Opinion
Nos. 12-10-00371-CR, 12-10-00372-CR, 12-10-00373-CR, 12-10-00379-CR
Opinion delivered July 29, 2011. DO NOT PUBLISH.
Appeal from the 7th Judicial District Court, Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
MEMORANDUM OPINION
Gaylon Harold Ray appeals his convictions for forgery, two theft offenses, and tampering with a government record. In two issues, Appellant contends that the trial court denied him due process and due course of law by failing to consider the full range of punishment and improperly assessing what the court believed a jury would assess as punishment. We affirm.
BACKGROUND
Appellant was charged by separate indictments in four cause numbers with forgery, two theft offenses, and tampering with a government record. All of the offenses were state jail felonies. Each indictment included an enhancement paragraph alleging two prior felony convictions, elevating the punishment range for the charged offense to that of a second degree felony. Appellant entered an open plea of guilty to each of the four offenses and a plea of true to the enhancement paragraphs. The trial court found Appellant guilty of all four offenses and the enhancement paragraphs in three offenses to be true. For the forgery offense, the stipulation page presented to the trial court at the punishment hearing did not contain evidence to support the enhancement paragraph. Accordingly, for this offense, the trial court sentenced Appellant to imprisonment for two years. For each of the three remaining offenses, the trial court sentenced Appellant to imprisonment for twenty years. These appeals followed.PUNISHMENT
In his first issue, Appellant argues that the trial court did not consider the full range of punishment, denying him due process and due course of law. In his second issue, Appellant argues that the trial court improperly assessed what the court believed a jury would assess as punishment, denying him due process and due course of law. Because these two issues are interrelated, we address them together.Applicable Law
The Fourteenth Amendment provides that the state may not "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV; see also TEX. CONST. art. I, § 19 ("No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."). Due process requires the trial court to conduct itself in a neutral and detached manner. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1762, 36 L. Ed. 2d 656 (1973); Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). "[A] trial court's arbitrary refusal to consider the entire range of punishment in a particular case violates due process." Ex parteBrown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005) (per curiam); see alsoBrumit, 206 S.W.3d at 645. Additionally, a trial court that refuses to consider the evidence or imposes a predetermined punishment denies a defendant due process. Howard v. State, 830 S.W.2d 785, 787 (Tex. App.-San Antonio 1992, pet ref'd). However, absent a clear showing of bias, we presume the trial court's actions were correct. Brumit, 206 S.W.3d at 645 (bias not shown when trial court hears extensive evidence before assessing punishment, record contains explicit evidence that trial court considered full range of punishment, and trial court made no comments indicating consideration of less than full range of punishment). The Houston First Court of Appeals found no due process violation where a trial court stated that it was forced to assess the maximum because juries had assessed the maximum in less heinous cases.Jaenicke v.State, 109 S.W. 3d 793, 797 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). Specifically, the court concluded that this statement was not sufficient to rebut the presumption of a neutral and detached trial court. Id. The court reasoned that this statement implicitly showed the trial court considered the evidence and compared the appellant's case to other cases. Id. Thus, by making this statement, the trial court merely explained why the maximum punishment was appropriate and attempted to assess a sentence proportionate to the seriousness of the appellant's crime. Id. The court further noted that the trial court listened to witnesses and that the statement did not show the trial court failed to consider the full range of punishment or imposed a predetermined punishment. Id.Appellant's Argument
Appellant calls our attention to the following statements made by the trial court during the punishment hearing:. . . Mr. Ray, your lawyer's heard this, the State's lawyer's heard it, because I'm convinced it's the proper way for the courts to evaluate what they do whenever they're asked to be the sentencing entity in Texas for criminal cases. And I always try to evaluate the case based upon what I would do if I were a jury and sitting over there in that jury box, making the same decision I'm required to do whenever the defendant elects to have the Court handle punishment. And I have no doubt what my decision would be over there. And I have no doubt what I think the other 11 citizens of Smith County would think about an individual that comes before them that either pleads guilty or is found guilty of offenses that are before me today with your history. . . .
. . . Both the State and your witness and your lawyer have argued that I should send you to some type of substance treatment program, which, I will make an affirmative finding in the judgment. That's about all the trial courts get to do. And we will hope that with your history, the penitentiary will think it's beneficial to put you in some type of drug treatment program. But whether they do or they don't, at some point, I agree with your lawyer, you'll be released. And you'll be back out on the street. . . .
. . . But, ultimately, it's going to be Mr. Ray making the decision whether he wants to go back and do these things again. Because I'm going to give you the max. Because I think that's what a Smith County jury would do.Based on these statements, Appellant argues that the trial court did not consider the full range of punishment in assessing Appellant's sentences. Specifically, Appellant contends that he could not have received deferred adjudication from a jury. Therefore, he asserts that the trial court's reference to what a "Smith County jury would do" indicates the court did not consider this option in sentencing Appellant. Appellant also directs our attention to the trial court's statement that an affirmative finding on "some type of substance treatment" was "about all the trial court gets to do." He contends this shows the trial court "forgot" that deferred adjudication allows treatment, outpatient or inpatient, or through the Substance Abuse Felony Facilities.