                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00041-CR
        ______________________________


     TAKISHA DESHAWN ROLFE, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 124th Judicial District Court
                Gregg County, Texas
              Trial Court No. 34257-B




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                         MEMORANDUM OPINION

           Takisha Deshawn Rolfe appeals her conviction by the trial court for forgery—a state-jail

felony. See TEX. PENAL CODE ANN. § 32.21 (West 2011). Rolfe entered an open plea1 of guilty

to the trial court and signed a stipulation of evidence. In the stipulation, Rolfe admitted she

passed three forged checks. At the plea hearing, the trial court accepted the plea of guilty and

found Rolfe guilty, but did not pronounce Rolfe’s sentence. At a later hearing, the trial court

imposed a sentence of nine months’ confinement. The Texas Court of Criminal Appeals has

granted Rolfe an out-of time appeal. See Ex parte Rolfe, No. AP-76,474, 2011 Tex. Crim. App.

Unpub. LEXIS 10 (Tex. Crim. App. Jan. 12, 2011) (per curiam) (not designated for publication).

           Rolfe’s sole issue on appeal is that the trial court failed to remain neutral and became

adversarial. Rolfe argues the nature of the questioning by the trial court ―essentially accused the

Appellant of lying in regard to her having a sister who worked at Kohl’s and her previous criminal

conspiracy with the sister to commit a crime similar to the case at bar.‖ According to Rolfe, the

trial court, even in the face of overwhelming evidence Rolfe did not have a sister, indicated it had

questions about the credibility of Rolfe. Rolfe argues the trial court’s decision to sentence Rolfe

to confinement instead of community supervision demonstrates the trial court failed to remain

neutral.2


1
    There was not any negotiated sentence agreement.
2
 We note that Rolfe argues the trial court should have placed Rolfe on community supervision. To the extent this
argument can be construed as a failure to consider the entire range of punishment, the argument is not preserved for

                                                         2
         Due process requires a neutral and detached judicial officer. See Brumit v. State, 206

S.W.3d 639, 645 (Tex. Crim. App. 2006). Absent a clear showing to the contrary, we presume

that the trial court was neutral and impartial. Id.; Brown v. State, 334 S.W.3d 789, 806 (Tex.

App.—Tyler 2010, pet. ref’d).

         At the plea hearing, Rolfe testified she was twenty-eight years old and had never been

convicted of a felony. Rolfe testified she had only been arrested once, and the charges had been

dropped.3 Rolfe testified she was a high school graduate, had attended college for nine months,

and was a single parent of two children.

         On cross-examination, the State asked Rolfe when was the last time she smoked marihuana

and Rolfe responded, ―I would say probably Friday.‖ Rolfe testified she did not regularly smoke

marihuana, but admitted she had tried marihuana before. During the plea hearing, the following

exchanges between Rolfe and the trial court occurred:

                THE COURT: . . . . I’ve got a question or two, if y’all don’t mind. Is the
         use of marihuana illegal and a violation of the laws of the State of Texas?

                  [Rolfe]: Yes.



our review. A trial court denies due process if it refuses to consider the entire range of punishment for an offense or
refuses to consider the evidence and imposes a predetermined punishment. Granados v. State, 85 S.W.3d 217 (Tex.
Crim. App. 2002). A timely objection is required to preserve such a complaint for review. Teixeira v. State, 89
S.W.3d 190, 192 (Tex. App.––Texarkana 2002, pet. ref’d); Washington v. State, 71 S.W.3d 498, 499 (Tex.
App.––Tyler 2002, no pet.); Cole v. State, 757 S.W.2d 864, 867 (Tex. App.—Texarkana 1988, pet. ref’d). Because
Rolfe failed to object, any complaint was forfeited.
3
 Rolfe testified she had been arrested in Tennessee for possession of stolen property, but the charges had been
dropped.

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        THE COURT: You’re telling me that with this case pending before this
court, after you have appeared before me, waived the right to a trial by jury, entered
a plea of guilty to the indictment, that you went out and violated the laws of this
state?

       [Rolfe]: Yes.

       THE COURT: And then you’re asking me to show you mercy by granting
you probation?

       ....

       THE COURT: And did you tell Ms. Choice that you knew how to do it
because you had done the same thing before with your sister who was working at
Kohl’s Department Store?

       [Rolfe]: No, I don’t have a sister.

        THE COURT: Well, I guess the police officer must not have got it right.
Let’s go to page 5 of the police offense report, State’s Exhibit 2. I’m looking at the
second full paragraph. ―Ms. Choice said‖ -- this is the interview, this is the police
offense report filled out by the Detective Greg Stewart. And it is dated December
-- or printed December the 7th, 2005. ―Ms. Choice said when she got home that
night, Phillip and Keisha‖ -- that’s you, Keisha?

       [Rolfe]: Yes.

        THE COURT: ―were outside. Keisha had a checkbook that she had taken
from the purse at Mervyn’s. Keisha and Phillip said they had seen some things in
Mervyn’s they wanted. They asked Ms. Choice to let them use the checks to make
purchases. Keisha said she knew how to do it because she had done the same thing
before with her sister who was working at Kohl’s Department Store. Ms. Choice
said that her mother told her to go ahead and let Phillip and Keisha use the checks.‖
That wrong?

       [Rolfe]: Yes.

       THE COURT: Police officer just made that up?


                                          4
                [Rolfe]: I didn’t speak to him. But that’s her story.

                ....

              THE COURT: . . . . Let me tell you something, you’re asking this Court
       for mercy, and if I get the idea that you’re not telling me the truth, I’m going to tell
       you what’s getting ready to happen to you, I’m going to send you to the
       penitentiary. Do you understand me?

On redirect, Rolfe testified she had never talked with the investigating police officer. Rolfe’s

mother testified that Rolfe did not have a sister. At the conclusion of the plea hearing, the trial

court stated:

       I’m not comfortable with this case based on how that report reads. I’m certainly
       not comfortable when someone’s standing before -- sits here and tells me they
       violated the law after having come before this Court and entered a plea of guilty and
       waived the right to trial by jury.
               I’m going to take this one under advisement for some period. I don’t know
       how long. I really wish we had that co-defendant as I read her statement. Her,
       the co-defendant, Choice, she flat puts it on this defendant without any hesitation.
               I’m just not -- I’m not comfortable that I’ve gotten the truth today. So it’s
       under advisement. Let you know when I make the decision coming back here.

At the later sentencing hearing, the State made the following statement:

       The State feels that the witnesses were being honest. I understand there was a
       slight discrepancy in the police report, I think it’s the way it was read that threw
       everybody off. I think she’s a candidate for probation, Judge, I don’t do that very
       often, but I think it might be possible in this case.

       The Texas Court of Criminal Appeals has noted that a trial judge may question a witness to

―elicit information or to clarify issues.‖ Morrison v. State, 845 S.W.2d 882, 903 (Tex. Crim. App.

1992); see Navarro v. State, 477 S.W.2d 291 (Tex. Crim. App. 1972) (fact a trial judge questions


                                                  5
witness to clarify witness’ testimony does not indicate bias). The record neither shows that the

trial court imposed a ―predetermined‖ punishment, see Brumit v. State, 206 S.W.3d 639 (Tex.

Crim. App. 2006), nor does it show that the trial court did not consider the possibility of

community supervision. The record shows that the trial court merely believed community

supervision was not appropriate for this particular defendant’s situation.

       Although the trial court expressed doubts as to whether Rolfe was being truthful at the

earlier hearing, the trial court did not express any doubts as to Rolfe’s truthfulness after the State

stated it believed the witnesses were truthful. The trial court provided the following reason for its

sentencing decision:

               You chose during the pendency of the sentencing from the time you pled
       guilty up to between that date and August 14th, to go out and violate the law again
       by the use of marijuana.
               That is not the type of person this Court considers worthy of the grant of
       mercy, and I refuse to do it, and have consistently said that is the position I believe
       in strongly. I’m not going to change for this particular case. I look at each one of
       them.
               But I’m not going to grant you probation. I’m going to send you where
       you sent yourself the day you chose -- the day you chose to use marijuana while
       awaiting sentencing. You pronounced the sentence of state jail confinement
       against yourself, and I assess your punishment at nine calendar months’
       confinement . . . .

The trial court’s stated reason for not placing Rolfe on community supervision was her admitted

drug use. While we may not have reached the same decision as the trial court, the decision was

within the trial court’s discretion, and Rolfe has failed to make a clear showing the trial court failed

to remain neutral.


                                                   6
         For the reasons stated, we overrule Rolfe’s sole issue and affirm the judgment of the trial

court.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:         August 1, 2011
Date Decided:           August 3, 2011

Do Not Publish




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