Nona Ellington v. State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00089-CR
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NONA DIANA ELLINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 28077-B
Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Ross
O P I N I O N

Nona Ellington pled guilty to felony theft and received a two-year state jail sentence, probated for four years. The court revoked her community supervision, and she was sentenced to serve two years in a state jail. Ellington appeals, complaining that the trial court erred in failing to consider the full range of punishment options available at her revocation hearing.

The State's original application to revoke Ellington's community supervision was based on her alleged failure to abstain from the use of marihuana and amphetamines. The State amended the application, adding an additional allegation of use of amphetamines. At the hearing on the State's motion, Ellington pled true to the allegations and asked the court to continue her community supervision. The court revoked community supervision, imposing the original two years' confinement in a state jail.

Ellington contends reversal is required because the judge's remarks at the hearing indicate he wholly failed to consider the statutory options available for punishment and demonstrate a commitment to a predetermined outcome. The remarks, in context, are as follows:

[DEFENSE ATTORNEY]: Your Honor, you've heard the evidence. She's asking for a second chance. And if the Court can, she'll understand. If the Court can't, we're asking for whatever the Court can do.

 

THE COURT: A second chance? Go ahead.

 

[PROSECUTOR]: Well, Your Honor, I was just going to point out to the Court that from the time that she left this Courtroom and received probation from Your Honor, it was fifty-four days before she was smoking marijuana. And I think the Court can take into consideration her testimony about what type of amphetamines these are.

 

THE COURT: A second chance indeed. A second chance to go out and violate the rules of probation, to flaunt the authority of this Court, to thumb your nose at this Court's orders? Huh-uh. Not this Judge. I revoke your probation, and I assess your punishment at two calendar years [sic] confinement in a state jail facility, day for day, with credit for time served. Any reason in law the sentence should not be formally pronounced?

 

[DEFENSE ATTORNEY]: No, sir.

 

Ellington contends that the trial judge refused to consider the full range of punishment options available, specifically, the option of continuing her community supervision, and that such failure violated Ellington's right to due process. This contention is based on authority holding that an arbitrary refusal to consider the entire range of punishment constitutes a denial of due process. See McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983); see also Hull v. State, 29 S.W.3d 602, 604-05 (Tex. App.-Houston [1st Dist.] 2000, pet. granted); Earley v. State, 855 S.W.2d 260, 262-63 (Tex. App.-Corpus Christi 1993), pet. dism'd, improvidently granted, 872 S.W.2d 758 (Tex. Crim. App. 1994); Howard v. State, 830 S.W.2d 785, 787-88 (Tex. App.-San Antonio 1992, pet. ref'd); Jefferson v. State, 803 S.W.2d 470, 471-72 (Tex. App.-Dallas 1991, pet. ref'd) (all holding remarks indicating judge was delivering promised outcome showed lack of impartial consideration of both relevant evidence and statutory sentencing options); Fielding v. State, 719 S.W.2d 361, 368 (Tex. App.-Dallas 1986, pet. ref'd) (Guittard, C.J., dissenting).

The initial question is whether the issue has been preserved for appellate review. This Court reviewed a similar situation in Cole v. State, 757 S.W.2d 864 (Tex. App.-Texarkana 1988, pet. ref'd). (1) In that case, the defendant claimed the trial judge prejudged his sentence and failed to consider mitigating evidence. We noted the defendant had been given the opportunity to object, but failed to raise any objection to the punishment or the procedures followed, either at the initial granting of deferred adjudication or at the punishment hearing or sentencing. We held that error was waived for failure to voice an objection to the imposition of punishment or to the trial judge's alleged failure to consider the evidence. Id. at 865-66 (trial judge wrote on docket sheet defendant would receive seventy-five years' imprisonment if he violated terms of deferred adjudication); see also McClenan, 661 S.W.2d at 110. Appellate courts do not consider any error counsel could, but did not, call to the trial judge's attention when the trial judge could have avoided or corrected the error. Cole, 757 S.W.2d at 866.

The Dallas Court of Appeals has since agreed with our reasoning in a factually similar case, likewise concluding that, because there was no objection made to the procedure or the punishment, the claim of error had been waived. Cole v. State, 931 S.W.2d 578, 580 (Tex. App.-Dallas 1995, pet. ref'd).

There are cases in which appellate courts have concluded waiver was inapplicable, but they involved situations where no punishment hearing was conducted, and thus the defendant had no real opportunity to object. (2) That is not our situation. In this case, Ellington failed to object to the judge's comments at the sentencing phase of her revocation hearing or to the imposition by the court of the two years' confinement when there was a clear opportunity to do so. A full revocation hearing was conducted in which Ellington pled true to violations of her community supervision and testified on her own behalf. There is no indication in the record the judge had predetermined that if Ellington violated her community supervision he planned on imposing the maximum sentence. In the absence of a clear showing to the contrary, we are to presume the trial judge was a neutral and detached officer. Earley, 855 S.W.2d at 262.

In light of these facts, we conclude the claim of error was not preserved for appellate review. Even if it had been, the record does not show the trial judge had predetermined the sentence in this case. The sentence Ellington received was the punishment originally assessed when she was placed on community supervision. The contention of error is overruled.

We affirm the judgment.

 

Donald R. Ross

Justice

 

Date Submitted: December 12, 2001

Date Decided: December 21, 2001

 

Do Not Publish

 

1. Chief Justice Cornelius wrote the opinion, Justice Bleil concurred, and Justice Grant dissented.

2. In Watson v. State, 884 S.W.2d 836, 838-39 (Tex. App.-El Paso 1994), rev'd on other grounds, 924 S.W.2d 711 (Tex. Crim. App. 1996), the court distinguished its case because the defendant had no opportunity to object before sentence was pronounced. It noted that, although due process claims may be preserved in a motion for new trial, it is not necessary to raise a point in a motion for new trial in order to preserve the claim for review on appeal.

The Dallas court, in Jefferson v. State, 803 S.W.2d 470, 472 (Tex. App.-Dallas 1991, pet. ref'd), concluded that the appellant had no reason to request relief (recusal of the trial judge) until after the judge had assessed punishment. The court concluded the appellant did not knowingly waive the right to a fair and unbiased tribunal. The court also pointed out that, until the judge assesses punishment, the defendant is entitled to assume the judge will perform his or her solemn duty to assess punishment on consideration of relevant evidence. Id. The court also stated that once the judge assesses punishment based on factors such as his or her promised punishment period, any recusal motion or objection would be futile. Id.

The San Antonio court reviewed a similar situation, concluding there was no indication the appellant had knowingly waived his right to a fair and impartial forum and stating the record did not disclose that a lesser sentence than ninety-nine years was ever considered. Howard v. State, 830 S.W.2d 785, 788-89 (Tex. App.-San Antonio 1992, pet. ref'd).