Opinion
No. 12-10-00139-CR
Opinion delivered April 29, 2011. DO NOT PUBLISH.
Appealed from the 7th Judicial District Court Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
MEMORANDUM OPINION
Johnny Evans appeals his conviction for possession of a controlled substance. In four issues, Appellant contends that the trial court failed to consider the full range of punishment and erroneously ordered that he pay restitution to the Smith County Collections Department. We modify and, as modified, affirm.
BACKGROUND
Appellant was charged by indictment with possession of a controlled substance. The indictment alleged that Appellant had a prior felony conviction, which elevated the charge to a second degree felony. Appellant entered an open plea of guilty to the offense and a plea of true to the enhancement paragraph. After finding Appellant guilty, the trial court sentenced him to imprisonment for fifteen years. The court also ordered $140 in restitution to the Smith County Collections Department for a lab fee. This appeal followed. On February 28, 2011, this court entered a per curiam order, in which we held that there was no evidence to support the trial court's order of $140 in restitution. Accordingly, we abated the appeal, set aside the amount of restitution, and remanded the case to the trial court for a new restitution hearing. On March 24, 2011, the trial court held the restitution hearing as ordered. At this hearing, the State abandoned any request for restitution for the lab fee. Appellant had no objection to the State's abandonment of the restitution claim. The trial court issued an order that contained findings of fact and conclusions of law relating to the restitution hearing and provided a reporter's record of the hearing.PUNISHMENT
In his first issue, Appellant argues that the trial court did not consider the full range of punishment denying Appellant 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 Appellant 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 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 parte Brown , 158 S.W.3d 449, 456 (Tex. Crim. App. 2005) (per curiam); see also Brumit , 206 S.W.3d at 645. However, absent a clear showing of bias, we presume the trial court's actions were correct. Brumit , 206 S.W.3d at 645. Bias is not shown when the trial court hears extensive evidence before assessing punishment, the record contains explicit evidence that the trial court considered the full range of punishment, and the trial court made no comments indicating consideration of less than the full range of punishment. See id.Analysis
Appellant calls our attention to the following statements made by the trial court during the punishment hearing:. . . I always tell defendants that I try to do what I think a Smith County jury would do in their case because I don't think a defendant should be punished more harshly than what a jury would do. I also don't think they ought to get any breaks by going to the Court on punishment. I think a jury would be fairly shocked at someone showing up with three pages of criminal history having been to the penitentiary and to the state jail and numerous local jailings on — well, you name it: Theft, drugs, evading, burglary, unauthorized use of vehicles, criminal non-support. Particularly, to me is within less than 2 months of when you asked me to put you on probation for criminal non-support, when you should be out there providing for your kids — I agree with the State's argument in that regard — you're out, presumably buying drugs, using drugs, not doing much of anything, really to provide for your kiddos that you've elected to have.Based on these statements, Appellant argues that the trial court did not consider the full range of punishment in assessing Appellant's sentence. Specifically, Appellant contends that he could not have received deferred adjudication or regular community supervision from a jury. Therefore, he contends the trial court's reference to what a "Smith County jury would do" indicates the court did not consider those options in sentencing Appellant. We disagree. At the punishment hearing, the trial court asked Appellant if he recalled being told that (1) "the range of punishment was between 2 and 20 years and up to a $10,000 fine on your case[,]" and that (2) the court would "hear any additional evidence . . . and then make a determination of where in that range of punishment the appropriate punishment would be." Appellant confirmed that he remembered each statement. The court also informed Appellant that it "had a chance to review the [presentence investigation report] a couple of different times." Appellant then called two witnesses to testify about Appellant's family, medical, social, and criminal history. Also, his attorney argued that some of Appellant's prior offenses were the result of mental health issues. The trial court made the complained of statements after hearing the evidence and arguments of counsel. At that point, the court had informed Appellant that his sentence would be within the range of punishment for his offense. Moreover, the court was aware that Appellant had a number of mental health issues, a criminal history that spanned twenty years, a history of drug use, and several failed probations. Most recently, he had received community supervision from the same trial court after he pleaded guilty to criminal nonsupport. His community supervision for that offense was revoked in January 2010, and the sentencing hearing in the instant case was held on April 27, 2010. The trial court specifically noted in its comments that "within less than 2 months of when you asked me to put you on probation for criminal non-support . . ., you're out, presumably buying drugs, using drugs, not doing much of anything, really to provide for your kiddos. . . ." The trial court made no statements that indicated bias or a refusal to consider the full range of punishment. In referring to what a "Smith County jury would do," the court did not address whether a jury could assess deferred adjudication or regular community supervision. To prevail on his first and second issues, Appellant must show clear bias to rebut the presumption that the trial court's actions were correct. See Brumit , 206 S.W.3d at 645 (holding judge's comments that earlier case made him think anybody who ever harmed a child should be put to death did not reflect bias, partiality, or failure to consider full range of punishment). In the instant case, the trial court heard extensive evidence before assessing punishment, and explicitly informed Appellant that his sentence would be within the range of punishment for his offense. Appellant points to no statement, other than the court's reference to "what a Smith County jury would do," that, in Appellant's view, indicates bias or failure to consider the full range of punishment. After considering the entire record, we decline to hold that this reference supports an inference that the trial court considered only confinement as punishment for Appellant. Therefore, we conclude Appellant was not denied due process and due course of law. Accordingly, we overrule Appellant's first and second issues.