Opinion
Nos. 05-09-00117-CR, 05-09-00118-CR
Opinion issued October 30, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 204th Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F08-59914-VQ, F08-59915-Q.
Before Justices O'NEILL, FRANCIS, and LANG.
OPINION
Amir Nourliend Swify waived a jury, pleaded guilty to aggravated robbery with a deadly weapon, a firearm, and pleaded nolo contendere to aggravated assault with a deadly weapon, a firearm, of a public servant. After finding appellant guilty, the trial court assessed punishment at twenty years in prison in each case. In a single point of error, appellant contends the trial court failed to function as an impartial adjudicator, thereby denying his due process rights to a fair punishment hearing. We affirm the trial court's judgments. Appellant maintains the trial court violated his right to due process of law because the trial judge was biased and predetermined his guilt. According to appellant, the bias is evident from comments the judge made throughout the proceeding. The State responds that the issue has not been preserved for our review and, alternatively, the trial court sentenced appellant in accord with his due process rights. The contemporaneous-objection rule applies even to due process violations. See Hull v. State, 67 S.W.3d 215, 217-18 (Tex. Crim. App. 2002); Tex. R. App. P. 33.1(a). Appellant did not object to the proceeding or to the sentence, nor did he raise his due process concerns in a motion for new trial. However, we need not decide whether error was preserved because the record does not reflect partiality of the trial court or that a predetermined sentence was imposed. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). A trial court denies due process of law if it arbitrarily refuses to consider the entire punishment range or if it imposes, without considering the evidence, a predetermined sentence. 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); Cole v. State, 931 S.W.2d 578, 579-80 (Tex. App.-Dallas 1995, pet. ref'd). Absent a clear showing of bias, the trial court's actions will be presumed to have been correct. Brumit, 206 S.W.3d at 644. The record shows that during the hearing, the trial court listened to all of the testimony before making a determination. The trial court heard testimony from appellant and his mother, father, and sister. The judge did ask several questions to appellant and the witnesses. Although the trial judge's comments may have been sharp or sardonic at times, they were contemporaneous to the proceeding and were not proof of the judge having predetermined the case. As the Supreme Court has stated, "expressions of impatience, dissatisfaction, annoyance and even anger" in the ordinary conduct of court administration does not establish bias. Litekey v. U.S., 510 U.S. 540, 555 (1994) (discussing bias in the context of recusal). Moreover, the judge rejected the State's forty-year sentence recommendation and instead assessed a relative light sentence, given appellant's criminal history involving deadly weapons. We find no basis in any of the trial court's comments for concluding the court was biased or predetermined appellant's guilt. Accordingly, we conclude appellant's due process rights were not violated and overrule his sole issue on appeal. We affirm the trial court's judgment in each case.