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


                  No. 06-17-00209-CR



        ROBERT WAYNE DUTTON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 196th District Court
                Hunt County, Texas
               Trial Court No. 29,684




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                                     MEMORANDUM OPINION
           Robert Wayne Dutton appeals the trial court’s judgment revoking his community

supervision and sentencing him to ten years’ imprisonment. Dutton claims that the trial court

violated his due process rights by refusing to consider the full range of punishment. We affirm the

trial court’s judgment.

I.         Background

           Following a 2015 jury trial, Dutton was found guilty of the offense of injury to a child.1

Punishment was assessed at ten years’ imprisonment, suspended in favor of ten years’ community

supervision. On August 25, 2017, the State filed a motion to revoke Dutton’s community

supervision, alleging Dutton had violated two conditions of his community supervision.

Specifically, the State alleged that Dutton (1) failed to perform 200 hours of community service at

the rate of ten hours per month for the months of May through December 2016 and January through

July 2017 and (2) failed to participate in and successfully complete a battering intervention

program within sixty days from the date he was released from jail. Dutton pled true to both

allegations. At the conclusion of the hearing, the trial court revoked Dutton’s community

supervision and sentenced him to the original ten-year sentence. Dutton claims the trial court

improperly refused to consider the full range of punishment.

II.        Analysis

           When regular community supervision—as opposed to deferred adjudication community

supervision—is revoked, the trial court may “proceed to dispose of the case as if there had been


1
    TEX. PENAL CODE ANN. § 22.04(e) (West Supp. 2017).

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no community supervision.” TEX. CODE CRIM. PROC. ANN. art. 42A.755(a) (1) (West 2018). The

trial court may also, if it “determines that the best interests of society and the defendant would be

served by a shorter term of confinement, reduce the term of confinement originally assessed to any

term . . . not less than the minimum prescribed for the offense of which the defendant was

convicted.” TEX. CODE CRIM. PROC. ANN. art. 42A.755(a) (2) (West 2018). Although the trial

court has “wide discretion in determining the proper punishment in a revocation hearing, due

process requires the right to a hearing before a neutral and detached hearing body.” Grado v. State,

445 S.W.3d 736, 739 (Tex. Crim. App. 2014). “A court’s arbitrary refusal to consider the entire

range of punishment is a denial of due process.” Id. Absent a clear showing of bias, however, “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).

       At the outset of the hearing, the trial court explained to Dutton that, because the jury had

sentenced him to ten years’ incarceration and recommended community supervision, “the

maximum . . . penalty” he could face “would be up to ten years.” The trial court further explained

that, if the allegations were determined to be true, then the case would proceed to a “punishment

hearing at which [the court would] decide what to do.” The trial court continued, “And again, it

would be anything from leaving you on probation, amending the terms of your probation, revoking

your probation and sentencing you to prison.”

       Thereafter, Dutton pled true to both allegations, which pleas were accepted by the trial

court. The court then proceeded to hear testimony relative to punishment, including one State’s



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witness and three defense witnesses. At the conclusion of the testimony, both sides presented

closing argument, following which the trial court announced:

       Sir, you came before the Court and entered pleas of true to Allegations Numbers 1
       and 2. The court accepts those pleas of true and I do find those allegations at this
       time to be true.

       On that basis, sir, I do revoke your probation. The jury, in its discretion, decided
       to give you ten years in prison. I don’t see any reason to interfere with that, sir.
       And so at this time, I sentence you to ten years in the Institutional Division of the
       Texas Department of Criminal Justice.

The court then added that it considered the crime heinous as it involved beating “a less-than-two-

year-old child” and explained that, for purposes of punishment, it did not consider Dutton’s failure

to participate in anger management classes, as the testimony on that subject was confusing. The

trial court concluded, “[T]he rest of it, sir, I mean, I’m sorry, you’ve earned ten years in prison.

Much, much more. I wish it could be more. I wish I could do more, but I can’t, so I sentence you

to ten years in the Institutional Division with credit for whatever time you’ve already served.”

       There is no indication in this record that the trial court arbitrarily refused to consider the

full range of punishment. The trial court explained the punishment range to Dutton when the

hearing commenced, indicating that Dutton could remain on probation, the terms of probation

could be modified, or Dutton could be sent to prison for a maximum of ten years. Only after

hearing all of the testimony did the trial court, in accordance with its discretion, impose the ten-

year sentence originally imposed by the jury. See TEX. CODE CRIM. PROC. ANN. art. 42A.755(a)

(1). The court explained that it discounted certain testimony offered by the State because it was

“confusing” and made it clear that the decision was based on the heinous nature of the crime of

which Dutton had been convicted. Finally, it is apparent from the record that the trial court found
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no basis to conclude that the best interests of society and the defendant would be served by a

shorter term of confinement than that originally imposed.

       Because the record does not show that the trial court arbitrarily refused to consider the full

range of punishment, we overrule this point of error.

II.    Conclusion

       We affirm the trial court’s judgment.




                                               Ralph K. Burgess
                                               Justice

Date Submitted:       June 28, 2018
Date Decided:         July 18, 2018

Do Not Publish




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