Nicky Von Waller v. The State of Texas--Appeal from 173rd District Court of Henderson County

NO. 12-03-00377-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

NICKEY VON WALLER, APPEAL FROM THE 173RD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Nickey Von Waller ( Appellant ) was convicted of aggravated sexual assault and was sentenced to ten years of imprisonment, probated for ten years, and assessed a $7,500.00 fine. Appellant s probation was later revoked, and he was sentenced to ten years of imprisonment. In one issue, Appellant challenges the trial court s order revoking his probation. We affirm.

Background

On April 26, 2001, Appellant was indicted for the offenses of aggravated sexual assault of a child and sexual assault of a child. On October 7, 2002, Appellant s case was tried before a jury, and during the trial, Appellant pleaded guilty to the offense of aggravated sexual assault. Following a trial on sentencing, the jury assessed punishment at ten years of imprisonment, probated for ten years, and a $7,500.00 fine.

Appellant was placed on community supervision on October 9, 2002. On September 4, 2003, the State filed a motion to revoke, alleging that Appellant failed to comply with the terms of his probation. Appellant pleaded true to three of the six counts alleged in the motion. On October 3, 2003, after hearing arguments and evidence, the trial court found all of the allegations contained in the State s motion true, revoked Appellant s probation, and sentenced Appellant to ten years of imprisonment.

On October 30, Appellant filed a motion for new trial, a notice of appeal, and a motion to recuse. The motion for new trial and motion to recuse both alleged that the trial judge, Carter Tarrance, was not impartial, but had a personal bias or prejudice against Appellant. Specifically, the motion argued that

[o]n or about April 17, 2003, Judge Tarrance told Defendant that You fathered a child by a twelve year old. If you ever come back in front of me again, you will not like what I will do to you. On or about October 3, 2003, after a hearing on a Motion to Revoke Community Supervision, Judge Tarrance sentenced Defendant to the maximum punishment allowed.

On December 5, 2003, Judge Jack Holland of the 173rd Judicial District Court heard Appellant s motion to recuse. // At the hearing, the only witness to testify was Appellant. He stated that after he pleaded guilty to the aggravated sexual assault charge, the judge said to him, You fathered a child by a twelve year-old, and if you every [sic] come back in front of me again you will not like what I do to you. Appellant also said that he did not think those comments were fair, that he did not believe Judge Tarrance was impartial, and that he did not think Judge Tarrance would give him a fair hearing on his motion for new trial. At the conclusion of the hearing, Judge Holland denied Appellant s motion.

Appellant now challenges the imposition of his original sentence on appeal, contending that Judge Tarrance was not impartial and had predetermined his sentence before the hearing on the State s motion to revoke.

Was Appellant s Sentence Predetermined?

Appellant contends that he was denied due process of law because the trial court had predetermined his sentence. Specifically, Appellant contends that the following statements Judge Tarrance made to him demonstrate Judge Tarrance s impartiality, bias, and predetermination of Appellant s ten-year sentence:

1. On April 17, 2003, at a plea hearing on an unrelated evading arrest charge, Judge Tarrance told Appellant, You sat in here enough and heard me enough. Anyone that fathers a child by a 13-year-old you come back here again, you can just imagine what s going to happen to you. . . . Just count on it. Got it? The judge also said, I hope I don t see you again.

2. During the October 3 hearing on the State s motion to revoke, Judge Tarrance stated, in response to a question by Appellant s attorney to Appellant that the judge deemed immaterial, If she told him to don t put his nose on the side of the wall, then that s what he s supposed to do if the Court ordered it.

Appellant also argues that Judge Tarrance had predetermined Appellant s sentence by refusing to consider any mitigating evidence during the hearing; namely, Appellant s lack of transportation, his work schedule, . . . the fact that Appellant had not reoffended and the fact that he had several witnesses who believed that [Appellant] had been rehabilitated to the point that he did not present a danger to the community.

We first note that Appellant did not 1) object to any of these statements during either hearing, or 2) timely file a motion to recuse prior to the hearing on the motion to revoke; therefore, Appellant has waived his predetermination of sentence issue. // See Washington v. State, 71 S.W.3d 498, 499 (Tex. App. Tyler 2002, no pet.) (holding that appellant waived predetermination of sentence claim by failing to object to trial judge s statements during hearing on motion to revoke); Fielding v. State, 719 S.W.2d 361, 367 (Tex. App. Dallas 1986, writ ref d) (appellant waived any error by failing to timely object or file a motion to recuse, even where the issue was raised in the appellant s motion for new trial).

Even if Appellant had not waived this issue, his argument would not pass muster. We agree that it is a denial of due process for a trial court to arbitrarily refuse to consider the entire range of punishment or refuse to consider mitigating evidence and impose a predetermined judgment. See Burke v. State, 930 S.W.2d 230, 234 (Tex. App. Houston [14th Dist.] 1996, pet. ref d). However, in the instant case, there is nothing in the record to indicate that Appellant was denied due process. The record demonstrates that Judge Tarrance s comments were an attempt to persuade Appellant to comply with the terms of his probation and impress upon him the gravity of his actions. Judge Tarrance did not specifically promise to sentence Appellant to a finite number of years if he violated his probation; an act, which if committed, would lend credence to Appellant s predetermination-of- sentence argument. See Howard v. State, 830 S.W.2d 785, 787 (Tex. App. San Antonio 1992, pet. ref d); Jefferson v. State, 803 S.W.2d 470, 471 (Tex. App. Dallas 1991, pet. ref d); Cole v. State, 757 S.W.2d 864, 865 (Tex. App. Texarkana 1988, pet. ref d) (each holding that trial court s promise to sentence defendant to a specific number of years if he did not comply with the terms of his probation violated due process by predetermining sentence). Accordingly, Appellant s sole issue is overruled.

Conclusion

Appellant has not adduced any evidence to demonstrate that Judge Tarrance predetermined his sentence prior to the hearing on the State s motion to revoke. Therefore, the judgment of the trial court is affirmed.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 30, 2004.

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

(DO NOT PUBLISH)