NO. 12-06-00038-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CASEY ALLEN SCOTT,      §          APPEAL FROM THE 159TH

APPELLANT

V.        §          JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §          ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

            Casey Allen Scott appeals the revocation of his community supervision.  In one issue, he alleges that the trial court violated his right to due course of law by not considering the full range of available punishment before determining his sentence.  We affirm.

Background

            While a juvenile, Appellant admitted that he committed what would have been the offense of indecency with a child were he an adult.  He was placed on community supervision with an agreement that his case would be transferred to district court before his eighteenth birthday.  Later, the case was transferred to district court, and Appellant was formally adjudicated as an adult, found guilty, and again given a suspended sentence.  In October 2005, the State filed a petition to revoke Appellant’s community supervision.  Appellant admitted several of the grounds alleged in the State’s petition, and the trial court found others to be true. 

            The matter was recessed, and a presentence investigation report was prepared.  After consideration of the report and the reception of evidence, the trial court assessed punishment at ten years of imprisonment.  During the court’s rendition of the sentence, the judge said, “And I am compelled, based on the criteria that I follow as the Judge of the 159th District Court, to revoke the probation and affirm the sentence previously imposed of ten years Texas Department of Criminal Justice, Institutional Division.”  Shortly thereafter, the trial court said, “I am not happy about doing this.  I’ve never sent a 19-year-old to the penitentiary for ten years.  But the criteria that I follow compels me to do that.”

            This appeal followed. 

Due Course of Law

            In a single issue, Appellant argues that the trial court did not consider the full range of available punishment when determining his sentence.

Analysis

            A trial court’s arbitrary refusal to consider the entire range of punishment for an offense or refusal to consider the evidence and impose a predetermined punishment violates due process.  See Ex parte Brown, 158 S.W.3d 449, 456–57 (Tex. Crim. App. 2005).  Appellant did not object to his sentence.  Some complaints about prejudgment require a contemporaneous objection, and the State argues that this complaint is waived.  See Tex. R. App. P. 33.1(a)(1); Hull v. State, 67 S.W.3d 215, 217–18 (Tex. Crim. App. 2002); Washington v. State, 71 S.W.3d 498, 499–500 (Tex. App.–Tyler 2002, no pet.).

            In Brown, 158 S.W.3d at 453 n.3, the court of criminal appeals differentiated between cases where the defendant understood that the trial court was prejudging his case, as in Hull, and cases where evidence of prejudgment was ambiguous.  A contemporaneous objection is required only in instances where the prejudgment is clear or understood.  Id.  In the Brown case, as here, there was no objection at the time of the imposition of the sentence.  Id. at 452.  The court excused the failure to object holding that the case fell into a category of cases where the events as they occurred were not adequate to show prejudgment.  Id. at 453 n.3 (“In this particular situation, as with many ineffective assistance of counsel claims, the trial record, by itself, is not necessarily adequate for the defendant to object and present a valid constitutional claim at the time of the conduct.”).

            The court noted that the same lack of evidence that excused the failure to object meant that “the trial record [would be] insufficient to allow an appellate court to resolve the issue [of prejudgment].”  Id. at 453.  Specifically, the record on direct appeal would not contain evidence of other cases heard by the same judge or testimony from the judge on the issue.  Id. at 453–54.  In other words, two kinds of cases exist.  The first are cases like Hull where the events as they occur in real time are clear enough to show prejudgement.  In those cases a timely objection is a prerequisite to a claim of error.  In the second kind of case, the events are not clear enough either to require a contemporaneous objection or for an appellate court to conclude that the judge prejudged the case.

            Appellant is correct that the judge’s description of being “compelled” to revoke the sentence or to impose the full suspended sentence could be interpreted to mean that the judge believed something required only those results.  Nothing did, and the trial court’s unfettered judgment was required.  See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1762, 36 L. Ed. 2d 656 (1973) (Due process requires a neutral and detached hearing body or officer.).

            But the court in Brown held that even the judge’s statement that he would “impose the maximum sentence if [the defendant] violated his probation [] does not, by itself, show prejudgment of punishment.”  Brown, 158 S.W.3d at 453.  Similarly, the judge’s statements in this case do not, by themselves, prove that he prejudged the punishment, felt obligated to impose the full suspended sentence, or otherwise failed to consider the entire range of punishment.  The selected quotations come from a long soliloquy in which the judge considered the arguments of defense counsel and discussed other aspects of the case.  We presume that a judicial officer is neutral and detached, see Jaenicke v. State, 109 S.W.3d 793, 795 (Tex. App.–Houston [1st Dist.] 2003, pet. ref’d), and the statements in this case are far less suggestive of a refusal to consider the entire range of punishment than the statement held in Brown to be insufficient, standing alone, to show prejudgment.

            Appellant has not presented evidence to overcome the presumption of judicial neutrality.   In contrast to Brown, there is no evidence in the record in this case either of the judge’s thinking on the  matter or of other cases adjudicated by the same judge.  The judge’s statements are ambiguous, and therefore Appellant’s failure to preserve this complaint is excused.  But his claim fails because he has presented no additional evidence that would cause us to conclude that the judge failed to act as a neutral and detached jurist.  We overrule Appellant’s sole issue.

Disposition

            We affirm the judgment of the trial court.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered March 7, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)