. App.—Dallas Feb. 10, 2020, no pet.) (mem. op., not designated for
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Applicable Law
Controlling precedent requires preservation of a complaint regarding denial
of allocution by making a timely and specific objection in the trial court and
obtaining a ruling. McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974)
(op. on reh’g). The appellate error preservation requirement “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); see also TEX. R. APP. P. 33.1.
Application of Law to Facts
Before sentencing, the trial judge asked “is there any legal reason your client
should not be sentenced and sentence should not be imposed?” and defense counsel
answered “No, Your Honor.” Graves does not challenge the judge’s compliance
with his statutory right of allocution. See TEX. CODE CRIM. PROC. ANN. art. 42.07.
Rather, Graves complains on appeal that he was denied the opportunity to exercise
his common law right of allocution by the judge not explicitly inquiring if he
“wished to exercise his common law right to allocution or had anything to assert.”
The record reflects that Graves had the opportunity, but failed to invoke, any
common law right of allocution in the trial court prior to sentencing and failed to
publication) (“Following the enactment of code of criminal procedure article 42.07, the questions of
whether the statute encompassed the same scope as the former common-law practice, or, if not, supplanted
any potential broader reach of the common-law right remained unanswered.”).
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timely object to the trial judge’s alleged error in denying him that right. We therefore
overrule issue four.
Modification of Judgments
In his first and second issues, Graves contends the judgments should be
modified to correct certain errors.
Applicable Law
This Court has the power to correct and reform the judgment of the court
below to make the record speak the truth when it has the necessary data and
information to do so. See Abron v. State, 997 S.W.2d 281, 282 (Tex. App.—Dallas
1998, pet. ref’d) (citing Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.
1993)). A court of appeals may “modify the trial court’s judgment and affirm it as
modified.” TEX. R. APP. P. 43.2(b).
Application of Law to Facts
A. Plea Bargain Notation
In his first issue, Graves asserts that the trial court’s judgment in each case
must be modified to reflect that there was no plea bargain agreement between Graves
and the State in regard to either of the charged offenses. The State agrees.
Accordingly, we sustain issue one and modify both judgments to read “N/A” in the
“Plea Bargain” field.
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B. Duplicate Costs
In his second issue, Graves argues that he was charged court costs twice
because he was assessed costs in both cases even though the cases were tried
together. The State agrees that Graves should have been charged each court cost or
fee only once.
“In a single criminal action in which a defendant is convicted of two or more
offenses or of multiple counts of the same offense, the court may assess each court
cost or fee only once against the defendant.” TEX. CODE CRIM. PROC. ANN. art.
102.073(a). For purposes of this rule, a person convicted of two or more offenses in
the same trial is convicted of those offenses in a “single criminal action.” Hurlburt
v. State, 506 S.W.3d 199, 203–04 (Tex. App.—Waco 2016, no pet.). When two or
more convictions arise from a single criminal action, “each court cost or fee the
amount of which is determined according to the category of offense must be assessed
using the highest category of offense that is possible based on the defendant’s
convictions.” TEX. CODE CRIM. PROC. ANN. art. 102.073(b).
Graves was convicted of two aggravated sexual assaults in a single trial.
Therefore, each court cost or fee should have been assessed only once, in the amount
corresponding to his most serious offense. The $474 in court costs assessed by
Graves’s judgment in cause number F17-76631 (05-19-00786-CR) incorporates the
same fees as the $474 sum assessed in F17-76630 (05-19-00788-CR).
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Because the fees are duplicative and the offenses are the same, we sustain
issue two and modify the judgment in cause number F17-76631 (05-19-00786-CR)
to delete the assessment of court costs.
C. Sex Offender Registration
In a single cross-issue, the State asserts that the judgment in 05-19-00788-CR
should be modified to reflect that Graves is required to register as a sex offender
under Chapter 62 of the Texas Code of Criminal Procedure. “In the event of
conviction of an offense for which registration as a sex offender is required under
Chapter 62,” the judgment must contain “a statement that the registration
requirement of that chapter applies to the defendant and a statement of the age of the
victim of the offense.” TEX. CODE CRIM. PROC. ANN. art. 42.01 § 1(27). Aggravated
sexual assault is an offense for which sex offender registration is required under
Chapter 62. See TEX. PENAL CODE ANN. § 22.021; TEX. CODE CRIM. PROC. ANN.
arts. 62.001(5)(A), 62.002.
Accordingly, we sustain the State’s sole cross-issue and modify the judgment
in cause number F17-76630 (05-19-00788-CR) to reflect that Graves must register
as a sex offender under Chapter 62.
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As modified, we affirm the judgments.
/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
190786F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JERYL PATRICK GRAVES, JR., On Appeal from the 203rd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F17-76631-P.
No. 05-19-00786-CR V. Opinion delivered by Justice
Goldstein. Justices Partida-Kipness
THE STATE OF TEXAS, Appellee and Pedersen, III participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
We DELETE the statement "TBCT - 60 YEARS TDCJ; NO FINE"
under the heading "Terms of Plea Bargain (if any):" and INSERT the
statement "N/A."
We DELETE the statement of $474.00 under the heading “Court
Costs:” and INSERT the statement “$ 0.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered April 21, 2021
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JERYL PATRICK GRAVES, JR., On Appeal from the 203rd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F17-76630-P.
No. 05-19-00788-CR V. Opinion delivered by Justice
Goldstein. Justices Partida-Kipness
THE STATE OF TEXAS, Appellee and Pedersen, III participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
We DELETE the statement "60 YEARS TDC" under the heading
"Terms of Plea Bargain (if any):" and INSERT the statement "N/A."
We ADD an “x” mark next to the statement “Defendant is required to
register as sex offender in accordance with Chapter 62, Tex. Code
Crim. Proc.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered April 21, 2021
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