Opinion issued December 22, 2015




                                   In The

                           Court of Appeals
                                   For The

                       First District of Texas
                        ————————————
                           NO. 01-14-00861-CR
                        ———————————
                 SEGISMUNDO GONZALEZ, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee



                 On Appeal from the 184th District Court
                         Harris County, Texas
                     Trial Court Case No. 1388920



                     MEMORANDUM OPINION

     Appellant Segismundo Gonzalez pleaded guilty to the first-degree felony
offense of aggregate theft of more than $200,000.1 Following completion of a

presentence investigation (PSI) report and a hearing, the trial court sentenced

appellant to sixteen years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice. Appellant contends that the trial court violated his

rights to due process and due course of law under the United States and Texas

Constitutions by (1) relying on evidence that was not admitted at the hearing, (2)

refusing to consider the entire range of punishment, and (3) not acting as a neutral

and detached hearing officer. We reform the trial court’s judgment and, as reformed,

we affirm.

                                   Background

      Appellant was indicted for aggregate theft of more than $200,000 for

embezzling nearly one million dollars from his employer over a period of

approximately six years.         Appellant subsequently filed a motion for

probation/community supervision with the court. On July 25, 2014, appellant

entered into a plea of guilty and a waiver of constitutional rights, an agreement to

stipulate, and a judicial confession. Following the completion of a PSI report, the

trial court held a hearing on September 22, 2014.




1
      See TEX. PENAL CODE ANN. § 31.09 (West 2011), § 31.03(a), (e)(7) (West Supp.
      2015).
                                         2
      Prior to announcing the sentence at the conclusion of the punishment hearing,

the trial court made the following comment:

             Just to let [the complainant] know, if I were to give him
      probation, I don’t think you’re ever going to see a dime of restitution.
      We do not have debtor’s prison in this country. I cannot revoke his
      probation for failure to pay unless the State can prove that he had the
      ability to pay, and my experience has been people who are paying large
      amounts of restitution just won’t work and pay it. They prefer not to
      work, and it’s very difficult to prove that they were not trying to find a
      job. And I wouldn’t look to see that house sold anytime soon.

Thereafter, the trial court sentenced appellant to sixteen years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice. This appeal

followed.

                                      Discussion

      In his sole point of error, appellant contends that the trial court violated his

rights to due process and due course of law under the United States and Texas

Constitutions. See U.S. CONST. amend. XIV, § 1 (providing that no State shall

“deprive any person of life, liberty, or property, without due process of law . . . .”);

TEX. CONST. art. I, § 19 (providing that “[n]o citizen of this State shall be deprived

of life, liberty, property, privileges or immunities, or in any manner disfranchised,

except by the due course of the law of the land.”). Specifically, he argues that the

trial court’s comment at the conclusion of the hearing, i.e., that appellant, if granted

community supervision, would likely not comply with the condition requiring that

he pay restitution to the complainant, demonstrates that it did not act as a neutral and
                                           3
detached hearing officer but, instead, acted arbitrarily in refusing to consider the

entire range of punishment.

      We initially address the State’s argument that appellant failed to preserve his

issue for appeal. Generally, an issue regarding improper judicial comments must be

preserved at trial. Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013).

However, a party may complain about improper judicial comments even if the error

was not preserved in the trial court if an absolute requirement, prohibition, or

fundamental right was violated. See Ex parte Marascio, ___ S.W.3d ___, 2015 WL

5853202, at *2 (Tex. Crim. App. 2015).

      Due process “requires a neutral and detached judicial officer who will

consider the full range of punishment and mitigating evidence.” Buerger v. State,

60 S.W.3d 358, 363–64 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). A trial

court’s arbitrary refusal to consider the entire range of punishment in a particular

case violates due process and is classified as a non-forfeitable, waiver-only right that

is not subject to procedural default. See Grado v. State, 445 S.W.3d 736, 737 (Tex.

Crim. App. 2014). Thus, a complaint that the trial court failed to consider the full

range of punishment may be raised for the first time on appeal. See id. at 741–43.

      Absent a clear showing of bias, we presume the trial court’s actions were

correct. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). Bias is not

shown when (1) the trial court hears evidence before assessing punishment, (2) the

                                           4
record contains explicit evidence that the trial court considered the full range of

punishment, and (3) the trial court did not make any comments indicating it

considered less than the full punishment range. See id. at 645.

      Here, the trial court heard testimony from four witnesses, including three

defense witnesses, and had before it the PSI report as well as several exhibits

admitted at the hearing. The trial court made the complained-of comments at the

conclusion of the hearing. Therefore, this is not a situation in which the trial court

imposed punishment without considering any evidence relating to the offense or

refused to consider mitigating evidence. See Youkers v. State, 400 S.W.3d 200, 209

(Tex. App.—Dallas 2013, pet. ref’d) (noting, in holding that trial court’s comments

did not reflect that court failed to consider full range of punishment, that challenged

comments occurred “only after hearing all of the evidence”). The record also

contains explicit evidence that the trial court considered the full range of punishment

in this case—the “Waiver of Constitutional Rights, Agreement to Stipulate, and

Judicial Confession” signed by appellant, his counsel, and the trial court judge,

include a note stating “[Defendant] advised at length the court will consider full

range of sentencing.” Finally, contrary to appellant’s argument, the trial court’s

comments demonstrate that it did consider the full range of punishment because it

imposed sixteen years’ confinement, which is at the lower end of the five-to-ninety-

nine year range for a first-degree felony and less than the twenty-five year sentence

                                          5
sought by the State. See, e.g., Novosad v. State, No. 13-14-00314-CR, 2015 WL

4610233, at *2 (Tex. App.—Corpus Christi July 2, 2015, no pet.) (mem. op., not

designated for publication) (noting record indicated that trial court considered full

range of punishment where it imposed twenty-one month confinement which was

less than two-year maximum punishment).

      Appellant also argues that the trial court’s comments reflect that it denied his

motion for community supervision based solely on evidence outside of the record.

Specifically, he contends that the trial court’s decision was based on its conclusion

that because other defendants who had received community supervision had failed

to pay restitution, appellant would likewise not pay. To the contrary, the trial court’s

comments, which were directed to the complainant, reflect a permissible reference

to its experience regarding the suitability of community supervision. See Torres v.

State, 92 S.W.3d 911, 921 n.5 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)

(noting judges must routinely look to personal experience when making subjective

judgment regarding punishment); see also Ferm v. State, No. 14-08-00287-CR, 2009

WL 2176570, at *7 (Tex. App.—Houston [14th Dist.] July 23, 2009) (mem. op., not

designated for publication) (concluding “trial judge’s comments reflect a

permissible reference to his experience regarding the suitability for probation of

defendants who, like appellant, request probation yet refuse to admit their guilt.”).




                                           6
      We conclude that the record does not clearly indicate bias or a denial of

appellant’s due process rights, and that appellant has not overcome the presumption

that the trial court acted as a detached and neutral officer. Accordingly, we overrule

appellant’s point of error.

                              Pronouncement of Sentence

      The judgment and sentence reflect that appellant was sentenced to seventeen

years’ confinement in the Institutional Division of the Texas Department of Criminal

Justice. However, the trial court orally sentenced appellant to confinement for

sixteen years. When there is a conflict between the oral pronouncement of sentence

and the sentence in the written judgment, the oral pronouncement controls. Taylor

v. State, 131 S.W.3d 497, 501 (Tex. Crim. App. 2004). Therefore, we reform the

judgment and sentence to reflect that appellant was sentenced to sixteen years’

confinement in the Institutional Division of the Texas Department of Criminal

Justice.

                                     Conclusion

      We reform the trial court’s judgment to reflect that appellant was sentenced

to sixteen years’ confinement in the Institutional Division of the Texas Department

of Criminal Justice. We affirm the judgment of the trial court, as reformed.




                                          7
                                               Russell Lloyd
                                               Justice

Panel consists of Justices Higley, Huddle, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           8
