                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00263-CR


SCOTT ALAN AKIN                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                  STATE


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      FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

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                       MEMORANDUM OPINION1
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                                  I. Introduction

     Appellant Scott Alan Akin appeals the trial court’s order revoking his

community supervision. We affirm.




     1
      See Tex. R. App. P. 47.4.
                     II. Factual and Procedural Background

      On January 29, 2008, Akin, appearing pro se, was found guilty of assault—

family violence.    He received a $2000 fine and a sentence of 365 days’

confinement that was probated to twenty-four months’ community supervision.

Akin then filed a pro se notice of appeal, and this court abated the case for an

indigency determination. The trial court found Akin ―not indigent.‖ This court

affirmed Akin’s conviction. See Akin v. State, No. 02-08-00062-CR, 2009 WL

806902, at *1–2 (Tex. App.—Fort Worth Mar. 26, 2009, no pet.) (mem. op., not

designated for publication). We noted in that opinion that Akin did not appeal the

trial court’s indigency determination. Id. at *1 n.4.

      In early December 2009, after Akin fell behind on several of his community

supervision obligations, and, at Denton County Probation Officer Lance

Washburn’s request, the trial court held a show cause hearing to impress upon

Akin the importance of adhering to the terms of his community supervision and to

offer Akin an option to avoid revocation.2

      On December 18, 2009, the State filed a motion to revoke Akin’s

community supervision.      On January 11, 2010, Akin signed the trial court’s

admonishments regarding his right to counsel. Akin did not file an affidavit of

indigency. On February 2, 2010, Akin’s wife sent the trial court a letter generally


      2
        The record does not contain a transcript of the hearing. Washburn
testified about the outcome of the show cause hearing at the subsequent
revocation hearing.


                                          2
describing the Akin family’s inability to afford an attorney, emphasizing the

family’s efforts toward unity, and stating her opposition to Akin’s prosecution.

      Between February 8, 2010, and May 21, 2010, the trial court held four pro

se admonishment hearings.           At the February 8, 2010 hearing, Akin

acknowledged that he signed the trial court’s admonishments regarding pro se

representation.   He also confirmed that, at the trial court’s request, he had

discussed the disadvantages of self-representation with a criminal defense

attorney. Akin stated that he had received a quote from a single attorney for

representation, that the fee was too high, and that he was putting all of his extra

money towards his existing fines and fees.        The trial court granted Akin an

extension to obtain counsel.

      On April 19, 2010, the trial court held a second admonishment hearing,

reiterating the same information set out above. In response to the trial court’s

questioning, Akin stated that he was thirty-seven years old, that his wife earned

―just under‖ $60,000 per year, and that they had four children. He also said that

he had recently started a landscape business, had an associate’s degree in

computer science, took anti-anxiety medication, and had represented himself at

his earlier criminal trial. Akin confirmed that he understood the charges in the

motion to revoke and that he had never had any competency or literacy issues.

Akin also stated that his financial situation had not changed since his previous

trial—in which the trial court had determined that he was not indigent—and that

―unless the requirements ha[d] changed, [he] probably wouldn’t qualify.‖ Akin


                                         3
reasserted that he allocated any extra money to his conviction’s judgment and

community supervision requirements. Akin admitted that he had only spoken to

one attorney in Denton County and that he could not pay that attorney’s quoted

retainer. The trial court then granted Akin’s request for more time to hire an

attorney.

      The third admonishment hearing, held on May 3, 2010, repeated the same

points of the previous hearings. Akin expressed difficulty in finding an attorney,

stating that the one attorney he visited (the same one mentioned in the previous

hearing) charged more than Akin could afford. The trial court stated it thought

the price Akin had been quoted was ―awfully high‖ and guaranteed that more

affordable attorneys practiced in Denton County.      Akin then received a third

extension to find counsel.

      The final admonishment hearing, held on May 21, 2010, recapped much of

the prior hearings. In addition, the trial court informed Akin that the maximum

punishment for his offense was 365 days in jail and a $2,000 fine. Akin said that

he was aware of possible defenses to the allegations in the motion to revoke and

that he had knowledge of the rules of evidence and trial procedure. The trial

court informed Akin that it would treat him as if he were a practicing attorney.

Akin confirmed that he did not feel pressured to represent himself, and the trial

court reminded Akin that he could hire an attorney before the revocation hearing.

      Akin did not retain counsel, and at the June 25, 2010 revocation hearing,

he pleaded ―true‖ to five of the seven alleged community supervision violations.


                                        4
In addition to testifying about Akin’s violations, Washburn, Akin’s probation

officer, testified about the prior show cause hearing. He said that he used show

cause hearings as a deterrent and that

      [i]f [the probationer will] come in and do a show-cause hearing,
      they’ll explain to the judge why they haven’t completed what was
      required of them. The judge will express to them, you know, the
      need to get going on their conditions of probation, and typically a
      weekend or two in County Jail will be a punitive action for not being
      in compliance with a court order. So I use them to avoid having a
      full-blown revocation whenever I think maybe -- you know,
      something more serious than just me trying to get them to do it when
      it’s not working.

When asked about the outcome of the show-cause hearing, Washburn replied,

―The judge sentenced [Akin] to two weekends in County Jail, and [Akin] refused

to do it.‖ After hearing all of the evidence, the trial court sentenced Akin to 120

days’ confinement, stating,

      Mr. Akin, I -- I’ve tried to work with you from the very beginning,
      okay, and you’ve fought me and the court. And even despite that, I
      tried to work with you the best as I can. I begged you before
      Christmas to give you a really good option as to going to jail and not
      having a motion to revoke filed against you, and you just totally
      rejected it. I stood up here and begged you. I mean, I literally -- I’ve
      never begged or tried to work with a defendant more than I have
      you, I don’t think. I begged you for an option back in December, and
      -- and you just wouldn’t take it. You were so hardheaded.

            ....

      I think you have taken some things more seriously since the motion
      to revoke has been filed or the punishment that I’m going to give you
      would be harsher, because I have noticed a change in your attitude
      once the motion to revoke was filed. But -- but you haven’t taken a
      lot of the stuff seriously even when you’ve been on probation. You
      can’t go to a program that I order you to go to, and you missed four
      times in there during those first few weeks there. You don’t do


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      things timely that I’ve asked you to do that – that don’t even have
      anything to do with finances. You weren’t working for a period of
      time. You wouldn’t do community service in a timely fashion.

      You -- you -- you’ve done nothing but tie my hands as to what I have
      to do today. Okay? You’ve -- you’ve chosen the road that you
      wanted to go. The judgment that -- you have earned the judgment
      that I’m about to give you. I’ll put it that way. And -- and -- and I
      hope the time that you’re going to sit in jail, that you will learn
      something from this and that you don’t want to ever have to go
      through anything like this again, but you have earned it.

When Akin attempted to interrupt the trial judge during this statement, the trial

judge cut him off, stating, ―No, this is not the time to talk.‖ Akin did not object to

the trial judge’s comments. This appeal followed.

                              III. Appointed Counsel

      In his first point, Akin challenges the trial court’s determination that he was

not indigent and, therefore, not eligible to have counsel appointed for the

revocation hearing.

A. Indigence

      A defendant has the right to counsel at a community supervision

revocation hearing. Tex. Code Crim. Proc. Ann. art. 42.12, § 21(d) (West Supp.

2010); Mempa v. Rhay, 389 U.S. 128, 137, 88 S. Ct. 254, 258 (1967); Ex parte

Jentsch, 510 S.W.2d 320, 321 (Tex. Crim. App. 1974). To be found indigent, a

defendant ordinarily must first submit to the court an affidavit of indigency. Tex.

Code Crim. Proc. Ann. art. 26.04(o) (West Supp. 2010). However, an affidavit of

indigency is not required where the accused otherwise makes known to the trial




                                          6
court that he is indigent. See Harriel v. State, 572 S.W.2d 535, 537 (Tex. Crim.

App. 1978).

      Determination of indigency is made on a case-by-case basis and involves

a two-part process:     (1) the defendant must make a prima facie showing of

indigency, and (2) if the defendant satisfies that burden, the burden then shifts to

the State to show the defendant is not, in fact, indigent. McFatridge v. State, 309

S.W.3d 1, 5–6 (Tex. Crim. App. 2010); Tuck v. State, 215 S.W.3d 411, 414–15

(Tex. Crim. App. 2007). Then,

      unless there is some basis in the record to find the defendant’s
      prima facie showing to be inaccurate or untrue, the trial court should
      accept it as sufficient to find him indigent. After a defendant
      establishes a prima facie showing of indigency, an appellate court
      can uphold a trial court’s determination of non-indigence only if the
      record contains evidence supporting such a determination. In
      Whitehead, we recognized that the two-step process outlined above
      . . . applies when determining whether a person is indigent for
      purposes of appointed counsel. A reviewing court should uphold a
      trial court’s ruling denying indigent status only if it finds that the trial
      court, having utilized this two-step process, reasonably believed the
      defendant was not indigent.

McFatridge, 309 S.W.3d at 6 (internal quotations and citations omitted); see also

Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim. App. 2004).

      There is no specific rule or legislation addressing what constitutes a prima

facie case of indigency. To determine if a defendant is indigent, the trial court

may consider the defendant’s income, source of income, assets, property owned,

outstanding obligations, necessary expenses, the number and ages of

dependents, and spousal income that is available to the defendant, as well as the



                                           7
defendant’s affidavit of indigency, sworn testimony, and proper financial

documentation. Tex. Code Crim. Proc. Ann. art. 26.04(m)–(n); McFatridge, 309

S.W.3d at 5–6; Whitehead, 130 S.W.3d at 877–78. A defendant is required to

exercise due diligence in establishing his prima facie case of indigency. Abdnor

v. State, 712 S.W.2d 136, 140–41 (Tex. Crim. App. 1986).

      The appellate court is limited to the evidence before the trial court at the

time of its ruling. Whitehead, 130 S.W.3d at 872. While the appellate court gives

deference to the trial court’s ruling, the trial court’s discretion is neither

―unfettered‖ nor ―unbridled‖; and the trial court must have a reasonable

articulable basis if it discounts or disregards appellant’s evidence. Id. at 875–76.

      Although Akin did not file an affidavit of indigency, his lack of counsel

during the early stages of the revocation process necessitated an examination by

the trial court of Akin’s potential indigence.3 See Oliver v. State, 872 S.W.2d 713,

716 (Tex. Crim. App. 1994). The letter from Akin’s wife also put the trial court on

notice of Akin’s potential indigence. Cf. Foley v. State, 514 S.W.2d 449, 450

(Tex. Crim. App. 1974).

      Despite not having held a separate indigency hearing, the trial court did not

neglect considering Akin’s financial circumstances, and the record contains

evidence to support the trial court’s finding Akin not indigent. See id. at 452

      3
       The record does not indicate when the trial court first became aware that
Akin lacked counsel, but Akin signed a document entitled ―Court’s Admonitions to
Defendant Not Represented by a Lawyer‖ within thirty days after the motion to
revoke was filed.


                                         8
(holding the defendant not indigent without having a separate indigency hearing).

By having Akin testify at the admonishment hearings about the statutory factors

listed in article 26.04(m), the trial court gave Akin an opportunity to prove a prima

facie case of indigency.      See Tex. Code Crim. Proc. Ann. art. 26.04(m);

Whitehead, 130 S.W.3d at 876 (holding that defendant’s financial allegations are

taken to be true absent a reason to believe otherwise). Akin testified that he had

recently started his own landscaping business and that his wife earned just under

$60,000 per year. While Akin testified that he supported a wife and four children

and incurred other expenses, some of which were related to his prior conviction,

neither Akin’s testimony, in which he agreed that he was not indigent, nor his

wife’s letter detailed those expenses or any other facet of the couple’s financial

situation. Akin provided no other details or documentation. Even ignoring Akin’s

admission that he did not qualify as indigent, Akin’s general assertion that he

could not afford an attorney, without more, failed to meet his burden to prove a

prima facie case of indigency.       See McFatridge, 309 S.W.3d at 6 (noting

defendant’s burden of production); see also Thomas v. State, 474 S.W.2d 692,

695 (Tex. Crim. App. 1972) (finding proper jury instruction defining prima facie

evidence as evidence that is not conclusive but may be rebutted or overcome by

contrary evidence and ―proof of the case, upon which the jury [m]ay find a

verdict, unless rebutted by other evidence‖); Taylor v. State, No. 11-09-00117-

CR, 2009 WL 1165544, at *3 (Tex. App.—Eastland Apr. 30, 2009, no pet.) (mem.

op., not designated for publication) (holding that defendant’s general statements


                                         9
concerning lack of ability to pay for a record failed to establish prima facie case of

indigency).

      Further, given the evidence in the record, the trial court could have

reasonably believed that Akin was not indigent because the income available to

Akin was sufficient to afford an attorney.       See Tuck, 215 S.W. 3d at 416

(assessing defendant’s expenses in light of the totality of defendant’s financial

situation). And, although Akin asserts that it was an injustice for the trial court to

conclude that his wife’s income was available to him when she was the

complaining witness in the original assault trial, Akin points to no evidence to

support the contention that his wife’s income was not available to him. Whatever

the status of the relationship between Akin and his wife at the assault trial, given

Akin’s wife’s letter, the trial court could have reasonably believed that the

relationship at the revocation hearing, over a year later, was such as would allow

Akin access to his wife’s income.          See Whitehead, 130 S.W.3d at 880

(acknowledging circumstances regarding indigency may change on remand after

the case was on appeal over a year).

      Because Akin did not meet his initial burden to produce evidence

establishing a prima facie claim of indigency, we hold that the trial court’s

determination that Akin was not indigent is reasonably supported by the record.

See McFatridge, 309 S.W.3d at 6; see also Taylor, 2009 WL 1165544, at *3. We

overrule Akin’s first point.




                                         10
                                 IV. Judicial Bias

       In his second point, Akin argues that by attempting to plea bargain with

him, the trial judge was not a fair and impartial magistrate, and that because the

trial judge applied a predetermined sentence,4 Akin was punished by refusing the

trial judge’s offer.

A. Standard of Review

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

Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761–62 (1973); Brumit

v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).             One of the most

fundamental components of a fair trial is a neutral and detached judge.

Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.—Houston [14th Dist.] 2007

pet. ref’d). A judge should not act as an advocate or adversary for any party. Id.

To reverse a judgment on the ground of improper conduct or comments of the

judge, we must find (1) that judicial impropriety was in fact committed and (2) that

this resulted in probable prejudice to the complaining party. Id. The scope of our

review is the entire record. Id. Judicial remarks during the course of a trial that


       4
        Because Akin did not challenge the propriety of his ―predetermined‖
sentence below, he has waived the right to challenge that the actual sentence—
revocation in lieu of continued community supervision—violated his due process
rights, and we are limited to an examination of whether the trial court’s alleged
predetermination showed bias. See Cole v. State, 931 S.W.2d 578, 579–80
(Tex. App.—Dallas 1995, pet. ref’d); see also Garza v. State, No. 07-09-00132-
CR, 2009 WL 3028989, at *1 (Tex. App.—Amarillo Sept. 23, 2009, no pet.)
(mem. op., not designated for publication) (holding failure to object at trial waived
complaint about predetermined sentence).


                                         11
are critical or disapproving of, or even hostile to counsel, the parties, or their

cases ordinarily do not support a bias or partiality challenge. Id. Such remarks

may constitute bias if they reveal an opinion deriving from an extrajudicial source;

however, when no extrajudicial source is alleged, such remarks will constitute

bias only if they reveal such a high degree of favoritism or antagonism as to

make fair judgment impossible. Id.

B. Applicable Law

      1. Plea Bargaining

      Plea bargaining is usually defined as the process by which the defendant

in a criminal case relinquishes the right to go to trial in exchange for a reduction

in either the charge, sentence, or both. Perkins v. Court of Appeals for Third

Supreme Judicial Dist. of Tex., 738 S.W.2d 276, 282 (Tex. Crim. App. 1987).

Although Texas trial judges are not expressly prohibited by statute or any rule of

law from participating in a plea bargaining session, a trial judge should not

participate in any plea bargain agreement discussions until an agreement has

been reached between the prosecutor and the defendant. Id.

      2. Bias

      A judge’s comments indicate bias if they show that the judge determined a

sentence without considering evidence or the full range of punishment. Brumit,

206 S.W.3d at 645.       In Brumit, the trial judge stated, when sentencing a

defendant to life in prison for the repeated aggravated sexual assault of two

children, that she believed anybody who harms a child should be put to death.


                                        12
Id. at 640.   The court of criminal appeals concluded that the trial judge’s

comments, made after hearing evidence of the crime and testimony from the

victims and their families about the effects of the crime and considering the full

range of punishment, did not indicate bias. Id. at 645. But see Earley v. State,

855 S.W.2d 260, 262 (Tex. App.—Corpus Christi 1993) (finding bias when trial

judge did not consider evidence but warned defendant of likely sentence should

probation be revoked and then expressed disappointment when he could not

impose harsher sentence), pet. dism’d, improvidently granted, 872 S.W.2d 758

(Tex. Crim. App. 1994); Jefferson v. State, 803 S.W.2d 470, 471 (Tex. App.—

Dallas 1991, pet. ref’d) (finding bias when trial judge did not consider evidence

and imposed a sentence that he had previously promised to impose).

C. Analysis

      Akin argues that the trial judge’s comments during sentencing at the

revocation hearing constituted a plea bargain with him.5            However, the


      5
        The State argues that because Akin failed to object to the trial judge’s
comments at the hearing, and because he does not argue that the comments by
the trial judge constituted fundamental error, he has waived this error. See Blue
v. State, 41 S.W.3d 129, 133 (Tex. Crim. App. 2000) (holding fundamental error
need not be preserved to be brought on appeal). Although one of our sister
courts of appeals has determined that a trial objection to allegedly biased
statements by the trial judge is necessary to preserve error, the court of criminal
appeals has yet to decide whether an objection to alleged bias of a trial judge is
required to raise the issue on appeal. See Brumit, 206 S.W.3d at 644 (declining
to rule on the issue); Vick v. State, 268 S.W.3d 859, 862 (Tex. App.—Texarkana
2008, pet. ref’d). However, we need not decide whether an objection is required
to preserve the issue for appeal because, assuming Akin could raise this issue,
we conclude that the trial judge’s comments here did not show bias.


                                        13
statements do not include any promise of leniency by the trial judge in exchange

for a certain plea from Akin. The trial judge’s comments about ―begging‖ Akin to

accept a ―really good option‖ that Akin ―totally rejected‖ do not show an attempt to

elicit any particular plea from Akin at the revocation hearing. While the trial judge

mentioned trying to work with Akin, there is no indication that the trial judge

wanted Akin to plead true at the revocation hearing or that the trial judge offered

a lesser punishment for such a plea.          Based on the pro se admonishment

hearings, in which the trial judge repeatedly warned Akin about the dangers of

pro se representation and gave him several extensions to hire an attorney, and

the fact that the trial judge did not let Akin interject a comment into the trial

court’s commentary, we conclude that the trial judge’s comments do not reflect

an attempt at plea bargaining, but rather reiterate the trial judge’s attempts to

help Akin continue with community supervision instead of revoking it.             Cf.

Townsend v. State, No. 05-05-00070-CR, 2006 WL 1085719, at *3–4 (Tex.

App.—Dallas Apr. 26, 2006, pet. ref’d) (holding that after listening to defendant’s

rambling argument, the trial judge’s statement in assessing a probated

sentence—―if [the defendant came] back in this court again with all this strange

[argument], I am going to assume that you need ten years in the penitentiary‖—

did not show bias).

      Moreover, the record contains no evidence that the trial court made

promises or warnings about what punishment would ensue if Akin violated the

terms of his community supervision. Cf. Earley, 855 S.W.2d at 262; Jefferson,


                                         14
803 S.W.2d at 471. At the revocation hearing, the trial judge heard evidence

related to Akin’s alleged violations and noted factors mitigating the severity of

Akin’s punishment—namely, that his attitude had changed and that he had

begun ―tak[ing] some things more seriously since the motion to revoke [was]

filed.‖ See Brumit, 206 S.W.3d at 645. And, after hearing the evidence, the trial

judge sentenced Akin to less than the maximum allowable punishment, indicating

that the judge considered the entire range of punishment. See Jaenicke v. State,

109 S.W.3d 793, 797 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding

that the trial court’s statements—that after listening to the evidence, it was forced

to assess the maximum punishment—did not reveal a predetermined sentence

and did not rebut presumption of a neutral and detached magistrate).

      Further, although Washburn testified that the trial judge ―sentenced‖ Akin

to a term of two weekends in jail at the show-cause hearing and that Akin refused

to serve this time, no record of this hearing is before us, and we cannot say that

Washburn’s testimony amounted to more than recounting Akin’s refusal of the

trial court’s offer to modify Akin’s community service obligations to avoid the

more severe revocation action. Based on Akin’s prior refusal to accept modified

terms at the show cause hearing, the trial court did not show bias by failing to

deploy this option in lieu of revoking Akin’s community supervision. See Tex.

Code. Crim. Proc. Ann. art. 42.12, §§ 22, 23; Ex parte Tarver, 725 S.W.2d 195,

199–200 (Tex. Crim. App. 1986) (noting that a trial court has considerable

discretion to modify, revoke, or continue community supervision).


                                         15
      For the reasons stated above, we hold that the trial judge did not attempt

to plea bargain with Akin and that the trial judge did not step beyond the bounds

of a neutral, detached magistrate. We overrule Akin’s second point.

                                 V. Conclusion

      Having overruled both of Akin’s points, we affirm the trial court’s judgment.


                                                   PER CURIAM

PANEL: MCCOY, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 11, 2011




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