                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                               _________________

                               NO. 09-13-00375-CR
                               _________________

                   TRIVON NASHON JOUBERT, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                   On Appeal from the 252nd District Court
                          Jefferson County, Texas
                         Trial Cause No. 12-13399
__________________________________________________________________

                          MEMORANDUM OPINION

      Pursuant to a plea bargain agreement, appellant Trivon Nashon Joubert

entered a plea of guilty to the offense of aggravated robbery, a first-degree felony.

See Tex. Penal Code Ann. § 29.03(a)(2), (b) (West 2011). The trial court found

the evidence sufficient to find Joubert guilty, but deferred further proceedings,

placed Joubert on community supervision for seven years, and ordered Joubert to

pay a fine of $1,000 and restitution in the amount of $69.50. Thereafter, the State

filed a motion to revoke Joubert’s unadjudicated community supervision. The State

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alleged that Joubert violated the conditions of his community supervision by

committing the offense of burglary of a habitation. During the revocation hearing,

Joubert pleaded “true” to this allegation. The trial court found that Joubert violated

the conditions of his community supervision, revoked his community supervision,

found him guilty of aggravated robbery, and sentenced him to forty-five years in

prison.

                    Failure to Consider Full Range of Punishment

         In his first point of error, Joubert argues that the trial court violated his right

to due process by arbitrarily refusing to consider the entire range of punishment for

his offense. Joubert contends that the trial court was not a fair and impartial

tribunal because the trial judge “berated” him during the revocation hearing and

sentenced him to the “maximum term” without considering a lesser sentence and

without considering mitigating circumstances presented by Joubert. The State

argues that Joubert has not clearly demonstrated that the trial court was biased or

that it arbitrarily failed to consider the full punishment range. We agree with the

State.

         The Due Process Clause of the Fourteenth Amendment provides that no

State may “deprive any person of life, liberty, or property, without due process of

law[.]” See U.S. CONST. amend. XIV, § 1. Similarly, the Texas Constitution


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provides that “[n]o citizen of this State shall be deprived of life, liberty, property,

privileges or immunities . . . except by the due course of the law of the land.” Tex.

Const. art. I, § 19. “The touchstone of due process is fundamental fairness.” Euler

v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007). Accordingly, “[t]he

Constitutional mandate of 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) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786-87 (1973)). A trial court

denies a defendant due process by arbitrarily refusing to consider the entire range

of punishment for an offense. Ex parte Brown, 158 S.W.3d 449, 454, 456 (Tex.

Crim. App. 2005). Likewise, a trial court denies a defendant due process when it

refuses to consider mitigating evidence and imposes a predetermined punishment.

Buerger, 60 S.W.3d at 364. However, in the absence of a clear showing to the

contrary, a reviewing court must presume that the trial court was neutral and

detached in sentencing the defendant and considered the full range of punishment.

See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Jaenicke v.

State, 109 S.W.3d 793, 796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (op.

on reh’g).




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      In order to preserve appellate review of a complaint that the trial court

arbitrarily refused to consider the entire range of punishment, the defendant must

make a timely objection at the trial court level. See Tex. R. App. P. 33.1; Teixeira

v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref’d). “This rule

ensures that trial courts are provided an opportunity to correct their own mistakes

at the most convenient and appropriate time—when the mistakes are alleged to

have been made.” Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002). In

the present case, the record does not reflect that Joubert objected to the trial court’s

alleged failure to consider the full range of punishment at the trial court level.

Nevertheless, Joubert argues that under the Texas Court of Criminal Appeals’s

decision in Ex parte Brown, he was not required to make a contemporaneous

objection because the evidence that the court failed to consider the full range of

punishment was ambiguous. See 158 S.W.3d at 453 & n.3. Even if we were to

assume that Joubert’s contention is correct and that he was excused from the long-

standing rule that errors in sentencing are waived by the failure to object, we

conclude that the record does not support Joubert’s argument that the trial court

arbitrarily refused to consider the entire range of punishment for his offense.

      The punishment range for aggravated robbery, a first-degree felony, is five

to ninety-nine years or life and a fine of up to $10,000. See Tex. Penal Code Ann.


                                           4
§§ 12.32, 29.03(b) (West 2011). The trial court’s forty-five year sentence clearly

falls within the middle of this range and does not impose the “maximum term,” as

Joubert contends in his brief. See id. § 12.32. Further, the record reflects that the

trial court heard arguments from both the prosecutor and defense counsel and

reviewed the evidence before deciding to revoke Joubert’s community supervision

and assessing punishment. Specifically, the record reflects that before making his

decision, the trial court asked for defense counsel’s comments. Joubert’s attorney

advised the trial court of several mitigating circumstances, including Joubert’s

attempts to gain employment while on probation, his completion of a portion of his

community service hours, his lack of criminal convictions, his successful

completion of juvenile probation, his age, and the fact that he had dependents to

support. The trial court also reviewed a letter from Joubert’s mother requesting

leniency and provided Joubert with an opportunity to speak on his own behalf.

The record, however, also reflects that the trial court heard argument from the State

and reviewed evidence of several aggravating factors, including the violent nature

of Joubert’s underlying aggravated robbery offense and his subsequent failure to

refrain from criminal behavior, despite being placed on “zero tolerance”

community supervision. During the revocation hearing, the trial court reviewed a

copy of the presentence investigation report for Joubert’s underlying aggravated


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robbery offense. The report indicated that Joubert and another individual robbed a

Dunkin Donuts restaurant at gunpoint, that the robbery was Joubert’s idea, that the

victim felt her life was in danger, and that Joubert stated afterward that he had no

remorse for committing the robbery. During the revocation hearing, the trial court

questioned Joubert regarding his remorse following the aggravated robbery

offense, and Joubert again admitted that he had felt no remorse when he committed

the offense. Further, the record reflects that while on probation, Joubert committed

the additional offense of burglary of a habitation, a second-degree felony. Joubert

admitted at the revocation hearing that one of the items he had stolen during the

burglary was a firearm. After receiving argument from both sides regarding the

mitigating and aggravating factors, the trial judge inquired of the parties, “So,

what’s fair? I got anywhere from five to 99 years or life. What’s the right thing to

do with a person that demonstrates that he’s going to continue to do whatever he

wants to do and put people in harm’s way?”

      Nothing in the record suggests that the trial judge refused to consider the

mitigating circumstances presented by Joubert’s attorney, imposed a predetermined

punishment, or arbitrarily refused to consider the entire range of punishment in

assessing Joubert’s sentence.    Instead, the record reflects that the trial court

listened to the arguments presented by both sides, reviewed the evidence in the


                                         6
record before it, and determined that forty-five years was an appropriate

punishment. Further, the judge’s comments during the revocation hearing

demonstrate that he was aware of the range of punishment for aggravated robbery,

and there is nothing in the record that rebuts the presumption that he considered

this range in assessing Joubert’s punishment. We conclude, therefore, that Joubert

has not met his burden of demonstrating that the trial court arbitrarily failed to

consider the full range of punishment.

      We also find nothing in the record to establish that the trial judge was biased

or prejudiced or otherwise failed to remain detached and neutral during the

revocation hearing. “[T]he terms ‘bias’ and ‘prejudice’ do not encompass all

unfavorable rulings towards an individual, or [his] case[.]” Abdygapparova v.

State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). Rather,

such terms “must ‘connote a favorable or unfavorable disposition or opinion that is

somehow wrongful or inappropriate, either because it is undeserved, or because it

rests upon knowledge that the subject ought not to possess . . . , or because it is

excessive in degree.’” Id. (quoting Liteky v. United States, 510 U.S. 540, 550

(1994)). “Judicial remarks during the course of a trial that are critical or

disapproving of, or even hostile to counsel, the parties, or their cases, ordinarily do

not support a bias or partiality challenge.” Dockstader v. State, 233 S.W.3d 98,


                                          7
108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Further, “expressions of

impatience, dissatisfaction, annoyance, and even anger” do not establish bias or

partiality. Liteky, 510 U.S. at 555-56. Rather, the defendant must show “a ‘deep-

seated favoritism or antagonism that would make fair judgment impossible.’”

Abdygapparova, 243 S.W.3d at 198 (quoting Liteky, 510 U.S. at 555).

      Joubert argues that the trial court’s failure to remain detached and neutral is

evidenced by the fact that the trial judge “berated” him during the revocation

hearing.   Joubert, however, fails to identify any specific statement, action, or

inaction by the trial judge that he contends constitutes a failure to remain impartial

or a deep-seated favoritism or antagonism that would make fair judgment

impossible. After conducting an independent review of the record, we do not find

anything in the record indicating that the trial court failed to remain detached and

neutral during the revocation hearing. While the trial judge’s comments to Joubert

during the revocation hearing reflect the court’s concern over the seriousness of

Joubert’s offenses, his lack of remorse for his criminal behavior, and his refusal to

refrain from engaging in criminal conduct while on community supervision, these

comments are insufficient to establish that the trial court failed to consider the law

and the relevant facts in a detached and neutral manner. We perceive no denial of




                                          8
due process under the state or federal constitution. Accordingly, we overrule

Joubert’s first point of error.

                           Cruel and Unusual Punishment

         As part of his first point of error, Joubert also argues that the trial court

punished him for being a drug addict, which, he contends, “constitutes ‘cruel and

unusual punishment’ in violation of the Eighth and Fourteenth Amendments to the

United States Constitution.” Joubert’s argument concerning this point consists of

three sentences in his brief. Joubert does not cite to any portion of the record in

support of this argument, and our review of the record reveals that Joubert’s drug

use, if any, or his purported status as a “drug addict” was not raised by anyone at

any point during the revocation hearing. Accordingly, we overrule this point of

error.

                                  Assessment of Fine

         In his second point of error, Joubert contends the trial court erred by

including a $500 fine in its written judgment when the court did not orally

pronounce the fine at the time of sentencing during the revocation hearing. It is

well-established that the trial court must orally pronounce a defendant’s sentence

in the defendant’s presence. Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (West

Supp. 2013); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). The


                                           9
judgment is merely the written declaration and embodiment of the trial court’s oral

pronouncement. See Taylor, 131 S.W.3d at 500. When there is a conflict between

the oral pronouncement of the sentence and the written judgment, the oral

pronouncement controls. Id. A fine is a form of punishment; therefore, it cannot

be included in the written judgment of conviction unless it was included in the oral

pronouncement of sentence. Id. at 500–02 (concluding that fine should be deleted

from written judgment because it was not orally pronounced when deferred

adjudication was revoked).

      After the trial court revoked Joubert’s community supervision and

adjudicated him guilty of aggravated robbery, the court orally pronounced

Joubert’s sentence at forty-five years’ imprisonment. The transcript from the

revocation hearing does not reflect that the trial court orally pronounced a fine.

Accordingly, we must examine the written judgment adjudicating guilt to

determine whether it impermissibly assesses a fine against Joubert. On the first

page of the judgment, the space underneath the heading “Fine” is left blank. On

the second page, the judgment orders “Defendant punished as indicated on page 1”

and orders “Defendant to pay all fines . . . as indicated on page 1.” As noted, page

1 of the judgment does not assess a fine.       We conclude, therefore, that the




                                        10
judgment does not assess a fine against Joubert. We overrule Joubert’s second

point of error.

      AFFIRMED.


                                    _____________________________
                                        CHARLES KREGER
                                              Justice


Submitted on April 9, 2014
Opinion Delivered June 25, 2014
Do not publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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