                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-13-00044-CR
                                 ________________________

                     PRINCE ANTHONY LAJUAN PHEA, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 108th District Court
                                      Potter County, Texas
              Trial Court No. 59,848-E; Honorable Douglas R. Woodburn, Presiding


                                          August 6, 2014

                               MEMORANDUM OPINION
                     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Pursuant to a plea bargain, on May 18, 2011, Appellant, Prince Anthony Lajuan

Phea, was convicted of possession of cocaine,1 a state jail felony, and sentenced to two

years confinement, suspended for two years, and a fine of $2,000. In October 2012, the

State moved to revoke Appellant’s community supervision on the grounds he had

violated the terms and conditions of community supervision. Appellant entered a plea of


      1
          TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010).
true to the allegations in the State’s motion, and after evidence was presented, the trial

court found the allegations to be true, revoked Appellant’s community supervision and

sentenced him to two years confinement in a state jail facility and a $2,000 fine. By two

issues, Appellant asserts he was denied due process of law under the United States

Constitution and Article I, Section 19 of the Texas Constitution because the trial court

refused to consider the full range of punishment. Additionally, the District Clerk included

attorney’s fees not ordered by the trial court in the Bill of Cost and that document was

incorporated into the final judgment.              We modify the judgment to exclude those

attorney’s fees and affirm as modified.


                                             BACKGROUND


        At the guilty plea hearing in 2011, after announcing Appellant’s punishment of

two years was suspended, the trial court added, “[w]ell, I just want you to be sure and

abide by this because, you know, if you go to state jail, you’re going to be in there all

day, every day, for two years.” At the revocation hearing, after the defense rested, the

trial court announced, “I do find that the allegations are true. I sentence you to two

years in the state jail facility and a $2,000 fine.”


        By two issues, Appellant argues he was denied a neutral and detached judge

who arbitrarily refused to consider the entire range of punishment and who imposed a

predetermined sentence. The State counters that Appellant’s failure to object waived

his complaint for appellate review2 and alternatively, maintains the trial court’s utterance


        2
           Courts of appeals are divided on whether the right to an unbiased, impartial judge is an absolute
right that cannot be waived. See Hernandez v. State, 268 S.W.3d 176, 184 n.34 (Tex. App.—Corpus
Christi 2008, no pet.) (holding a defendant has an absolute right to an impartial judge not only when guilt
or innocence is at issue, but also during the punishment phase of trial). This Court has held that a trial
court’s failure to consider the full range of punishment may be raised for the first time on appeal. See
                                                     2
at the original plea hearing does not show lack of impartiality. We disagree with the

State on Appellant’s failure to object, but agree with the State that there is no showing

of bias or partiality.


                                           ANALYSIS


         Due process protections extend to revocation proceedings because they deprive

an individual of liberty. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36

L.Ed.2d 656 (1973). The Texas Constitution requires no less. See Leonard v. State,

385 S.W.3d 570, 577 (Tex. Crim. App. 2012) (citing Caddell v. State, 605 S.W.2d 275,

277 (Tex. Crim. App. 1980)). Due process requires a neutral and detached hearing

body or officer. Hernandez v. State, 268 S.W.3d 176, 182 (Tex. App.—Corpus Christi

2008, no pet.).          A trial court’s arbitrary refusal to consider the entire range of

punishment is a bias against a phase of the law upon which the defendant is entitled to

rely, depriving the defendant of a neutral and detached judge, and thereby violating the

defendant’s right to due process. Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim.

App. 2005).      Absent a clear showing of such bias, a trial court’s actions will be

presumed to have been correct. Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App.

2006).


         A person convicted of a state jail felony is not entitled to parole or good conduct

time. See Best v. State, 118 S.W.3d 857, 866 (Tex. App.—Fort Worth 2003, no pet.).

Article 42.12, section 15(h)(1) provides that a defendant confined in a state jail facility

does not earn good conduct time for time served. TEX. CODE CRIM. PROC. ANN. art

__________________________
Grado v. State, No. 07-11-00468-CR, 2013 Tex. App. LEXIS 7989, at *8-12 (Tex. App.—Amarillo June
28, 2013, pet. granted Nov. 6, 2013) (mem. op.) (not designated for publication).
                                               3
42.12, § 15(h)(1) (West Supp. 2014). Accordingly, a state jail sentence must be served

day for day.    See Ex parte Baker, 297 S.W.3d 256, 259 (Tex. Crim. App. 2009)

(emphasis added). Here, the trial court’s statement at the original plea hearing that

Appellant would be required to serve “all day, every day, for two years” was nothing

more than an admonishment of the potential consequences of failure to abide by the

terms and conditions of community supervision. It was not an absolute promise to

impose an arbitrary punishment without considering the evidence to be presented at a

subsequent revocation hearing.        As such, it does not establish a bias or a

predetermined sentence applied over a year after the original plea hearing. Here, there

is nothing in the record to indicate the trial court decided Appellant’s punishment without

considering the evidence.     Appellant entered a plea of true to all of the State’s

allegations. Having examined the entire record, we conclude Appellant has not made a

clear showing of bias to rebut the presumption that the trial court’s action was proper.

The complained-of comments in and of themselves do not establish the trial court’s

refusal to consider the full range of punishment at the revocation hearing. See Earley v.

State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi 1993), pet. dism’d, 872 S.W.2d

758 (Tex. Crim. App. 1994). Appellant’s two issues are overruled.


                                    ATTORNEY’S FEES


      The written judgment in this case reflects the assessment of court costs “[a]s per

attached Bill of Cost,” and the District Clerk’s Bill of Cost reflects “Attorney fee(s) –

Probation Revocation . . . $400.” In order to assess attorney's fees as a court cost, a

trial court must determine that the defendant has financial resources that enable him to

offset in whole or in part the cost of legal services provided. TEX. CODE CRIM. PROC.

                                            4
ANN. art. 26.05(g) (West Supp. 2014). Here, the record reflects the trial court found

Appellant indigent and unable to afford the cost of legal representation both before and

after the revocation hearing.3     Unless a material change in his financial resources

occurs, once a criminal defendant has been found to be indigent, he is presumed to

remain indigent for the remainder of the proceedings. TEX. CODE CRIM. PROC. ANN. art.

26.04(p) (West Supp. 2014).        Therefore, because there is no evidence of record

demonstrating that his financial resources had changed, we presume Appellant was

indigent at the time of revocation. In order to rebut that presumption the record must

reflect some factual basis to support the determination that the defendant was capable

of paying attorney's fees at the time of assessment. Barrera v. State, 291 S.W.3d 515,

518 (Tex. App.—Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887 (Tex.

App.—Amarillo 2009, no pet.). Here, the record does not contain a pronouncement,

determination or finding that Appellant had financial resources that enable him to pay all

or any part of the fees paid his court-appointed counsel, and we are unable to find any

evidence to support such a determination. Therefore, we conclude that the judgment

improperly orders the repayment of attorney’s fees. See Mayer v. State, 309 S.W.3d

552, 555-56 (Tex. Crim. App. 2010). When the evidence does not support an order to

pay attorney's fees, the proper remedy is to delete the order. Id. at 557. Accordingly,

we modify the judgment to include the following sentence: “As used herein, the term

‘court cost’ does not include attorney’s fees.” The trial court is ordered to direct the

District Clerk to prepare an amended Bill of Cost in accordance with the modified

judgment.



       3
         On December 7, 2012, the trial court appointed counsel for purposes of the revocation
proceeding, and on February 13, 2013, the trial court appointed counsel for purposes of appeal.
                                              5
                                    CONCLUSION

      The trial court’s judgment revoking Appellant’s community supervision is affirmed

as modified.




                                              Patrick A. Pirtle
                                                  Justice


Do not publish.




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