                                                                               ACCEPTED
                                                                          13-14-00314-CR
                                                            THIRTEENTH COURT OF APPEALS
                                                                  CORPUS CHRISTI, TEXAS
                                                                     2/5/2015 12:06:23 PM
                                                                         DORIAN RAMIREZ
                                                                                   CLERK

                 NO. 13-14-00314-CR

             IN THE COURT OF APPEALS
                                                FILED IN
          THIRTEENTH JUDICIAL DISTRICT  13th COURT OF APPEALS
              CORPUS CHRISTI, TEXAS CORPUS CHRISTI/EDINBURG, TEXAS
    ____________________________________________
                                         2/5/2015 12:06:23 PM
              GARRETT NOVOSAD                 DORIAN E. RAMIREZ
                                                   Clerk

                            V.

             THE STATE OF TEXAS
____________________________________________________

   ON APPEAL FROM 25TH DISTRICT COURT
       OF GONZALES COUNTY, TEXAS
          CAUSE NUMBER 99-12-B
       _____________________________________

            BRIEF FOR THE STATE


                 PAUL WATKINS
                      County Attorney
                   Gonzales County, Texas


            VICTORIA W. JOHNSON
                 Assistant County Attorney
                   415 Saint Louis Street
                   Gonzales, Texas 78629
                       (830) 672-6527
                    (830) 672-5868 (fax)
                vjohnson@co.gonzales.tx.us
                  State Bar No. 24087810
                        (On Appeal)


           Attorneys for the State of Texas

          ORAL ARGUMENT WAIVED
                                      TABLE OF CONTENTS

                                                                                                   PAGE (S)

INDEX OF AUTHORITIES .............................................................................. iii

STATEMENT OF THE CASE ............................................................................ 1

STATEMENT OF THE FACTS .......................................................................... 2

SUMMARY OF THE ARGUMENT ................................................................... 4

ARGUMENT ........................................................................................................... 5

         Appellant’s Sole Point of Error
         The trial court violated defendant’s due process rights
         when it made comments demonstrating the trial
         court’s lack of impartiality and when it failed to
         consider the full range of punishment available.

         State’s Response to Appellant’s Sole Point of Error
         Appellant failed to preserve for appellate review his
         complaint that the trial court’s comments at the time
         of his sentencing demonstrated the trial court’s lack
         of impartiality and that the trial court failed to
         consider the full range of punishment available. Even
         if Appellant had preserved his complaint, the trial
         court’s comments did not show bias, or that it failed
         to consider the full range of punishment available. As
         such, Appellant’s sole point of error must be
         overruled.................................................................................................... 5

PRAYER ............................................................................................................. 11

CERTIFICATE OF SERVICE ........................................................................... 12

CERTIFICATE OF COMPLIANCE.................................................................... 13




                                                        ii
                                     INDEX OF AUTHORITIES

U.S. Supreme Court Cases

Gagnon v. Scarpelli, 411 U.S. 778
(1973) .................................................................................................................... 7

Texas Cases

Brumit v. State, 206 S.W.3d 639
(Tex. Crim. App. 2006) ........................................................................................ 7

Burke v. State, 930 S.W.2d 230
(Tex. App.—Houston 1996, pet. ref’d) ................................................................ 8

Celestine v. State, No. 09-12-00548-CR,
2013 Tex. App. LEXIS 12833
(October 16, 2013, pet. ref’d)
(not designated for publication) ............................................................................ 7

Cole v. State, 757 S.W.2d 864
(Tex. App.—Texarkana 1988, no pet.) ................................................................. 8

Earley v. State, 855 S.W.2d 260
(Tex. App.—Corpus Christi 1993, pet. dism’d) ................................................... 8

Grado v. State, 445 S.W.3d 736
(Tex. Crim. App. 2014) ........................................................................................ 5

Gillenwaters v. State, 205 S.W.3d 534
(Tex. Crim. App. 2006) ........................................................................................ 6

Teixeira v. State, 89 S.W.3d 190
(Tex. App.—Texarkana 2002, pet. ref’d) ............................................................. 5

Jefferson v. State, 803 S.W.2d 470
(Tex. App.—Dallas 1991, pet. ref’d).................................................................... 8




                                                          iii
Rules and Statutes

TEX. R. APP. 33.1 .................................................................................................. 5




                                                       iv
                           I. STATEMENT OF THE CASE

      The Appellant, Garrett Novosad, was charged by indictment with two

offenses — burglary of a habitation and theft of a firearm. (Cl. R. vol. 1 of 1, at 1).

On May 9, 2013, Appellant pled guilty to both charges in the 25th Judicial District

Court of Gonzales County, Texas, the Honorable William D. Old, III, presiding.

(Cl. R. vol. 1 of 1, at 25-28)(Ct. R. vol. 2 of 4, at 8). On July 9, 2013, Appellant

was placed on four years deferred adjudication community supervision. (Cl. R. vol.

1 of 1, at 33-40) (Supp. Ct. R. vol. 1 of 1, at 5).

      On April 11, 2014, the State filed a motion for adjudication of guilt on both

charges. (Cl. R. vol. 1 of 1, at 46-47). On May 29, 2014, Appellant pled true to all

allegations contained in the State’s motion to adjudicate guilt, the Honorable

William D. Old, III, presiding. (Cl. R., vol. 1 of 1 at 51-52)(Ct. R. vol. 3 of 4, at

7). On May 29, 2014, Appellant was sentenced to twenty-one months confinement

on both charges, to run concurrently. (Cl. R. vol. 1 of 1, at 67-69)(Ct. R. vol. 3 of

4, at 18). The trial court certified that Appellant had the right of appeal. (Cl. R.

vol. 1 of 1, at 53)(Ct. R. vol. 3 of 4, at 19). On July 25, 2014, Appellant filed a

notice of appeal. (Cl. R. vol. 1 of 1, at 82).




                                            1
                         II. STATEMENT OF THE FACTS

       A detailed recitation of the facts is not required to address Appellant’s sole

point of error. Below is a summary of the more pertinent facts as they apply to

Appellant’s sole point of error.

       When Appellant pled guilty to both counts in the indictment, and the trial

court placed him on four years deferred adjudication community supervision, the

trial court told Appellant, “you’ve got rules you have to follow. You violate any of

these rules and play games with my probation department, I’ve got a place for

you.” (Cl. R. vol. 1 of 1, at 25-28, 33-40)(Ct. R. vol. 2 of 4, at 8)(Supp. Ct. R. vol.

1 of 1, at 5).

       At the motion to adjudicate hearing, the State argued Appellant should be

adjudicated guilty and be sentenced to a state jail facility because Appellant

refused residential in-treatment patient care, Appellant tested positive for drugs on

numerous occasions, and Appellant made no real efforts toward completing his

deferred adjudication community supervision. (Ct. R. vol. 3 of 4, at 7).

       Appellant was offered, and accepted, treatment after his first positive drug

test while on deferred adjudication community supervision. (Ct. R. vol. 3 of 4, at

15-16). Upon completion of a 30-day treatment program at La Hacienda, Appellant

failed to comply with the aftercare component of the treatment program, tested

positive for drugs, and at that time was offered the opportunity to go into treatment


                                          2
in Uvalde, Texas. (Ct. R. vol. 3 of 4, at 16). Appellant wanted to discuss the

Uvalde treatment option with his attorney prior to signing an agreed order, but

Appellant never returned to sign an agreed order. (Ct. R. vol. 3 of 4, at 16, 18).

       Appellant testified he did not want to go to State Jail. (Ct. R. vol. 3 of 4, at

11). Appellant claimed he previously rejected treatment in Uvalde because he did

not fully understand his options and needed extra time to think about the treatment

option. (Ct. R. vol. 3 of 4, at 10). Appellant stated he was now willing to enter a

treatment facility in Uvalde. (Ct. R. vol. 3 of 4, at 8, 10). Appellant asked the trial

court to release him on a personal bond, so that Appellant could spend time with

his infant child, who was born in March 2014, before entering the treatment

program. (Ct. R. vol. 3 of 4, at 8, 10).

       In regards to his failure on his deferred adjudication community supervision

obligations, Appellant testified he could not complete his community service hours

or required Commitment to Change course because he had back surgery, and that

Appellant’s community supervision officer was aware of the situation and excused

him from community service hours, reporting in person, and the required class.

(Ct. R. vol. 3 of 4, at 9, 12-13).

       Traci Darilek, with the Gonzales County Community Supervision

Department, testified that Appellant was on deferred adjudication community

supervision six months prior to having back surgery, but did not complete any


                                           3
community service hours or the required class during that time, as required. (Ct.

R. vol. 3 of 4, at 15-17). Appellant’s file contained no indication from his previous

community service officer that Appellant was exempted from community service

hours.     (Ct. R. vol. 3 of 4, at 15, 16). Additionally, Appellant provided no

documentation from a doctor stating he could not comply with the community

service requirement because of his back surgery. Id.

         After both sides rested and closed, the trial court stated, “Mr. Novosad,

when I sentenced you, I told you I didn’t play games. I told you if you couldn’t

abide by the rules, that I had a place for you.” (Ct. R. vol. 3 of 4, at 18). The trial

court then pronounced a sentence of twenty-one months in the Texas Department

of Criminal Justice State Jail Division. (Ct. R. vol. 3 of 4, at 18-19).

                        III. SUMMARY OF THE ARGUMENT

         Appellant failed to preserve for appellate review his complaint that the trial

court violated Appellant’s due process rights because he failed to object to the trial

court’s comments at the time he was sentenced. Even if Appellant had preserved

his complaint for appellate review, the trial court’s comments did not demonstrate

it had lacked impartiality or failed to consider the full range of punishment

available. The trial court’s comments did not indicate it had predetermined a

specific punishment prior to the adjudication hearing.           Also, the trial court




                                            4
considered testimony from both sides before making any comments regarding

punishment.

                                  IV. ARGUMENT

      STATE’S RESPONSE TO APPELLANT’S SOLE POINT OF ERROR
       Appellant failed to preserve for appellate review his complaint that the
trial court’s comments at the time of his sentencing demonstrated the trial
court’s lack of impartiality and that the trial court failed to consider the full
range of punishment available. Even if Appellant had preserved his
complaint, the trial court’s comments did not show bias, or that it failed to
consider the full range of punishment available. As such, Appellant’s sole
point of error must be overruled.

      Appellant argues the trial court demonstrated a lack of impartiality and

failed to consider the full range of punishment available by stating, “I told you if

you couldn’t abide by the rules, that I had a place for you.” Appellant’s sole point

of error is not preserved for appellate review because he failed to object to the trial

court’s comments at the time he was sentenced. Appellant has presented no

evidence to show the trial court demonstrated a lack of impartiality or failed to

consider the full range of punishment available. Appellant’s point of error is

unpreserved, and meritless.

      Preservation of Error

      Generally, to preserve error for appellate review, a party must make a timely

objection, state the specific grounds for the objection, and obtain a ruling from the

trial court. Tex. R. App. 33.1; Grado v. State, 445 S.W.3d 736, 738-39 (Tex. Crim.

App. 2014); Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002,
                                          5
pet. ref’d). A request is timely if the party makes the complaint as soon as the

grounds for such complaint become apparent. Gillenwaters v. State, 205 S.W.3d

534, 538 (Tex. Crim. App. 2006). The right to be punished after consideration of

the full range of punishment is not an absolute right, instead it is waivable or

forfeitable by the parties, as evidenced by negotiated plea bargains. Grado, 445

S.W.3d at 740. As such, a party’s failure to enforce his forfeitable rights by timely

objecting to a trial court’s failure to consider the full range of punishment waives

such a complaint for appellate review. Marin v. State, 851 S.W.2d 275, 280 (Tex.

Crim. App. 1993); Teixeira, 89 S.W.3d at 192.

      Here, the trial court’s comments, “Mr. Novosad, when I sentenced you, I

told you I didn’t play games. I told you if you couldn’t abide by the rules, that I

had a place for you,” were made after testimony was presented, arguments from

both sides were made, and before sentencing was announced. (Ct. R. vol. 3 of 4, at

18, 19).

      Previously, at the initial sentencing hearing on July 9, 2013, the trial court

made similar comments, telling Appellant, “you’ve got rules you have to follow.

You violate any of these rules and play games with my probation department, I’ve

got a place for you.” (Supp. Ct. R. vol. 1 of 1, at 5).

      At both stages, Appellant had the opportunity to make an objection, but

failed to do so. (Ct. R. vol. 3 of 4, at 18) (Supp. Ct. R. vol. 1 of 1, at 5). Because


                                           6
Appellant failed to make a timely objection, he waived for appellate review his

sole point of error. Tex. R. App. 33.1; Marin, 851 S.W.2d at 279; Grado, 445

S.W.3d at 739; Teixeira, 89 S.W.3d at 192. Therefore, Appellant’s sole point of

error must be overruled.

      Lack of Impartiality and Failure to Consider the Full Range of

Punishment

      Even assuming arguendo that Appellant preserved his sole point of error for

appellate review it must still be overruled because trial court’s comments did not

show bias, or that it failed to consider the full range of punishment available.

      Due process requires a neutral and detached hearing body or officer. Gagnon

v. Scarpelli, 411 U.S. 778, 786 (1973). A court denies due process if it arbitrarily

fails to consider the full range of punishment available, or refuses to consider

evidence and imposes a predetermined sentence. Grado, 445 S.W.3d at 739;

Teixeira, 89 S.W.3d at 192.

      “Absent a clear showing of bias, a trial court’s actions will be presumed to

have been correct.” Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).

Bias is not shown where the trial court does not make any comments indicating it

has considered less than the full range of punishment. Brumit, 206 S.W.3d at 645;

Celestine v. State, No. 09-12-00548-CR, 2013 Tex. App. LEXIS 12833, at *4

(Tex. App.—Beaumont October 16, 2013, pet. refused).


                                          7
          No bias is shown where the trial court merely makes comments emphasizing

the serious nature of probation, and importance of following the rules and

conditions of probation.      Burke v. State, 930 S.W.2d 230, 235 (Tex. App.—

Houston 1996). Similarly, bias is not demonstrated merely because the trial court

comments on the severity of punishment being imposed. Brumit, 206 S.W.3d at

640, 645.

          Instead, bias is shown where a defendant was promised a predetermined

sentence, or the maximum punishment, if they failed to comply with the terms of

probation. Earley v. State, 855 S.W.3d 260, 262 (Tex. App—Corpus Christi 1993,

pet. dism’d); Cole v. State, 757 S.W.2d 864, 866 (Tex. App.—Texarkana 1988, no

pet.); Jefferson v. State, 803 S.W.2d 470, 471-72 (Tex. App.—Dallas 1991, pet.

ref’d).

          Here, the record does not support Appellant’s claim that the trial court

demonstrated bias and failed to consider the full range of punishment available.

Appellant admitted in writing to violating all of the conditions of deferred

adjudication community supervision alleged in the State’s motion. (Cl. R. vol. 1 of

1, at 52-53)(Ct. R. vol. 3 of 4, at 6). After Appellant’s admission, he was allowed

to present testimony mitigating why he was unable to successfully abide by the

conditions of his deferred adjudication community supervision. (Ct. R. vol. 3 of 4,




                                          8
at 8-14). The State presented rebuttal evidence to refute Appellant’s testimony

concerning his mitigating factors. (Ct. R. vol. 3 of 4, at 14-18).

      Only after the trial court heard all testimony and evidence at the adjudication

proceeding did the trial court make its comments, “Mr. Novosad, when I sentenced

you, I told you I didn’t play games. I told you if you couldn’t abide by the rules,

that I had a place for you.” (Ct. R. vol. 3 of 4, at 18). The trial court then

pronounced Appellant’s sentence, which was less than the maximum punishment

available to the trial court. (Ct. R. vol. 3 of 4, at 18-19).

      Previously, at the initial sentencing hearing, and upon granting Appellant

deferred adjudication community supervision, the court made only similar

comments, telling Appellant, “you’ve got rules you have to follow. You violate

any of these rules and play games with my probation department, I’ve got a place

for you.” (Supp. Ct. R. vol. 1 of 1, at 5).

      The record is devoid of any evidence the trial court failed to consider the full

range of punishment available, or had predetermined a particular number of

months or years confinement Appellant would be sentenced. At no time, either

when it placed Appellant on deferred adjudication community supervision or at the

adjudication proceeding, did the trial court promise Appellant a predetermined

sentence, or even a specific range of punishment. Rather, it is clear from the

record that the trial court was simply trying to impress upon Appellant the serious


                                              9
nature of his deferred adjudication and the importance of following the rules and

conditions of his deferred adjudication community supervision.             Burke, 930

S.W.2d at 235. Therefore, appellant’s sole point of error must be overruled.

      Furthermore, the case at hand closely mirrors the facts in Burke v. State,

where the appellate court held the trial court’s comments, “if you want to run with

the same friends and live the same life, you want to keep drinking, you’re going to

end up in the penitentiary. Do you understand that? Is there any doubt in your

mind if you don’t follow [the terms of your probation] you’re going to end up back

in jail?” did not demonstrate the trial court failed to consider all of the evidence

presented or that the trial court had predetermined a sentence. 930 S.W.2d 230,

234-35. The appellate court found the trial court’s comments merely attempted to

impress upon the appellant the seriousness of his probation. Id. at 235.

      Similarly, the appellate court found no bias shown in Brumit v. State, the

court found no bias shown where the trial court commented, “your punishment is

going to deter you, and . . . anybody else that might contemplate doing what you

did,” and pronounced sentence. 206 S.W.3d at 640, 645.

      Because the trial court’s comments do not indicate that it was biased or

failed to consider the full range of punishment before sentencing Appellant, his

sole point of error must be overruled.




                                         10
                                    V. PRAYER


      WHEREFORE, PREMISES CONSIDERED, the State submits that this case

should in all things be affirmed.

                                            Respectfully submitted,



                                            PAUL WATKINS
                                            County Attorney
                                            Gonzales, Texas




                                            /S/_Victoria W. Johnson____
                                            VICTORIA W. JOHNSON
                                            Assistant County Attorney
                                            415 Saint Louis Street
                                            Gonzales, Texas 78629
                                            (830) 672-6527
                                            (830) 672-5868 (fax)
                                             vjohnson@co.gonzales.tx.us
                                            State Bar No. 24087810
                                            (On Appeal)



                                            Attorneys for the State




                                       11
                         VI. CERTIFICATE OF SERVICE

      I, Victoria W. Johnson, Assistant County Attorney, Gonzales County, Texas,

hereby certify that a true copy of the above and foregoing document is being delivered

via e-service or facsimile to Chris Iles Attorney for defendant on this the 5th day of

February, 2015.




                                              /S/_Victoria    W.      Johnson______
                                              VICTORIA W. JOHNSON




                                         12
                        VII. CERTIFICATE OF COMPLIANCE


       I, Victoria W. Johnson, herby certify that the total number of words in this

Response is less than 15,000 words. According to the word count the included

contents1 of this document contains 2,227 words.




                                                    /S/_Victoria W. Johnson______
                                                    VICTORIA W. JOHNSON
                                                    Assistant County Attorney
                                                    415 Saint Louis Street
                                                    Gonzales, Texas 78629
                                                    (830) 672-6527
                                                    (830) 672-5868 (fax)
                                                    State Bar No. 24087810
                                                    (On Appeal)




1
  Contents Included and Excluded. In calculating the length of a document, every word and every
part of the document, including headings, footnotes, and quotations, must be counted except the
following: caption, identity of the parties and counsel, statement regarding oral argument, table
of contents, index of authorities, statement of the case, statement of issues presented, statement
of jurisdiction, statement of procedural history, signature, proof of service, certificate of
compliance and appendix. TEX. R. APP 9.4 (I)(1)
                                               13
