AFFIRMED; Opinion Filed October 30, 2014.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00030-CR

                            TERENA WILLOUGHBY, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 363rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1358698-W

                             MEMORANDUM OPINION
                       Before Justices FitzGerald, Fillmore, and Stoddart
                                  Opinion by Justice Stoddart
       Terena Willoughby was charged with aggravated assault with a deadly weapon. She

waived her right to a jury trial, executed a judicial confession and stipulation of evidence, and

entered an open plea of guilty and true to the allegations in the indictment. The trial court found

her guilty and sentenced her to twenty years’ incarceration. The trial court made an affirmative

finding that she used a deadly weapon and made a finding of family violence. In a single issue,

Willoughby argues that the trial court abused its discretion by considering facts of a separate

criminal trial when assessing her sentence. We affirm the trial court’s judgment.

       The underlying facts of the case are not relevant to this appeal and, therefore, we do not

recite them. The issue in this appeal is wholly related to the sentence imposed on Willoughby.

       During the sentencing, the trial judge heard testimony from several witnesses who

testified on Willoughby’s behalf, each noting that the crime was out of character for her and
asking that Willoughby be released on probation.         The judge also heard testimony from

Willoughby that she had two prior convictions for aggravated assault with a deadly weapon, and

she has “an anger problem.” Willoughby testified that she had been drinking alcohol at the time

that she committed each assault, although she denied having “an alcohol problem.”

        Before assessing punishment, the trial judge had the following exchange with

Willoughby:

               [Judge]: Ms. Willoughby, six weeks ago we tried a case in here exactly
       like this where a Defendant poured gasoline on the complaining witness and lit
       her on fire. Do you know where he is right now?
               [Willoughby]: Yes, I’m aware. I seen it on TV.
               [Judge]:       Where is he?
               [Willoughby]: Doing 99.
               ...
               [Judge]: I asked you where he was, and you said you knew.
               [Willoughby]: In jail.
               [Judge]: No, ma’am, he’s on death row.

The judge then sentenced Willoughby to twenty years’ incarceration.
       In her brief, Willoughby argues that her exchange with the trial judge was influenced by

the other case in which the defendant was sentenced to death. Willoughby argues that she

requested probation, the State requested a ten year sentence, and the trial court’s sentence of

twenty years’ incarceration shows the trial court was improperly influenced by the other case.

Willoughby concedes in her brief that the sentence imposed is within the statutorily authorized

range for a second degree felony with proof of a prior conviction. See TEX. PENAL CODE §§

12.32, 12.42(b) (West 2011 & Supp. 2014)..

       “Due process requires a neutral and detached hearing body or officer.” Brumit v. State,

206 S.W.3d 639, 645 (Tex. Crim. App. 2006). “[A] trial court’s arbitrary refusal to consider the

entire range of punishment in a particular case violates due process.” Ex Parte Brown, 158

S.W.3d 449, 456 (Tex. Crim. App. 2005); see also Brumit, 206 S.W.3d at 645. But “[a]bsent a

clear showing of bias, a trial court’s actions will be presumed to have been correct.” Brumit, 206

                                               –2–
S.W.3d at 645. Bias is not shown when (1) the trial court hears extensive evidence before

assessing punishment, (2) the record contains explicit evidence that the trial court considered the

full range of punishment, and (3) the trial court made no comments indicating consideration of

less than the full range of punishment. See id.; see also Brown, 158 S.W.3d at 456.

       When the hearing began on Willoughby’s open plea, the trial court asked counsel: “So

we’re looking at a minimum of five [years]?” The prosecutor replied this was correct. See TEX.

PENAL CODE §§ 12.32 (punishment shall be imprisonment “for life or for any term of not more

than 99 years or less than 5 years), 12.42(b). Later, the trial court asked Willoughby: “But

you’re asking me for probation?” Willoughby responded affirmatively.

       The record also shows the trial judge heard testimony from several witnesses who

testified on Willoughby’s behalf, each noting the crime was out of character for her and asking

that Willoughby be released on probation. The judge heard testimony from Willoughby about

her prior aggravated assaults and her unresolved anger problems. The trial judge had before him

a judicial confession, an open plea of guilty to the allegations in the indictment, a finding that

Willoughby used a deadly weapon to commit the offense, and a finding of family violence. The

record shows the judge was aware that Willoughby sought probation, and also was aware of the

proper range of punishment.

       The judge did not make any comments indicating the basis for his decision to assess

twenty years’ incarceration, nor did the judge comment about why he chose twenty years rather

than the ten recommended by the State or the probationary term requested by Willoughby.

Based on this record, the comments of the trial judge do not reflect bias, partiality, or that the

trial judge did not consider the full range of punishment. We overrule Willoughby’s sole issue.




                                               –3–
       While a trial judge should limit his comments to the facts of the case before him, the

judge’s comments in this case do not rise to the level of showing bias such that Willoughby’s

sentence must be reversed.

       We affirm the trial court’s judgment.




                                                     /Craig Stoddart/
                                                     CRAIG STODDART
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47
140030F.U05




                                               –4–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

TERENA WILLOUGHBY, Appellant                       On Appeal from the 363rd Judicial District
                                                   Court, Dallas County, Texas
No. 05-14-00030-CR        V.                       Trial Court Cause No. F-1358698-W.
                                                   Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                       Justices FitzGerald and Fillmore
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 30th day of October, 2014.




                                             –5–
