                            PD-0559-15

                               No- 09-13-O0375-CR




                         IN THE COURT OF CRIMINAL APPEALS

                                    OF TEXAS




                             TRITON NASHON JOUBERT,

                                                Petitioner

                                        v.




                               THE STATE OF TEXAS,

                                               Appellees



           ON DISCRETIONARY REVIEW FROM THE NINTH DISTRICT OF TEXAS
                   COURT OF APPEALS IN CAUSE NO. 09-13-00375-CR




                  APPELLANT'S PETITION FOR DISCRETIONARY REVIEW




                                                      Trivon Nashon Joubert
                                                      TDCJ-TDiUllWt
                                                      George Beto Unit
                                                      1391 FM 3328
                                                      Tennessee Colony/ Texas 75880

                                                      PRO SE




                                                                            F.H \H
                                                               30UHT OF CRIMINALISM
                                                                     MAY 08 20b
RECEIVED
   MAY - 4 2015                                                   AbslAcoste, Clerk
  CAROL ANNE HARLEY
  CLERK OF THE COURT
NINTH COURT OF APPEALS
                         TABLE   OF   CONTENTS


                                                 Page

Table of Contents                                 i-

Index of Authorities                              ii-

Statement Regarding Oral Argument                 1

Statement of the Case                             1

Statement of the Procedural History               1
Grounds for Review                                2

Arguments

1.   Error in giving maximum sentence.            3
2.   Error in assessing fine.                     7


Prayer                                            7

Certificate of Service                            9

Appendix
                               INDEX   OF   AUTHORITIES

CASES                                                                                    PAGE



MsCleran v. State, S.W.2d 108 (Tex. Crim. App. 1983)                                      3

Geraales v. Jbhnscn, 994 F.Sup?. 759, 762 (N.D. Tex. 1997)                                3

United States v. Sciuto, 531 F.2d 842, 846 (7th Cir. 1976).                               3

Earley v. State, 855 S.W.2d 260, 262-63 (Tex. App. - Corpus Christi 1993)                 3

Gcnzales, 994 F.Supp. at 764                                                              4

Fielding v. State, 719 S.W.2d 361, 365-370 (Tex. App. Dallas 1985, pet. ref'd)            4
Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App. - Texarkana 2002, pet. ref'd.)           4

Earley v. State, 855 S.W.2d 260 Tex. App. - Corpus Christi 1993)                          4
Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004)                                    7
WLltumer v. State, Kb. C9-13-002CO-CR (Tex. App. - Beaumont 2013, no pet. )(lSbt published)7



STATUTES


Texas Constitution Article I, § 19                                                        7

8th Amendrent United States Constitution                                                  4

Article I, Section 13, Texas Constitution                                                 4




                                            n.
                             STATEMENT REGARDING ORAL ARGUMENT

              Petitioner submits that oral argument will not assist the Court and

    that disposition by per curiam opinion is appropriate.

                                  STATEMENT OF THE CASE


              Petitioner, Trivon Nashon Joubert was indicted for the offense of aggravated

    robbery.      (CRp.6).   On April 23, 2012, Petitioner was granted deferred adjudication

    by the District Court. (CR p.23 - 24).          Later, the State moved to revoke Petitioner's

    un-adjudicated probation.        (R.R. 4).     Petitioner pled true to counts 1-8

    of the State's motion.       (R.R. p. 4).     However, the State's written motion to

    revoke the un-adjudicated probation is not in the clerk's record.                 See CR.

    Txriex.     Petitioner filed a written objection to the trial court's sentence.

    (.CR. p. 53).

                              PROCEDaRAL HISTORY OF THE CASE


*             The trial court revoked Petitioner's unadjudicated probation, found

    Petitioner guilty of aggravated robbery and assessed punishment at forty-five

    (45) years in the Institutional Division.              (R.R. 1:12).   The trial court also

    certified that this is not a plea-bargain case and the Petitioner filed a

    timely Notice of Appeal on August 12, 2013.                The Court of Appeals affirmed

    the Petitioner's conviction.         Thus, Petitioner files this present action.




                                                 Page 1 of 9
                                 GROONDS FOR REVIEW


1.   The trial court erred in assessing an excessive sentence over Petitioner's

     objection.    (RR p. 12).   (CR. p. 53).



2.   The trial court erred in assessing a fine of five hundred dollars in

     the written judgment without oral pronouncement in open court. (RR pp.

     11 - 12; CR p. 43).




                                         Page 2 of 9
                          ARGUMENT FOR FIRST GROUND



1.   The trial court erred in assessing an excessive sentence over Petitioner's
     objection. (RR p. 12). (C.R. p- 53).


      1.    Preservation of Alleged Error

      In Mcderan v. State, S.W.2d 108 (Tex. Crim. App. 1983), the Court noted, in dictum,

that "[a] court's arbitrary refusal to consider the entire range of punishment
would constitute a denial of due process[.]"              Texas trial courts have wide
discretion in determining the proper punishment in a revocation hearing,
but due process guarantees a defendant the right to a hearing before a "neutral
and detached hearing body."         One feder court has stated, in holding that
Judge Baraka prejudged a probationer's punishment:
                    [A] defendant is entitled to a pro
                    bation  revocation hearing befoe a
                    judicial     officer      who   has   not    pre
                    determined       that      probation        should
                    be revoked or that a particular pun
                    ishment should be imposed. Gonzales v.
                    Johnson,   994 F.Supp. 759, 762 (N.D. Tex. 1997).

In supervising a probationer, a trial judge must "constantly remember that
he may one day be cast in the role of trier of fact in a revocation proceeding,
and that in that event he will be required to disqualify humself unless he
has refrained from pre-judgment, united States v. Sciuto, 531 F.2d 842, 846 (7th dr.
1976).

         A trial court's arbitrary refusal to consider the entire range of punish
ment in a particular case violates due process. Earley v. State, 855 S.W.2d 260,
262-63 (Tex. App. -Corpus Christi 1993), pat. dism'd, 872 S.W.2d 758 (Tex. Crim. App. 1994).
A trial judge may certainly impress upon a prospective probationer the seriousness
of the possible consequences of a failure to abide by the terms and conditions
of probation, but it is an altogether different thing to promise to impose
 the maximum punishment if a probationer fails to abide by the terms of probation

                                            Rage 3 of 9
and then carry through on that promise without "actually considering the

evidence presented at the revocation hearing. Gonzales, 994 F.Supp. at 764.

      This is the evil which the eminent Chief Justice Guittard warned of

in his dissent in Fielding v. State, 719 S.W.2d 361, 365-370 (Tex. App. Dallas 1986, pet.

ref'd).     The Chief Justice considered an approach that pre-determines a sentence

witout considering mitigating factors (1) effectively excludes evidence rel

evant to punishment; (2) it precludes the judge from considering the full
range of punishment prescribed by law; (3) hence, it deprives the defendant
of a fair and impartial tribunal at the punishmnent hearing.             Id at 358.

      The State erroneously relies on Tejxeira v. State, claiming Petitioner failed
to preserve this error by not making a timely objection. However, Petitioner's
attorney did file a handwritten objection to the sentence on the day of sentencing
wherein he alleged the sentence was excessively disproportionage and unreasonable
under the 8th Amendment to the United State's Constitution and Article I,
Sec. 13 of the Texas Constitution. (See CR: 53).
      2. The Record Expressly Supports Petitioner's Allegations:
      The Courts have visited an issue of this exact magnitude in Earley v. State,
855 S.W.2d 260 (Tex. App. - Corpus Christi 1993), where the record contained comments
which [they] ffound] highly relevant to appellant's point of error.               At the
opening of [Earley*s] revocation proceeding, Judge Baraka, before hearing
any evidence, told [Earley] that, "I am just upset that ... you did a third-
degree felony,      I would rather have seen you with a first degree, because
I would like to give you life." This statement, in combination with his
earlier comments, clearly shows that Judge Baraka effectively decided the
cases before listening to the evidence and puts his prior comments into pro
spective. Id. at 262-263.
          Likewise, the record in this present case, clearly reflects that Judge
Layne Walker showed bias in his opinionated rant during defense counsel's

                                        Page 4 of 9
attempt to present mitigating evidence from Petitioner's mother:

                    [Reporter's Record, Volume I, Page 7]

 8           [THE DEFENDANT]:      I would like to get one

 9   more chance,    sir, even —

10           [THE COURT]:    One more chance to do what?

11   Kill somebody?

12           [THE DEFENDANT]:      No, sir.    Sow you that I

13   can do better.

14           [THE COURT]:    Do better?

15           [THE DEFENDANT]:      So that I can prove to you

16   I can get off papers.

17           [THE COURT]:    Here's teh deal:       You don't

18   even have any remorese for going to Dunkin' Donuts and

19   you —   was it your brother?

20           [THE DEFENDANT]:      Yes, sir.

21           [THE COURT]:    You and your brother go in

22   there sticking a gun in that person's face and robbing

23   them.   You never even had remorese for that.         You didn't

24   feel a bit bad about it.

25           [THE DEFENDANT]:      That was the past, sir.      I

                    [Reporter's Redord, Volume T, Page 8]

 1   got remorse now.

 2           [THE COURT]:    It may be the past, but I'm

 3   going to judge you based on your past.          Make sure you

 4   understand that.     Everything that's fixing to come your

 5   way is for everything you've done in the past.          That's
 6   what this is all about.       You told your probation after you

 7   robbed that —     those peopel and y'all stuck that gun in


                                      Page 5 of 9
8    their face, or wherever you pointed it, "

     After the above exchange, the judge then looks to the new allegations

of burglary of a habitation, (Cause No. 13-17057), which was dismissed,

on the State's Motion, less than 30 days later, to contemporaneously prosecute

the new cause within the State's revocation hearing:                (See Appendix, Exhibit A)

                  [Reporter's Record/ Volume 1/ Page 8]

17           [THE DEFENDANT]:     I've changed since that

18   day, sir.

19           [THE COURT]:     You did.     I agree with you.

20   You did change.

21           [THE DEFENDANT]:     I changed a whole lot.

22           [THE COURT]:     Instead of committing a new

23   robbery case where you stick a gun in somebody's face,

24   you went and broke in somebody's home;            yes, no?

25           [THE DEFENDANT]:     Yes, sir.      But they got

                  [Reporter's Record/ Volume 1/ Page 9]

 1   all they —   they got their stuff back.

 2           [THE COURT]:     Does that make it okay?         Who

 3   taught you that?

 4           [THE DEFENDANT]:     It don't make it okay.            I

 5   went back and talked to the man, apologized to the man.

 6           [THE COURT]:     Who told you that that was an

 7   okay way to live?      You get caught, and then you go give

 8   the stuff back.     Had you not been caught, you'd have

9    never gave that stuff back.         The next step for you is

10   shooting somebody, because the rules don't apply to

11   you.   You do whatever you want to do.            You roll however

12 you choose to roll.        And anybody that gets in your


                                         Page 6 of 9
13    way —     if you have to use a gun, you'll use a gun.          If

14    you have to break into their home, that's what you're

15    going to do.      But the rules'just don't apply to you,
16    Trivon.     You tell me where I'm wrong.


      It is obvious, by the above exchange, that Judge Walker pre-judged the

Petitioner and denied him due couse of law in revoking his probation after

stating, before mitigating evidence was finished being presented, , "[i]t
may be the past, but I'm going to judge you based on your past.                Everything
that's fixing to come your way is for everything you've done in the past."

Vemcn's Ann. Texas Const. Art. I, § 19.

                            ARGUMENT FOR SECOND GROUND


II.   Trial Court erred in assessing a fine of $500-oo without oral findings.



      The Court of Criminal Appeals in Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App.

2004) holds that when the trial court revokes an order for deferred adjudication

probation, it cannot include the fine that it previously imposed in the original
proceedings unless it orally pronounces the fine at the revocation hearing
(131 S.W.3d at 502). See also Wiltumsr v. State, Nd. 09-13-00200-CR (Tex. App - Beaurcnt 2013,

no pet.) (NDt published).

                                          PRAYER


      WHEREFORE PREMISES CONSIDERED, the Petitioner prays that his sentence

be set aside and that he be given a new sentencing hearing and that he be

given such relief as justice may demand.
                                                         Respectfully submitted,


                                                         Trivon Nashon Joubert
                                                         TDCJ# {frSh^fr
                                                         George Beto Unit
                                                         1391 FM 3328
                                                         Tennessee Colony, Texas 85880


                                           Page 7 of 9
                        INMATE   DECLARATION
  Pursuant to Title 6, Texas Civil Practice and Remedies Code §§ 132.001-003.


     I, "^Wlun^ "VooWcA                         i TDCJ-ID* \%%\<\H % , being
presently incarcerated at the George Beto Unit, in Anderson County, Texas,

do declare under penalties of perjury that I am the Petitioner in the attached

Petition For Discretionary Review, and all statements contained therein are

true and correct.




Signed on this the y~J— day of |Vyc^p C.K                         ' 20 _J_S_.


                              SIGNATURE OF DECLARANT/PETITIONER




                                  Page 8 of 9
                       CERTIFICATE OF SERVICE



     I hereby certify that the foregoing Petition for Discretionary Review
was served on the Counsel for the State, Wayln G. Thompson, Asst. District
Attorney, Jefferson County, Texas, 1001 Pearl St., Suite 300, Beaumont, Texas
77701 on this ^L3—         day of MaCcK                          '20 \5~ '




                             SrJSUAmm/     llMLWhAI
                            Signature of TMVON NASHON JOUBERT




                                  Page 9 of 9
•UWW^..; 'M,w^pF^%vwi




                        APPENDIX
      uigMMdfeiewBWaSMHfi          MJHHHIMHunilTIl

                                                       "EXHIBIT          'A'


*Q>
                                                            no. 13-17057                             DA #706170
                                                          (Burglary of a Habitation)

                   THE STATE OF TEXAS                               §          IN THE 252Dd DISTRICT COURT

                   VS.
                                                                    §          OF

                   TRTVON N. JOUBERT                                §          JEFFERSON COUNTY, TEXAS

                                                        MfiTTON TO DISMISS


                    TO THE HONORABLE JUDGE OF SAID COURT;
                             NOW COMES the State of Texas by and through the undersigned Assistant Criminal
                    District Attorney in and for the County of Jefferson, State of Texas and respectfully requests the
                    Court dismiss the above entitled and numbered criminal action for the reason:
                                                                    I.

                                   DISMISS: ATTHE REQUEST OF COMPLAINING WITNESS.
                            WHEREFORE, PREMISES CONSIDERED, it is prayed that the above entitled and
                     numbered cause be dismissed.
                                                             Respectfully submitted,




                                                             RA^gELGIlOVE, Assistant
                £SOi5&.                                      Criminal District Attorney
                                                             Jefferson County, Texas
                                                             1001 Pearl St., Suite 300
                                                             Beaumont, Texas 77701
                                                             Telephone No. 409-835-8550
                                                             Bar Card No. 24058440

                                                                ORDER

                                                                                                       $k*
                                     /egoing Motioa toDismiss having been presented to me on this the ' Iday of
                              ZMi rS/^ 20 / jlnd the same having been considered, rt is therefore, ORDERED,
                      ADp5GWand DECREED that the said entitled and numbered cause be the same is hereby
                      dismissed.




                                                                  JUDGE PRESIDING
