Reversed and Remanded and Majority and Dissenting Opinions filed October
11, 2016.




                                      In The

                     Fourteenth Court of Appeals

                              NO. 14-15-00663-CR

                AUGUSTIN GABRIEL CABRERA, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

           On Appeal from the County Criminal Court at Law No. 2
                           Harris County, Texas
                       Trial Court Cause No. 1985771

                    DISSENTING OPINION
      In a single issue appellant asserts that the trial court violated his
constitutional right to due process by failing to consider the full range of
punishment. Because the record does not rebut the presumption that the trial court
considered the full range of punishment, this court should affirm.
                          Proceedings in the Trial Court

      The trial court asked the State to summarize what it expected the evidence at
trial to show. The State recited that it intended to call the complainant, who would
testify that items valued at approximately $300 were stolen from his car. The State
further expected to show that DNA matching appellant’s DNA was found inside of
the burglarized car.

      If appellant were convicted, the State expected to show that appellant
already had convictions for assault of a family member, engaging in organized
criminal activity, and two convictions for possession of a firearm by a felon.
Appellant told the trial court that he was serving a two-year sentence based on a
conviction for the felony offense of possession of a firearm by a felon. The
prosecutor said that if appellant were found guilty of the charged offense, the State
would ask that punishment be assessed at 180 days in jail. The trial court then
asked appellant:

      [D]o you see how a jury could find you guilty of the offense of
      burglary of a motor vehicle based upon the DNA comparison from the
      blood found in the car to your DNA, and if they find you guilty once
      they hear about all those prior convictions you have for various
      offenses they may just decide to give you 180 days in jail?

      Appellant stated he understood, but told the trial court he wanted to exercise
his right to a jury trial. Appellant also told the trial court he wanted to represent
himself at trial. After warning appellant of the dangers of self-representation, the
trial court permitted appellant to proceed to trial pro se, with appointed counsel
acting as stand-by counsel, prompting the following exchange:

      THE COURT: All right. I’ll let you represent yourself. I’ll ask
      [defense counsel] to sit with you as your standby lawyer. He’ll be

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      available for you to answer any questions you may have of him during
      trial. Is that all right?
      THE DEFENDANT: Yes, sir.
      THE COURT: Mr. Cabrera, you want the jury or the Court to assess
      punishment?
      THE DEFENDANT: The Court.
      THE COURT: All right. Mr. Cabrera, I hope you’re not under any
      illusion you are going to get 30 days after trial, are you?
      THE DEFENDANT: No, sir.

      After a jury found appellant guilty, the State offered no evidence at the
punishment phase and did not prove up any prior conviction, including the
conviction for assault of a family member alleged in the enhancement paragraph of
the information. Appellant did not offer any evidence either.             The trial court
assessed punishment at 180 days’ confinement but imposed no fine, and gave
appellant credit for the 241 days appellant already had spent in jail. The trial court
made no comment regarding the court’s basis for assessing punishment.

                Appellate Complaint and Applicable Legal Standard

      Appellant claims the trial court violated his constitutional right to due
process by failing to consider the full range of punishment. Specifically, he argues
the trial court did not consider assessing punishment at confinement for thirty days
or a shorter period based on the trial court’s pretrial question, “Mr. Cabrera, I hope
you’re not under any illusion you are going to get 30 days after trial, are you?”

      Due process requires trial judges to be neutral and detached in assessing
punishment.1 A trial court denies a defendant due process when it arbitrarily

1
 See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); State v. Hart, 342 S.W.3d
659, 672 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
                                            3
refuses to consider the entire range of punishment or imposes a predetermined
punishment.2 Absent a clear showing to the contrary, we are to presume that the
trial judge was neutral and detached in assessing appellant’s punishment and that
the trial judge considered the full range of punishment.3

          In McClenan v. State, the defendant elected a jury trial for guilt/innocence
but opted for the trial court to assess punishment.4 After empanelling the jury, but
before the State called its first witness during the guilt/innocence phase, the trial
court informed defense counsel that if the evidence during the guilt/innocence
phase was as portrayed during voir dire, the trial court would not grant probation (a
punishment within the statutory range).5 Even though the judge uttered these
words before conviction,6 the Court of Criminal Appeals held that the comments
did not show the trial court arbitrarily refused to consider the full range of
punishment.7

          In Buerger v. State, just before the hearing on the State’s motion to
adjudicate guilt based on violations of the defendant’s deferred-adjudication
probation, the trial court offered to assess punishment at ten years if the defendant
pleaded “true,” thus obviating the need for a hearing on the motion to adjudicate.8
The defendant declined the offer, and after the trial court found the violations to be
true and adjudicated guilt, the court assessed punishment at fifteen years’

2
    See Brumit, 206 S.W.3d at 645; Hart, 342 S.W.3d at 672.
3
    See Brumit, 206 S.W.3d at 645; Hart, 342 S.W.3d at 673.
4
  See McClenan v. State, 661 S.W.2d 108, 109 (Tex. Crim. App. 1983), overruled on other
grounds by, De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004).
5
    See id. at 109–110.
6
    See id.
7
    See id. at 110.
8
    See 60 S.W.3d 358, 360 (Tex. App.—Houston [14th Dist.] 2001, pet ref’d).

                                                4
confinement.9 On appeal, the defendant asserted that the trial court did not
consider assessing punishment at ten years or less because that is what the trial
court offered before the defendant forced the trial court to conduct an adjudication
hearing.10 The Buerger court held that the court’s ten-year offer did not preclude
the trial court from considering the full range of punishment. And, notably, the
Buerger court held that the record did not rebut the presumption that the trial court
did so.11

          In today’s case, at no point did the trial judge say he would impose a
predetermined punishment. Nor did the trial court make any comment during the
punishment phase indicating that he would not consider the full range of
punishment. Appellant points to a question the trial judge posed before trial —
“Mr. Cabrera, I hope you’re not under any illusion you are going to get 30 days
after trial, are you?” We must consider the question in context. That means
focusing on the circumstances at the time the trial court asked it. When the trial
court asked this question, appellant was acting pro se. Appellant had told the trial
court that he was then serving a two-year sentence based on a felony conviction for
possession of a firearm by a felon. Only shortly before, the prosecutor had
informed the court that, if appellant were convicted, the State would show that
appellant previously had been convicted of the offense alleged in the information’s
enhancement paragraph as well as three other offenses. If the State had proved
appellant’s prior conviction of the offense alleged in the information, thirty days’
confinement would not have been within the range of punishment because the



9
    See id.
10
     See id. at 364.
11
     See id. at 364–65.

                                         5
minimum term of confinement would have been for ninety days.12 For reasons not
reflected in the record, during the punishment phase the State did not attempt to
prove appellant’s prior conviction of the offense alleged in the information. That
decision materially changed things. It meant the applicable range of punishment
included confinement in jail for a term not to exceed one year, which would
include confinement for thirty days or a shorter term of confinement.13

         The majority concludes that the trial court’s question “clearly” indicated that
the court, without any evidence before it, “arbitrarily” refused to consider the
entire range of punishment. Considered in context, the judge’s question cannot
fairly be characterized as clearly signaling a refusal to ponder the full range of
punishment. The presumption (that the court did consider the full range of
punishment) heightens the hurdle, and nothing in our record is enough to get over
it.

         The majority notes that the trial court did not say “I hope you’re not under
any illusion you are going to get 30 days after trial if the enhancement paragraph is
found true, are you?” Yet, it is also true that the trial court did not say “even if the
enhancement paragraph is not found true, I hope you’re not under any illusion you
are going to get 30 days, are you?” Given the context in which the trial court
posed its question, the record does not contain a clear showing sufficient to
overcome the presumption that the trial court considered the full range of
punishment.14 The trial court’s pre-trial statements do not show that the trial court
failed to consider the full range in assessing punishment after the jury found
12
     See Tex. Penal Code Ann. § 12.43(a) (West, Westlaw through 2015 R.S.).
13
     See id. § 12.21 (West, Westlaw through 2015 R.S.).
14
   See McClenan, 661 S.W.2d at 109–10; Hart, 342 S.W.3d at 672–74; Buerger, 60 S.W.3d at
364–65; Jaenicke v. State, 109 S.W.3d 793, 795–97 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref’d).

                                                 6
appellant guilty of the charged offense and the State failed to prove the prior
conviction alleged in the information.15




          The majority relies on three cases involving a single county-court-at-law
judge in Dallas.16 This judge had a practice of telling defendants when he was
placing them on deferred-adjudication probation that if they violated probation and
he adjudicated their guilt, he would assess the maximum punishment.17 In two of
the cases — Brown and Jefferson — when the judge put the defendant on
probation, he promised the defendant that punishment would be assessed at the
maximum if the defendant violated probation.18 When the same judge assessed
punishment following the defendant’s violation of probation, the judge indicated
that he was keeping his promise to assess the maximum sentence.19 The reviewing
courts in Brown and Jefferson held that the trial judge failed to consider the entire
range of punishment because the record showed that the judge assessed the
maximum punishment to fulfill his promise to do so, without considering the
evidence at the sentencing hearing or a lesser punishment.20

          The third case — Earley — involved a similar fact pattern as Brown and
Jefferson, except that, when the judge placed the Earley defendant on deferred-

15
  See McClenan, 661 S.W.2d at 109–10; Hart, 342 S.W.3d at 672–74; Buerger, 60 S.W.3d at
364–65; Jaenicke, 109 S.W.3d at 795–97.
16
  See Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005); Jefferson v. State, 803 S.W.2d
470 (Tex. App.—Dallas 1991, pet. ref’d); Earley v. State, 855 S.W.2d 260 (Tex. App.—Corpus
Christi 1993, pet. ref’d).
17
     See Ex parte Brown, 158 S.W.3d at 451–52; Jefferson, 803 S.W.2d at 471–72.
18
     See Ex parte Brown, 158 S.W.3d at 451–52; Jefferson, 803 S.W.2d at 471–72.
19
     See Ex parte Brown, 158 S.W.3d at 451–52; Jefferson, 803 S.W.2d at 471–72.
20
     See id. at 456–57.

                                                7
adjudication probation, the judge did not unequivocally say that he would assess
the maximum if the defendant violated probation; instead, the judge stated that he
would probably assess the maximum if that happened.21 Though conceding that
this fact pattern was not the same as other cases involving this judge, the Earley
court still found that the record clearly rebutted the presumption that the judge had
considered the entire range of punishment based on the judge’s comment at the
beginning of the revocation hearing, in which he revealed an intention to assess the
maximum punishment regardless of what evidence would be introduced at the
punishment hearing.22

           Today’s case is different.   The trial court did not promise to assess a
specific punishment, and the trial court did not assess the maximum
punishment. Appellant presented no evidence at the punishment phase for the trial
court to consider in assessing punishment. Though the trial court made an ill-
advised pre-trial remark, at the time he did so, there was no reason to believe that
thirty days’ confinement would be within the range of punishment, given the
enhancement allegation, appellant’s candid admission, and the State’s assertion
that the punishment evidence would prove the enhancement allegation, thus
making the minimum term of confinement ninety days. The trial court’s statement
does not clearly show that the trial judge would not consider the full range of
punishment in the unexpected event that the State changed its stated plan and failed
to prove the prior conviction so that a different range of punishment would apply.
Unlike in Brown, Jefferson, and Earley, the trial court in today’s case did not make
any comment that it would assess the maximum punishment regardless of the
punishment-phase evidence.

21
     Earley, 855 S.W.2d at 262.
22
     See id.

                                            8
      On this record, there has been no clear showing sufficient to rebut the
presumption that the trial judge considered the full range of punishment.23
Accordingly, the panel should overrule appellant’s sole appellate issue and affirm
the trial court’s judgment. Because the panel does not, I respectfully dissent.




                                        /s/       Kem Thompson Frost
                                                  Chief Justice


Panel consists of Chief Justice Frost and Justices McCally and Brown. (Brown, J.,
majority).
Publish — Tex. R. App. P. 47.2(b).




23
  See McClenan, 661 S.W.2d at 109–10; Hart, 342 S.W.3d at 672–74; Buerger, 60 S.W.3d at
364–65; Jaenicke, 109 S.W.3d at 795–97.

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