                                      In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                               _________________

                               NO. 09-13-00516-CR
                               _________________

                     BRANDI LEIGH BERWICK, Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                   On Appeal from the Criminal District Court
                           Jefferson County, Texas
                          Trial Cause No. 12-14971
__________________________________________________________________

                           MEMORANDUM OPINION

      Pursuant to a plea bargain agreement, appellant Brandi Leigh Berwick1 pled

guilty to the offense of theft of property valued at less than $1,500 while having

two or more prior theft convictions, a state jail felony. See Tex. Penal Code Ann. §

31.03(e)(4)(D) (West Supp. 2013). The trial court adjudged Berwick guilty and

assessed her punishment at two years of imprisonment, but suspended Berwick’s

sentence and placed her on community supervision for five years. Thereafter, the


      1
          Brandi Leigh Berwick is also known as Brandi Berwick.
                                          1
State filed a motion to revoke Berwick’s community supervision. During the

hearing on the motion to revoke, Berwick pled “true” to violating five conditions

of her community supervision. At the conclusion of the revocation hearing, the

trial court found that Berwick violated the conditions of her community

supervision, revoked Berwick’s community supervision, and sentenced Berwick to

two years of confinement in state jail. Berwick timely filed a notice of appeal.

                 Failure to Consider Full Range of Punishment

      In her first issue, Berwick argues that the trial court violated her right to due

process by arbitrarily refusing to consider the entire range of punishment for her

offense. Berwick contends that the trial court was not a fair and impartial tribunal

because the trial judge “berated” her during the revocation hearing and sentenced

her to the maximum term without considering a lesser sentence and without

considering mitigating circumstances presented by Berwick. The State argues that

Berwick waived this argument by failing to object at the trial court level. The

State further argues that even if no waiver occurred, there is nothing in the record

to substantiate Berwick’s claim that the trial court failed to consider the entire

range of punishment.

      The Due Process Clause of the Fourteenth Amendment provides that no

State may “deprive any person of life, liberty, or property, without due process of


                                          2
law[.]” U.S. CONST. amend. XIV, § 1. Similarly, the Texas Constitution provides

that “[n]o citizen of this State shall be deprived of life, liberty, property, privileges

or immunities . . . except by the due course of the law of the land.” Tex. Const. art.

I, § 19. “The touchstone of due process is fundamental fairness.” Euler v. State,

218 S.W.3d 88, 91 (Tex. Crim. App. 2007). Accordingly, “[t]he Constitutional

mandate of 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)). A trial court denies a

defendant due process by arbitrarily refusing to consider the entire range of

punishment for an offense. Ex parte Brown, 158 S.W.3d 449, 454, 456 (Tex.

Crim. App. 2005). Likewise, a trial court denies a defendant due process when it

refuses to consider mitigating evidence and imposes a predetermined punishment.

Buerger, 60 S.W.3d at 364. However, in the absence of a clear showing to the

contrary, a reviewing court must presume that the trial court was neutral and

detached in sentencing the defendant and considered the full range of punishment.

See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Jaenicke v.

State, 109 S.W.3d 793, 796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (op.

on reh’g).


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         In order to preserve appellate review of a complaint that the trial court

arbitrarily refused to consider the entire range of punishment, the defendant must

make a timely objection at the trial court level. See Tex. R. App. P. 33.1; Teixeira

v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref’d). “This rule

ensures that trial courts are provided an opportunity to correct their own mistakes

at the most convenient and appropriate time—when the mistakes are alleged to

have been made.” Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002). In

the present case, the record does not reflect that Berwick objected to the trial

court’s alleged failure to consider the full range of punishment at the trial court

level.     Nevertheless, Berwick argues that under the Texas Court of Criminal

Appeals’s decision in Ex parte Brown, she was not required to make a

contemporaneous objection because the evidence that the court failed to consider

the full range of punishment was ambiguous. See 158 S.W.3d at 453 & n.3. Even

if we were to assume that Berwick’s contention is correct and that she was excused

from the long-standing rule that errors in sentencing are waived by the failure to

object, we conclude that the record does not support Berwick’s argument that the

trial judge arbitrarily refused to consider the entire range of punishment for her

offense.




                                         4
      As noted, Berwick pled guilty to the offense of theft of property valued at

less than $1,500 while having two or more prior theft convictions, a state jail

felony. See Tex. Penal Code Ann. § 31.03(e)(4)(D). The punishment range for a

state jail felony is 180 days to two years of confinement in state jail and a fine of

up to $10,000. See id. § 12.35(a)-(b) (West Supp. 2013). During the revocation

hearing, the trial judge advised Berwick of the applicable punishment range and

asked her questions to ensure she understood that she could be sentenced anywhere

within that range if she pled true to the allegations in the State’s motion to revoke.

      Further, the record of the revocation hearing reflects that the trial judge

heard arguments from both the prosecutor and defense counsel before deciding to

revoke Berwick’s community supervision and assess punishment. In support of its

request for revocation, the State pointed to multiple aggravating circumstances,

including Berwick’s criminal history, prior probation revocation, and continued

criminal behavior while on community supervision.            Specifically, the record

reflects that Berwick had two prior misdemeanor convictions for theft in 2006 and

2007 and two convictions for felony credit card abuse in 2011. Although Berwick

had received probation for at least one prior offense, that probation was later

revoked. Further, the record reflects that approximately one month after being

placed on probation for the underlying offense of felony theft, Berwick committed


                                           5
the additional offense of forgery of a financial instrument by attempting to

negotiate a counterfeit check. During the revocation hearing, Berwick pled true to

committing the forgery offense.

      In mitigation of her offenses, Berwick argued that her criminal behavior

while on probation had been fueled by an addiction to drugs, and she requested to

be placed in JCDI 2 rather than be sent to state jail. The trial judge, however, noted

that Berwick had previously been ordered to attend treatment at SAFPF3and

explained to Berwick: “[I]n all fairness to you, so you know, JCDI is seldom, if

ever, an option after you went to SAFPF. . . . [I]f you fail SAFPF, then failed to

progress from SAFPF, then, I mean, that’s as intensive as we can do.” The only

other mitigating circumstance raised during the revocation hearing was that

Berwick had given birth to a son approximately two months before the revocation



      2
         “JCDI” is an acronym for “Jefferson County Drug Intervention.” Jefferson
County CSCD: Divisions of the Jefferson County CSCD, available at
http://www.co.jefferson.tx.us/adult_prob/AdultAbout.htm (last visited September
3, 2014). JCDI consists of “out-patient drug and alcohol treatment in a Drug Court
setting for clients who are addicted or abusing substances.” Id.
      3
          “SAFPF” is an acronym for “Substance Abuse Felony Punishment
Facility.” Jefferson County CSCD: Divisions of the Jefferson County CSCD,
available at http://www.co.jefferson.tx.us/adult_prob/AdultAbout.htm (last visited
September 3, 2014). SAFPF is “[a] long term treatment program for drug and
alcohol addiction consisting of 6-12 months in a SAFPF Facility followed by
approximately 90 days in a residential treatment center and finishing with up to
nine months in a supportive out-patient program.” Id.
                                         6
hearing. The record before the trial court, however, reflected that Berwick had

tested positive for methamphetamines, amphetamines, benzodiazepines, opiates,

and tetrahydrocannabinol at the time she gave birth to her son; that her son was

born at twenty-seven weeks gestation (thirteen weeks premature) with severe

bleeding of the brain; that her son tested positive for at least one illegal substance

at birth; that her son remained in critical condition at the hospital as of the time of

the revocation hearing; and that Child Protective Services had opened a case to

investigate Berwick. Berwick admitted during the revocation hearing that both she

and her infant son had tested positive for drugs at the time her son was born, but

denied that the drugs had anything to do with the child’s premature birth or his

extensive medical problems.

      Nothing in the record suggests that the trial judge refused to consider the

mitigating circumstances presented by Berwick during the revocation hearing.

Likewise, nothing in the record indicates that the trial judge imposed a

predetermined punishment or arbitrarily refused to consider the entire range of

punishment in assessing Berwick’s sentence. Instead, the record reflects that the

trial judge listened to the arguments presented by both sides, reviewed the evidence

in the record before him, and determined that two years was an appropriate

punishment, particularly considering Berwick’s prior convictions, her continued


                                          7
failure to comply with the conditions of her community supervision, and her

previous stint in SAFPF. Further, the judge’s comments during the revocation

hearing demonstrate that he was aware of the range of punishment for the charged

offense, and there is nothing in the record that rebuts the presumption that the trial

judge considered this range in assessing Berwick’s punishment. We conclude,

therefore, that Berwick has not met her burden of demonstrating that the trial judge

arbitrarily failed to consider the full range of punishment.

      We also find nothing in the record to establish that the trial judge was biased

or prejudiced or otherwise failed to remain detached and neutral during the

revocation hearing. “[T]he terms ‘bias’ and ‘prejudice’ do not encompass all

unfavorable rulings towards an individual, or her case[.]” Abdygapparova v. State,

243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). Rather, such

terms “must ‘connote a favorable or unfavorable disposition or opinion that is

somehow wrongful or inappropriate, either because it is undeserved, or because it

rests upon knowledge that the subject ought not to possess . . . , or because it is

excessive in degree.’” Id. (quoting Liteky v. United States, 510 U.S. 540, 550

(1994)). “Judicial remarks during the course of a trial that are critical or

disapproving of, or even hostile to counsel, the parties, or their cases, ordinarily do

not support a bias or partiality challenge.” Dockstader v. State, 233 S.W.3d 98,


                                          8
108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Further, “expressions of

impatience, dissatisfaction, annoyance, and even anger” do not establish bias or

partiality. Liteky, 510 U.S. at 555-56. Rather, the defendant must show a “‘deep-

seated favoritism or antagonism that would make fair judgment impossible.’”

Abdygapparova, 243 S.W.3d at 198 (quoting Liteky, 510 U.S. at 555).

      Berwick argues that the trial court’s failure to remain detached and neutral is

evidenced by the fact that the trial judge “berated” her during the revocation

hearing. Berwick, however, fails to identify any specific statement, action, or

inaction by the trial judge that she contends constitutes a failure to remain impartial

or a deep-seated favoritism or antagonism that would make fair judgment

impossible. After conducting an independent review of the record, we do not find

anything in the record indicating that the trial court failed to remain detached and

neutral during the revocation hearing. While the trial judge’s comments about

Berwick’s drug use while she was pregnant reflect the trial judge’s concern over

the extent of Berwick’s difficulty in controlling her behavior and ability to make

the right choices, these comments do not reflect that the trial judge failed to

consider the law and the relevant facts in a neutral and detached manner. We

perceive no denial of due process under the state or federal constitution.

Accordingly, we overrule Berwick’s first point of error.


                                          9
                           Cruel and Unusual Punishment

         As part of her first point of error, Berwick also argues that the trial judge

punished her for being a “drug addict,” which, she contends, “constitutes ‘cruel

and unusual punishment’ in violation of the Eighth and Fourteenth Amendments to

the United States Constitution.” Berwick, however, did not object to her sentence

either at the time it was imposed or in a motion for new trial. It is well-established

that even constitutional rights, including the right to be free from cruel and unusual

punishment, may be waived by the failure to raise a timely objection in the trial

court.    See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);

Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). By

failing to object in the trial court, Berwick has waived her complaint. See Tex. R.

App. P. 33.1. Accordingly, we overrule this point of error.

                                  Assessment of Fine

         In her second point of error, Berwick contends the trial court erred by

including a $500 fine in its written judgment when the court did not orally

pronounce the fine at the time of sentencing during the revocation hearing.

However, after the briefing in this case was filed, the parties jointly filed a

document entitled “Amendment Appellant’s Second Issue,” which states that

“upon closer inspection of the record and in accord with applicable statute and case


                                           10
law, [Berwick] and the State agree there is no error in the matter of any fine having

been assessed at final conviction in this cause.” Because Berwick concedes no

error with respect to her argument that the trial court improperly assessed a $500

fine, we need not address Berwick’s second issue on appeal. See Tex. R. App. P.

47.1. The judgment of the trial court is affirmed.

      AFFIRMED .

                                                     ________________________
                                                         CHARLES KREGER
                                                               Justice

Submitted on June 30, 2014
Opinion Delivered September 3, 2014
Do not publish

Before Kreger, Horton, and Johnson, JJ.




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