Affirmed and Memorandum Opinion filed December 20, 2012.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00067-CR

                          JOHN MATTE, Appellant

                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 252nd District Court
                          Jefferson County, Texas
                       Trial Court Cause No. 09-07779

                 MEMORANDUM                    OPINION

      Appellant, John Matte, appeals from the trial court’s judgment revoking his
deferred adjudication community supervision and finding him guilty of the offense
of assault on a family member. See Tex. Penal Code Ann. § 22.01(b)(2) (West
2011).    He contends that the trial court failed to consider the full range of
punishment in sentencing him to ten years’ imprisonment.       We disagree and
affirm.
                                      BACKGROUND

      Appellant was indicted for the offense of assault on a family member, a third
degree felony, in November 2009. Appellant waived a jury trial and entered a plea
of guilty. In August 2010, the trial court placed appellant on three years’ deferred
adjudication with community supervision and assessed a $750.00 fine.

      In November 2011, the State filed a Motion to Revoke Unadjudicated
Probation. At the hearing on the motion, appellant entered a plea of true to an
allegation that he failed to pay court-assessed fees in violation of the conditions of
his community supervision. Appellant entered a plea of untrue to an allegation that
he committed the offense of terroristic threat on October 30, 2011. See Tex. Penal
Code Ann. §22.07(a)(2) (West 2011). During the ensuing evidentiary hearing,
several witnesses, including appellant, testified regarding the terroristic threat
allegation. At the conclusion of the evidence, the trial court found both allegations
true, revoked appellant’s probation, and gave him the maximum sentence of ten
years’ imprisonment for the assault. The court explained its decision as follows:

      THE COURT:          The problem here, Mr. Matte, is you’re on
                          probation, my probation, for assault on a family
                          member and I’ve reviewed the presentence report
                          underlying your case and in that case you tried to
                          play that down as being no big deal. And I’m
                          looking through your history here in the
                          presentence report, and all I see is you being a
                          bully and a thug. Maybe Ms. Matte is not a perfect
                          lady, but I believe this evidence shows that you did
                          what you have done in the past. You’ve got a hot
                          temper. You had a short fuse and for whatever
                          reason, you decided that it was enough that
                          happened to go firing away and you threatened her
                          while you’re on probation and that was a big
                          mistake.


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               In fact, I’m looking at this criminal history when
               we put you on probation and you knew it was
               going to be a reach because you’ve got in ’97, two
               family assaults and it was revoked in ’99; a family
               assault in ’99, 75 days in jail and you have—the
               presentence report is always very thorough and has
               a lot about someone in their history but, I mean,
               it’s loaded with you being a bully. I thought that
               sending you to SAFPF, it was a substance abuse
               issue, that you would be all better and you would
               learn your lesson and would be calm and deal with
               your problems in more of a gentlemanly, adult
               way. And apparently, this love spat, you can’t deal
               with your issues any better than you did before we
               sent you to SAFPF. I’m very disappointed
               because I kind of stuck my neck out on that one
               and I thought you would be better and deal with
               your problems in a better way than you have, but
               you have proven to be dangerous and a threat to
               others in the free world.
               Your probation is revoked. Earlier you pleaded
               guilty to assault on a family member, a third
               degree felony, voluntarily. You were mentally
               competent to do so.          You understood the
               consequences of pleading guilty. There was
               sufficient evidence supporting your guilty plea to
               find you guilty beyond a reasonable doubt. I now
               find you guilty beyond a reasonable doubt of this
               underlying offense. It is a third degree felony.
               You are hereby sentenced to confinement in the
               Institutional Division of the Texas Department of
               Criminal Justice to serve a term of 10 years. Let
               me just ask you: You have a tattoo on your lower
               lip, don’t you?
[APPELLANT]:   Yes, sir.
THE COURT:     What does it say?
[APPELLANT]:   It’s derogatory.
THE COURT:     What does it say?

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      [APPELLANT]:       “F[***] you.”
      THE COURT:         Do you think someone who would tattoo
                         something on their lips, it would be—you would
                         be a verse [sic] to saying the kind of vulgarity we
                         have here on those tapes and those threats? Every
                         word you say goes past those words that you have
                         stapled onto your body. There is not even a self
                         respect issue. I mean, you take pride in being
                         defiant and vulgar; and we heard it in these tapes.
                         I hope that you can do something about getting a
                         grip on yourself and your dealings with others but
                         you’re supposed to be living in this world with 7
                         billion other people in a form of peace. And if you
                         treat people you say you love this way like I heard,
                         what about all those people you don’t like? I’ll bet
                         you they are in harm’s way. You’ve got a long life
                         ahead of you but you need to change the direction
                         that your mindset is and your aggressive nature in
                         dealing with your personal relationships that not
                         only hurt others but commit crimes and you
                         committed a crime while on probation, the same
                         kind of crime while on probation and this Court is
                         not going to be tolerant of violence and that’s what
                         that is, a threat of violence to burn a lady and her
                         children in their home. It’s illegal. It’s not
                         appropriate and this Court is going to administer
                         justice under these circumstances and this Court
                         under the circumstances and the evidence in this
                         case, finds this decision to be proper and just.

                                    ANALYSIS

      On appeal, appellant contends in his first issue that the trial court violated
his right to due process when it allegedly failed to consider the entire range of
punishment. In response, the State asserts appellant waived any complaint he may
have regarding the sentence imposed by the trial court because he failed to object
at the time the sentence was imposed. Anticipating the State’s waiver argument,

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appellant, citing the Court of Criminal Appeals opinion in Ex parte Brown, 158
S.W.3d 449, 454 (Tex. Crim. App. 2005), argues no contemporaneous objection
was necessary because the evidence that the trial court refused to consider the full
range of punishment was ambiguous. Assuming appellant’s contention is correct
that he was excused from the long-standing rule that errors in sentencing can be
waived by failure to object, we conclude the record does not support appellant’s
argument that the trial court did not consider the entire range of punishment.
Instead, the record evidence, quoted in part above, supports the opposite
conclusion.

      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)); Phillips v. State, 887 S.W.2d
267, 270 (Tex. App.—Beaumont 1994, pet. ref’d). A trial court denies due process
when it arbitrarily refuses to consider the entire range of punishment for an offense
or refuses to consider mitigating evidence and imposes a predetermined
punishment. Buerger, 60 S.W.3d at 364 (citing McClenan v. State, 661 S.W.2d
108, 110 (Tex. Crim. App. 1983), overruled on other grounds by De Leon v.
Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004)). For example, a trial court
denies due process when it actually assesses punishment at revocation consistent
with the punishment it has previously announced it would assess upon revocation.
Id. In the absence of a clear showing to the contrary, we presume that the trial
court was neutral and detached. Id.

      Here, the record establishes that the trial court conducted an evidentiary
hearing in which appellant had an opportunity to present mitigating evidence.
Indeed, the trial court even inquired if appellant intended to retake the witness

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stand following testimony from his probation officer, which directly contradicted
appellant’s previous sworn testimony denying ownership of the cellular telephone
used to convey the terroristic threats at issue. In addition, an examination of the
revocation hearing record demonstrates that the trial court sentenced appellant
based on (1) the trial court’s assessment of the evidence introduced during the
hearing, (2) a review of appellant’s presentence investigation report prepared
during the underlying assault case, and (3) the failure of other efforts to change
appellant’s behavior. Also, there is no evidence that the trial court had previously
promised to assess appellant’s punishment at the maximum term of confinement in
the event he violated the terms of his community supervision.

      Because appellant has failed to demonstrate that the trial court arbitrarily
failed to consider the entire range of punishment before sentencing him to ten
years’ imprisonment, we overrule his first issue on appeal. Appellant also lists a
second issue in his brief: “the trial court erred in giving [him] the maximum
sentence.”   Appellant does not separately brief this issue, and therefore we
conclude he has waived it. Tex. R. App. P. 38.1(i).

                                      CONCLUSION

      Having overruled appellant’s issues on appeal, we affirm the trial court’s
judgment.




                                      /s/       J. Brett Busby
                                                Justice



Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
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