Reversed and Remanded and Majority and Dissenting Opinions filed October
11, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00663-CR

                 AUGUSTIN GABRIEL CABRERA, Appellant
                                          V.

                       THE STATE OF TEXAS, Appellee

           On Appeal from the County Criminal Court at Law No. 2
                           Harris County, Texas
                       Trial Court Cause No. 1985771

                      MAJORITY                 OPINION


      Appellant Augustin Gabriel Cabrera appeals his conviction for burglary of a
vehicle. In a single issue appellant contends the trial court violated his right to due
process when it failed to consider the full range of punishment. We reverse and
remand for a new punishment hearing.
                     I. FACTUAL AND PROCEDURAL BACKGROUND

       A. Pretrial

       Prior to voir dire, the trial court admonished appellant as to the charges
against him and the possible range of punishment. The trial court informed
appellant that he was charged with the misdemeanor offense of burglary of a
vehicle, which carried a potential sentence from one day up to one year in the
county jail.1 The information alleged that appellant had previously been convicted
of a misdemeanor, which the trial court explained, if found true, would alter the
range of punishment. In that case, the minimum punishment that could be assessed
would be 90 days in the county jail. Tex. Penal Code § 12.43(a)(2) (West 2015).

       Appellant stated he understood the range of punishment and informed the
trial court that the State recommended a 30-day sentence in exchange for
appellant’s agreement to plead guilty. The trial court responded, “I think that’s
what I told [defense counsel] that I would give you if you wanted to plea without a
recommendation, but the State is recommending how many days in jail?” The State
responded that it recommended 180 days in jail, not 30. The trial court responded:

       THE COURT: The State is recommending today 180 days in jail, and
       I’ve told [defense counsel] that if the State [sic] wanted to waive its
       right to a jury trial, you wanted to come to me for punishment, that I
       would be willing to consider assessing your punishment at 30 days in
       jail. Do you understand that?

       THE DEFENDANT: Yes, sir.

       The trial court then asked the State to summarize what it expected the
evidence to show “if [appellant] wants to exercise his right to have a jury trial[.]”
       1
         The offense with which appellant was charged is a Class A misdemeanor. Tex. Penal
Code § 30.04(d). The range of punishment for a Class A Misdemeanor is a fine not to exceed
$4,000, confinement in jail for a term not to exceed one year, or both a fine and confinement.
Tex. Penal Code § 12.21 (West 2015).

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The State recited that it intended to call the complainant, who would testify that his
car had been burglarized and that items valued at approximately $300 were stolen
from the vehicle. The State further expected to show that DNA matching appellant
had been found inside the burglarized vehicle. If appellant were convicted, then the
State further expected to show that appellant had been previously convicted of
assault of a family member, possession of a weapon as a felon, and organized
criminal activity. At the conclusion of the State’s summary, the trial court asked
appellant:

      [D]o you see how a jury could find you guilty of the offense of
      burglary of a motor vehicle based upon the DNA comparison from the
      blood found in the car to your DNA, and if they find you guilty once
      they hear about all those prior convictions you have for various
      offenses they may just decide to give you 180 days in jail?

      The trial court again asked appellant what he wanted to do. Appellant stated
he wanted to exercise his right to a jury trial. The following conversation occurred
between the trial court and appellant:

      THE COURT: Mr. Cabrera, you want the jury or the Court to assess
      punishment?
      THE DEFENDANT: The Court.
      THE COURT: All right. Mr. Cabrera, I hope you’re not under any
      illusion you are going to get 30 days after trial, are you?
      THE DEFENDANT: No, sir.

      B. Guilt-Innocence Phase

      Evidence commenced following voir dire. The complainant testified that he
left his truck overnight at work. When he arrived the next morning the window
glass had been broken and he could see blood inside the truck. The complainant’s
tools, worth several hundred dollars, were missing from the truck. As part of the
investigation Harris County Sheriff’s deputies took samples of the blood found in

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the truck and compared the DNA found in those samples with known samples from
appellant. A forensic scientist testified that the DNA results from the driver’s seat
swab were consistent with the DNA results obtained from appellant. Following
argument of counsel the jury found appellant guilty of burglary of a vehicle.
Because appellant chose to have the trial court assess punishment, the jury was
excused following its verdict.

      C. Punishment Phase

      The entire punishment phase consisted of less than one page in the trial
transcript. The State did not attempt to prove up appellant’s prior conviction as
alleged in the information, or provide evidence of any other prior conviction. In
fact, the State presented no evidence or arguments during the punishment phase at
all. Appellant did not enter a plea of “true” to any prior conviction. Therefore, no
enhanced range of punishment was applicable. The trial court assessed appellant’s
punishment at 180 days in the Harris County Jail.

                              II. ISSUE AND ANALYSIS

      In his sole issue appellant contends the trial court violated his due process
rights when it failed to consider the full range of punishment.

      A. Applicable Law and Standard of Review

      It is a denial of due process for a trial court to arbitrarily refuse to consider
the entire range of punishment for an offense or to refuse to consider the evidence
and impose a predetermined punishment. McClenan v. State, 661 S.W.2d 108, 110
(Tex. Crim. App. 1983) overruled on other grounds, DeLeon v. Aguilar, 127
S.W.3d 1, 5–6 (Tex. Crim. App. 2004); Jefferson v. State, 803 S.W.2d 470, 471
(Tex. App.—Dallas 1991, pet. ref’d) (“It is axiomatic that it is a denial of due
process for the court to arbitrarily refuse to consider the entire range of punishment

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for an offense or to refuse to consider the evidence and impose a predetermined
punishment.”). In applying our state constitutional guarantee of due course of law,
we follow contemporary federal due process interpretations. U.S. Gov’t v. Marks,
949 S.W.2d 320, 326 (Tex. 1997); Fleming v. State, 376 S.W.3d 854, 856 (Tex.
App.—Fort Worth 2012), aff’d, 455 S.W.3d 577 (Tex. Crim. App. 2014), cert.
denied, 135 S. Ct. 1159 (2015). We presume the trial judge was a neutral and
detached officer and considered the full range of punishment unless there is a clear
showing to the contrary. State v. Hart, 342 S.W.3d 659, 673 (Tex. App.—Houston
[14th Dist.] 2011, pet. ref’d); Earley v. State, 855 S.W.2d 260, 262 (Tex. App.—
Corpus Christi 1993, pet. dism’d); see Brumit v. State, 206 S.W.3d 639, 645 (Tex.
Crim. App. 2006).

      B. Preservation of Error

      Appellant did not object to the trial court’s comment concerning the
potential sentence. Whether appellant is required to make a contemporaneous
objection to preserve error turns on the nature of the right allegedly infringed.
Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014). The Court of
Criminal Appeals of Texas has separated defendants’ rights into three categories:
(1) absolute requirements and prohibitions, which cannot lawfully be avoided even
with partisan consent; (2) waivable-only rights, which must be implemented unless
expressly waived; and (3) forfeitable rights, which are forfeited unless requested
by the litigant. Id.; Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993),
overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App.
1997).

      The right to be sentenced after consideration of the full range of punishment
is a category two waivable-only right. Grado, 445 S.W.3d at 743. Therefore,
appellant’s complaint that the trial court failed to consider the full range of

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punishment was not forfeited by his failure to object at trial. See id. We therefore
consider the merits of appellant’s complaint. See id.

      C. Did the trial court violate appellant’s due process rights by failing to
consider the full range of punishment?
      Appellant was convicted of burglary of a vehicle for which the punishment
range is confinement in jail for a term not to exceed one year and/or a fine not to
exceed $4,000. See Tex. Penal Code Ann. §§ 12.21 and 30.04. The information
contained an enhancement paragraph alleging a prior misdemeanor conviction for
assault of a family member, which, if proved, would have increased appellant’s
minimum sentence to 90 days in jail. See Tex. Penal Code Ann. § 12.43(a)(2). The
State did not present any evidence at punishment to prove the enhancement
paragraph.

      The record reflects that prior to jury selection, the trial court told appellant
that if he chose to exercise his right to a jury trial he should not be “under any
illusion” that he would receive a 30-day sentence. The trial court’s statement
clearly indicates that the court, without any evidence before it, had arbitrarily
dismissed a portion of the permissible range of punishment. See Ex parte Brown,
158 S.W.3d 449, 454–57 (Tex. Crim. App. 2005) (due process violation where trial
court promised 20-year punishment to applicant when deferring guilt finding at
plea and, later, assessed promised punishment after applicant pled true to violation
allegations at adjudication hearing); Earley, 855 S.W.2d at 262–63 (trial court
prejudged punishment before hearing any evidence); Jefferson, 803 S.W.2d at
471–72 (due process violation where trial court imposed predetermined
punishment after promising defendant at deferred-adjudication plea that he would
receive maximum sentence if he violated probation).

      The State argues that appellant failed to rebut the presumption that the trial

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court was neutral and detached because appellant failed to show the trial court’s
comment was a promise to impose, or refuse to consider, a particular sentence
rather than a statement conditioned on the State proving its proferred evidence. The
State argues that appellant’s argument takes the trial court’s comment out of
context, ignoring “1) the fact that appellant’s information contained an
enhancement paragraph which, if proven true, would have made the minimum
sentence 90 days, 2) the State’s proffer of anticipated guilt/innocence evidence, 3)
the State’s proffer of anticipated punishment evidence, including appellant’s prior
convictions, and 4) appellant’s admission, without objection, that he was currently
serving a two-year prison sentence for ‘unlawfully carry[ing] of a firearm,’ having
been previously convicted of a felony, all of which were discussed before the trial
court’s comment.”

      We address the State’s arguments in turn. The state asserts that the 30-day
sentence offered by the trial court was outside the statutory range of punishment.
This assumes that the enhancement paragraph was true. Neither we nor the trial
court can make such an assumption. At the time the trial court made the 30-day
offer, no evidence of any prior convictions had been offered. There was never any
evidence of final convictions offered. The judgment states “N/A” with regard to
enhancement paragraphs. Furthermore, even if the State had presented evidence of
the enhancement paragraph, the trial court as fact finder could have found the
enhancement paragraph “not true.” At the time the trial court made the 30-day
offer, appellant faced the full range of punishment with no statutory minimums.
There was no qualification such as “if the enhancement paragraph is found true
you will not get 30 days.” The trial court clearly indicated it would not consider the
full range of punishment available under the statute.

      With regard to the State’s proffer of anticipated guilt/innocence and

                                          7
punishment evidence, the State relies on authority that holds a trial court’s
comments relating to punishment made after evidence is presented have been
deemed to have failed in rebutting the presumption that the sentencing judge was
neutral and detached. See, e.g. Brumit, 206 S.W.3d at 645–46. In this case,
however, the trial court’s comment was made prior to any evidence being
presented. The State’s recitation of the evidence it expected to introduce is not
evidence, but is in the nature of an opening statement made prior to the
introduction of any evidence. See generally Lewis v. State, 686 S.W.2d 243, 244
(Tex. App.—Houston [14th Dist.] 1985), aff’d 711 S.W.2d 41 (Tex. Crim. App.
1986) (statements of counsel are not evidence). Similarly, appellant’s explanation
that he was serving a two-year prison sentence having been convicted of
unlawfully carrying a weapon was not evidence before the trial court at the time.

       The State also analogizes the trial court’s statement to one made by a
potential juror who states he could not consider the minimum punishment in a
proper case. The State relies on McClenan, 661 S.W.2d at 109–11, in which the
Court of Criminal Appeals held that a trial court did not show bias because its
statement was conditioned on whether “certain facts were proved.” In that case, the
trial court informed the defendant’s counsel that if certain facts were proved and
other mitigating facts not proved, the court would not grant probation. Id. at 109.
The trial court’s comment in this case is distinguishable from that in McClenan.
The trial court’s comment that appellant would not “get 30 days after trial” was not
conditioned on proof of specific facts, but on whether appellant chose to exercise
his right to a jury trial.

       The State further argues that the record does not support appellant’s claim
because the trial court expressly stated a willingness to consider a 30-day sentence
and ultimately did not assess the maximum punishment. The State refers to the trial

                                         8
court’s statement that if appellant agreed to waive a jury trial the court would
consider a 30-day sentence. In reviewing the entire record, it appears this statement
by the trial court was conditioned on appellant pleading guilty without a jury trial.
After appellant decided to exercise his right to a jury trial on guilt/innocence with
punishment to the court, the trial court stated it hoped appellant was “not under any
illusion you are going to get 30 days after trial[.]” The fact that the trial court did
not assess the maximum punishment after conviction does not mitigate the
arbitrary refusal to consider the entire range of punishment. See Sanchez v. State,
989 S.W.2d 409, 410–12 (Tex. App.—San Antonio 1999, no pet.) (considering
context of trial court’s remarks when determining whether trial court arbitrarily
refused to consider entire range of punishment).

      Our dissenting colleague tells us that we must consider the context of the
trial court’s comments. Indeed, that context leads us to our conclusion. The trial
judge made the comment in question immediately after appellant asserted his
Constitutional right to a jury trial. This is not a case in which the trial court’s
comments are taken out of context. See Sanchez, 989 S.W. 2d 409. Nor, is this a
case in which the trial court’s comments about sentencing are conditioned upon the
evidence anticipated. In fact, the evidence presented at guilt/innocence was
essentially what the State said it would be when the court offered the 30 days. The
anticipated punishment evidence was never presented. Arguably due to the lack of
punishment evidence at trial, the case was even less aggravated than anticipated
when the court made the 30-day offer. This is a case in which the quid pro quo for
considering the lower range of punishment as a sentence was the waiver of a jury
trial. More specifically, the trial court offered to sentence the defendant to 1/3 of
the time recommended by the State if the defendant would plead guilty and submit
punishment to the court. When the defendant refused, and exercised his right to a


                                          9
jury trial, the trial court assured the defendant that the 30-day offer would not again
be available “if appellant chose to go to trial.” A trial court may refuse to consider
the entire range of punishment based upon many non-arbitrary factors. (e.g.
Jaenicke v. State, 109 S.W.3d 793, 797 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref’d) (maintain consistency with jury sentencing in less heinous cases). However,
for the trial court to refuse to consider sentencing at 30 days because the defendant
has chosen to go to trial instead of plead guilty is the definition of arbitrary.

      Our dissenting colleague notes that the trial judge did not promise to assess a
specific punishment.     This is certainly true.     To the contrary, the trial court
promised not to assess a specific punishment that was within the statutory range of
punishment.     The trial court’s statement clearly demonstrates that the court,
without any evidence before it, had arbitrarily dismissed a portion of the
permissible range of punishment. See Ex parte Brown, 158 S.W.3d at 456–57 (due
process violation where trial court “promised to impose the maximum punishment
if [the] . . . probationer fail[ed] to abide by the terms of probation and then
carr[ied] through on that promise without ‘actually consider[ing] the evidence
presented at the revocation hearing’” (emphasis in orig.)); Earley, 855 S.W.2d at
262–63 (due process violation where trial court prejudged maximum punishment
before hearing any evidence); Jefferson, 803 S.W.2d at 471–72 (due process
violation where trial court imposed predetermined punishment after promising
defendant at deferred-adjudication plea that he would receive maximum sentence if
he violated probation); Norton v. State, 755 S.W.2d 522, 523–24 (Tex. App.—
Houston [1st Dist.] 1988, pet. ref’d) (due process violation where trial court stated
prior to trial that jail time would be assessed even upon a jury verdict of
probation).



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                                 III. CONCLUSION

      The trial court’s statement, “I hope you’re not under any illusion you are
going to get 30 days after trial, are you?” clearly indicates an arbitrary refusal to
consider the entire range of punishment if appellant chose to go to trial, and
constituted a denial of due process. We sustain appellant’s sole issue. Accordingly,
the punishment portion of the trial court’s judgment is reversed, and this case is
remanded to the trial court for a new punishment hearing.




                                       /s/    Marc W. Brown
                                              Justice



Panel consists of Chief Justice Frost and Justices McCally and Brown (Frost, CJ.,
dissenting).
Publish — Tex. R. App. P. 47.2(b).




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