                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00110-CR



         DEREK CLINTON WARD, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 124th District Court
                Gregg County, Texas
              Trial Court No. 42433-B




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                     MEMORANDUM OPINION
         After Derek Clinton Ward entered an open plea of guilty to the state jail felony of theft of

property valued at $1,500.00 or more but less than $20,000.00,1 the trial court sentenced Ward to

twenty-two months’ incarceration. Ward has appealed, arguing that the trial court abandoned its

duty to remain impartial in the sentencing process. We reject this argument and affirm the trial

court’s judgment and sentence.

I.       Procedural Background

         Ward entered an open plea of guilty to the charged offense of theft April 9, 2015,2 and

returned for sentencing on May 21, 2015. It appears that although Ward had entered an open plea,

there was something of an informal agreement between Ward and the State wherein the State

would recommend that Ward would avoid incarceration if he appeared at the sentencing hearing

with $3,750.00 in restitution. However, when Ward appeared at the sentencing hearing, he did not

have the $3,750.00 in restitution; the only money proffered on his behalf was $1,000.00 brought

by Ward’s mother. After a hearing, the trial court sentenced Ward to twenty-two months’

incarceration in a state jail facility.




1
 Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 31.03, 1973 Tex. Gen. Laws 883, 929–30 (amended 1975,
1977, 1981, 1983, 1985, 1987, 1989, 1991, 1993, 1995, 1997, 2001, 2003, 2007, 2009, 2011, 2015) (current version
at TEX. PENAL CODE ANN. § 31.03 (West Supp. 2015)).
2
 The theft charge arose because Ward had taken an expensive welding machine from his then-employer. Initially, the
employer was being reimbursed by withholding at least a portion of Ward’s paycheck. However, the employer then
indicated that Ward had also committed significant credit card abuse against the employer, and the informal repayment
plan was abandoned. The credit card abuse case was not thereafter pursued due to problems with the loss of evidence,
and Ward denied his culpability.

                                                         2
        During the hearing on punishment, Ward related that he had become unemployed in the

days immediately following the early April plea hearing, his job as an oil-field drilling hand having

been eliminated during the downturn in the oil market. Ward (then thirty-six years old) testified

that he elected to seek unemployment benefits rather than pursue employment. He went on to

relate that he had had four back surgeries over the years and told the court about the physically

demanding nature of his career choice. In doing so, Ward stated,

        [I]t was kind of nice to just let my back have a rest for a minute anyways. Working
        on a drilling rig when you’re 36 years old and had as many spinal surgeries that I
        have had takes a toll on your body. I kind of looked at it as just taking a second off
        and giving my body a little rest.

Ward testified that in the weeks between losing his job and the sentencing hearing, he had applied

for unemployment benefits, but that a few days before the hearing, he had been notified that he

failed to include certain information with his application and that he was waiting for paperwork to

be sent to him. He also said that although he had obtained job applications, he had not submitted

them to prospective employers. He said he only took ibuprofen for his back pain, after successfully

battling addiction to prescription pain medication. As for the job from which he had been laid off,

he was “absolutely” eligible to be re-hired, and he already had “the paperwork” establishing that

eligibility.

        After the parties’ examination of Ward drew to a close, the trial court asked him several

questions. During this exchange, the trial court referred to the time intervening between Ward’s

plea hearing and the sentencing hearing as a “vacation.” Although Ward did not object to that

characterization at the time the trial court uttered it, Ward now objects to it on appeal. For the

context in which this was said, we quote some of the trial court’s statements as made during Ward’s
                                                  3
sentencing hearing. After verifying the date that Ward had been terminated from his last job, the

trial court said, “And so knowing that the State’s recommendation is going to be two years state

jail, you decide instead of finding a job to collect restitution, that you’re going to take a vacation

for a month and a half.” Ward responded by protesting that the condition of his back had been the

reason for not seeking employment.3 The trial court then asked Ward why he should receive a

suspended sentence. Ward answered, “Because I’ll stick to the probation, complete the probation

and give you no reason for feeling like I did anything unjust, sir.”

        Ward then called his mother (a loan officer for a mortgage company) to testify. She

indicated that she was able and willing to pay $1,000.00 toward Ward’s restitution at that time and

that she could pay the remaining portion of the restitution on June 15, less than a month away.

        After a short recess, the trial court accepted Ward’s guilty plea and found him guilty as

charged of theft of property valued at $1,500.00 or more, but less than $20,000.00. The court then

described to Ward the factors taken into account in deciding the proper sentence:

               I have to decide if you deserve State Jail time, or do you deserve a shot at
        probation?

                When you pled guilty on April 9th, you knew what the State’s
        recommendation was. You knew that your obligation under that recommendation
        was to come to Court today with $3,750 and the State would recommend a probated
        sentence.

                 You personally came to Court with zero dollars.



3
 During this exchange, it was developed that Ward’s driver’s license had been re-activated after paying “some fees
from a D.W.I.” The trial court also asked Ward about a DWI charge from Shelby County, and Ward responded that
that case had been dismissed. Ward admitted to the State that he had been charged with arson and assault/family
violence (these charges arising from one incident with Ward’s girlfriend), but claimed that the State had dropped the
arson allegation while continuing prosecution of the assault case.
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              The factors I have to consider or send somebody to prison include their
       criminal history, obviously. If I was to consider just your criminal history, my
       decision is pretty easy. I would send you to prison, but I look at other factors, also.

              I look at changes that they may have made, when the criminal history was.
       I look at several factors. Criminal history does vote against you. Your felony
       offense was long ago, so that helps you some.

                I looked at the facts and circumstances of the offense.

               I can’t really consider much on the credit card abuse allegations, just
       because of the lack of proof before me. I do consider the statements you made to
       Investigator Mitchell and other factors.

                Here’s where it really comes down to my decision that I’m going to make
       today.

               You pled guilty on April the 9th knowing that your part of the obligation
       was $3,750. You say you lost your job April 10th or 11th. Instead of going out
       and finding a new job whether it’s flipping burgers at McDonald’s for minimum
       wage or anything else, you testified that you wanted to take a month-and-a-half
       vacation to rest your back. It’s not until recently, the last few days that you’ve even
       filed for unemployment. You come in here today and expect me to grant you
       probation. You expect me to grant you probation, and, say, well, I’m hoping that
       my mom’s $1,000 is enough to bail me out. It’s not this time.

               I promise you if you had gone out and flipped burgers and showed me you
       were working, I would make a different decision than I’m about to make. But you
       didn’t. No, rest my back. I’m going to see how much unemployment pays me
       instead of going out and working. That’s the problem with today’s society. We
       have a lot of people who are willing to see what the government is going to pay
       them instead of working.

              It’s not going to work here. 22 months State Jail. I will give you credit for
       time served.

Ward argues that the trial court abandoned its duty to remain a neutral and detached fact-finder;

Ward complains of the trial court’s use of the term “vacation” to describe the period between his

being laid off and the sentencing hearing. Ward further points to the trial court’s statement that he

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would be unlikely to grant Ward much relief when the court was called upon to consider whether

any of Ward’s sentence would be reduced as a result of diligent participation in applicable

programs while incarcerated.4

II.     Failure to Preserve Argument

        As previously mentioned, Ward lodged no objection to the trial court’s use of the word

“vacation” or any of the court’s other statements at any time during the sentencing hearing (not

while the trial court was questioning Ward, during the statement he gave in explaining his

reasoning for the sentence that was announced, or during any other part of the hearing). In almost

every circumstance, in order to preserve a complaint for our review, a party must first present to

the trial court a timely request, objection, or motion stating the specific grounds for the desired

ruling if not apparent from the context. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must

have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining

party must have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2).

        Although Ward attempts to invoke due process claims in his assertion that the trial court

abandoned his role as judge for that of prosecutor, Ward offers no explanation or argument as to

why we should address this unpreserved issue. In a somewhat similar situation, we observed that

un-objected to “remarks and conduct of the [trial] court may not be subsequently challenged unless

they are fundamentally erroneous.” Moreno v. State, 900 S.W.2d 357, 359 (Tex. App.—Texarkana

1995, no pet.) (citing Brewer v, State, 572 S.W.2d 719, 721 (Tex. Crim. App. [Panel Op.] 1978)).



4
 This was apparently a reference to Article 42.12, Section 15(h)(5) of the Texas Code of Criminal Procedure. See
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 15(h)(5) (West Supp. 2014).
                                                       6
In such a situation, we used the egregious harm standard from Almanza v. State, 686 S.W.2d 157

(Tex. Crim. App. 1984) (op. on reh’g), to determine if fundamental error had occurred. The alleged

error must be “so harmful that the defendant was denied a fair and impartial trial.” Moreno, 900

S.W.2d at 359. If we were to look at Ward’s brief in the most generous light possible, we might

say that he has claimed fundamental (or plain) error, i.e., the kind that obviates the need to preserve

it at the time of trial. An appellate court may, in criminal cases, “tak[e] ‘notice of fundamental

errors affecting substantial rights although they were not’ brought to the attention of the [trial]

court.” Boler v. State, 177 S.W.3d 366, 373 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)

(quoting Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001)). “No objection is required

when the error is so egregious that it rises to constitutional dimensions.” Id. (citing Jasper, 61

S.W.3d at 421).

       The trial court’s comments were neither egregiously harmful nor did they operate to deny

Ward a fair and impartial trial. Certainly, the comments did not rise to the status of a complaint

of constitutional dimension. Read in context, the trial court was commenting on Ward’s behavior

between the time of the plea hearing and the sentencing hearing. When he took Ward’s plea of

guilty, the trial court admonished him of the full range of punishment, including a probated

sentence with community supervision. Based on comments by the court and the State at the two

hearings, it is clear that some informal agreement had been reached to the effect that if Ward

brought the full restitution amount to the sentencing hearing, the State would recommend a

probated sentence. However, if there was no such restitution, then there would be no such

recommendation. At the plea hearing, the trial court warned Ward that it was not bound by any

                                                  7
plea negotiations the parties might have, but also told Ward, “[I]f you do bring the restitution, then

that may put this in a different situation. But right now it is an open plea, so you have certain

obligations you need to meet.” When testimony developed at the sentencing hearing that Ward

had worked most of his adult life in the oil-field business but made a conscious decision not to

seek employment just days after the plea hearing (even after the discussions which had evidently

taken place regarding leniency if Ward were to make restitution), the trial court was left to draw

conclusions about Ward’s suitability for community supervision and regarding Ward’s

commitment to fulfill potential obligations.

       The sentencing hearing occurred before the trial court, so there was no jury that could have

been confused or influenced by the court’s characterization of how Ward spent his time between

the hearings. See Moreno, 900 S.W.2d at 359. It also does not appear that the trial court abandoned

its role and acted as an advocate for the State. See id. The trial court’s decision process should

not be hindered by a constraint on its ability to explain the rationale behind its decision. The

fairness of the proceedings was not impugned. Even if error had occurred, it would not have been

in the nature of plain or fundamental error. Accordingly, absent such error, it was incumbent upon

Ward to preserve these issues for our review. We overrule Ward’s point of error.




                                                  8
      We affirm the trial court’s judgment and sentence.



                                           Bailey C. Moseley
                                           Justice

Date Submitted:     November 9, 2015
Date Decided:       November 10, 2015

Do Not Publish




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