Stephanie Denise Baker v. The State of Texas--Appeal from 199th District Court of Collin County

IN THE

TENTH COURT OF APPEALS

No. 10-94-149-CR

STEPHANIE DENISE BAKER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 199th District Court

Collin County, Texas

Trial Court # F87-242-SR

O P I N I O N

Appellant Stephanie Denise Baker was indicted for the offense of delivery of cocaine in an amount more than 200 grams by aggregate weight including adulterants and dilutants. This is the case that is on appeal. On August 22, 1988, Appellant pleaded guilty before the court without a jury in two cases: (1) Cause No. F87-242-SR (the case at bar) and (2) Cause No. 199-80064-88, delivery of a controlled substance to-wit, MDMA in an amount less than 28 grams, which case is not on appeal. Pursuant to a plea bargain agreement, the trial court assessed 10 years deferred adjudication probation in the case now on appeal, with a $50,000 fine suspended, along with court costs to be paid as a condition of probation. On the MDMA case Appellant was assessed 5 years in the Texas Department of Criminal Justice, Institutional Division, probated for 10 years, plus a $5,000 fine, with court costs and restitution to be paid as conditions of probation, plus random urinalysis tests as a term of probation.

Afterwards the State filed a motion to adjudicate the cocaine case and a motion to revoke probation in the MDMA case. On September 9, 1989, the trial court held a hearing on these two motions. In the cocaine delivery case, the motion to adjudicate was denied and Appellant was continued on deferred adjudication probation. In the MDMA case the trial court revoked probation and sentenced Appellant to five years in the Texas Department of Criminal Justice, Institutional Division, and assessed a $5,000 fine.

Subsequently the State filed another motion to adjudicate in the cocaine delivery case and, after a hearing on November 30, 1993, the trial court granted this motion and sentenced Appellant to 30 years in the Texas Department of Criminal Justice, Institutional Division, and assessed a $50,000 fine, from which Appellant comes to this court on two points of error.

We sustain both points of error and reverse and remand the cause to the trial court for proceedings consistent with this opinion. Tex. Code Crim. Proc. Ann. art. 42.12 5(b).

Appellant's first point asserts she was denied a hearing by a fair and impartial judge, where the trial judge decided prior to Appellant's sentencing what her punishment would be. In her second point she contends that she was denied due process and due course of law at her punishment hearing, where the trial judge had decided Appellant's sentence prior to the punishment hearing.

At the August 22, 1988, hearing wherein Appellant was placed on deferred adjudication, the trial judge told Appellant:

THE COURT: "There is one other thing that you ought to know, Ms. Baker, and that is that if you violate any of the laws of the State of Texas, especially as it pertains to drugs, or you flunk one of those urine analysis examinations, you are going to the joint; do you understand?"

[DEFENDANT]: "Yes, sir."

THE COURT: "Your are going to the joint for a very long time."

[DEFENDANT]: "Uh huh."

THE COURT: "Okay. Make no mistake about it, and I hope we don't see your again."

At the September 9, 1989, hearing wherein the trial court revoked the probation on the MDMA case but kept her on deferred adjudication in the case at bar, the judge stated:

THE COURT: "I made a note, if you come back in here again, you go to the joint. I have a docket notation to that effect. You know what that means. You are going to get a thirty-year sentence, ma'am, if you come back in here. I really don't know why it is that I am not sending you to the joint right off the bat, but the proposal to send you to the joint now will give you a taste of what it is like and an opportunity to rehabilitate yourself - - - I don't understand why I am doing this, but I am telling you, if you disappoint me again, or violate the conditions, if you fail or miss a report, if you are not there and I find out about it, you are going to the joint for thirty years on the charge of delivery of cocaine in the amount you were charged with. If you still don't think that this is a serious crime, I am going to show you how serious I think it is. You think that you understand what it is that is going to happen to you."

[DEFENDANT]: "Yes, sir."

THE COURT: "Tell you something else. Again, if you do not take a urine analysis examination, you are going to the joint for 30 years or more. You flunk one, you are gone . . . . Ms. Baker, this is your last chance. You have a long time on probation, so you better lick your problem right now. If you don't you are going to be in jail for a long time."

(Emphasis added).

The court's docket shows that on the September 9, 1989, hearing wherein Appellant's probation was continued, after the judge's signature is written "NTC 30 min. J.R."

Then at the November 30, 1993, hearing wherein the court revoked Appellant's probation, the judge said:

"Ms. Baker, the court has determined that its going to keep its promises to you, unlike what you did for the court, and sentence you to 30 years in the penitentiary."

The court then sentenced her to 30 years in the Texas Department of Criminal Justice, Institutional Division.

Although at this hearing the judge heard testimony from Appellant and her mother before assessing the punishment, there is no indication the judge considered any length of time less than 30 years. That is to say, 30 years was the "minimum" he predetermined back at Appellant's previous hearing, further evidenced by the docket notation.

A defendant is entitled to a fair and impartial judge to assess punishment. McClenan v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983). Here, our Court of Criminal Appeals overruled a line of cases theretofore holding that a judge's personal bias was not a legal ground for disqualification. In McClenan it was held that bias could be a ground for removing a judge where "the bias is shown to be of such a nature and such an extent as to deny a defendant due process of law." McClenan, 661 S.W.2d at 109. See U.S. Const., Amend. XIV; Tex. Const., art. I, 10 and 19. Also see Jefferson v. State, 803 S.W.2d 470 (Tex. App. Dallas 1991, pet. ref'd), wherein at the time Jefferson was placed on felony deferred adjudication, the trial court told him what his punishment would be if his probation was later revoked. Jefferson's probation was later revoked and the trial judge made good on his threatened punishment. This was a factual situation very similar to our case. The Dallas Court of Appeals had this to say: " . . . It is axiomatic that it is a denial of due process for the court to arbitrarily refuse to consider the entire range of punishment for the offense or to refuse to consider the evidence and impose a predetermined punishment, (citing McClenan, supra)."

In the case at bar, the State argues that there is no reversible error because Appellant knew of the judge's bias prior to her sentencing but never raised the point, and she thereby waived any such error. We do not agree. Until the judge assessed punishment, the defendant is entitled to assume the judge will perform his solemn duty to assess punishment upon consideration of relevant evidence. See Jefferson, supra, at 472. In the case at bar the defendant could not know, until after the judge assessed punishment, that she needed to request a recusal.

It is a denial of due process for the court to arbitrarily refuse to consider the entire range of punishment for an offense or to refuse to consider the evidence and impose a predetermined punishment. This is what took place in the case at bar. See Howard v. State, 830 S.W.2d 785 (Tex. App. San Antonio 1992, pet. ref'd); Norton v. State, 755 S.W.2d 522 (Tex. App. Houston [1st Dist.] 1988), petition for discretionary review refused, 771 S.W.2d 560 (Tex. Crim. App. 1989); Earley v. State, 855 S.W.2d 260 (Tex. App. Corpus Christi 1993, writ dsm'd).

Judgment of the trial court is reversed and the cause remanded for proceedings consistent with this opinion. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b).

JOHN A. JAMES, JR.

Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Justice James (Retired)

Reversed and remanded

Opinion delivered and filed June 7, 1995

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