                         NUMBER 13-13-00548-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

RUSSELL GLEN HORELICA,                                                      Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 329th District Court
                        of Wharton County, Texas.


                         MEMORANDUM OPINION
               Before Justices Garza, Benavides, and Perkes
                 Memorandum Opinion by Justice Perkes
      Appellant Russell Glen Horelica appeals his conviction for injury to a child, a

second-degree felony. See TEX. PENAL CODE ANN. § 22.04(e) (West, Westlaw through

2013 3d C.S.). By a single issue on appeal, appellant argues that the trial court violated

his right to due process by sentencing him to ten years of confinement in the Texas
Department of Criminal Justice, Institutional Division, when it revoked his community

supervision for this offense. See U.S. CONST. amend. XIV. According to appellant, the

trial court failed to consider the entire punishment range—two to twenty-years—and

instead sentenced him to ten years’ confinement because that was the term of his

community supervision. We affirm.

                                      I. BACKGROUND

       On May 27, 2010, appellant pleaded nolo contendere to an information alleging

that he had committed injury to a child. Pursuant to a plea-bargain agreement, he was

placed on deferred-adjudication community supervision for a term of ten years.

       On August 12, 2010, the trial court found that appellant violated the terms and

conditions of his probation. The trial court adjudicated him guilty of the offense of injury

to a child and revoked his deferred-adjudication community supervision. The trial court

suspended a ten-year prison sentence and placed appellant on community supervision

for a term of ten years.

       On February 6, 2012, the trial court issued a “Judicial Summons” commanding

appellant to appear for a determination of whether a revocation motion should be filed for

the following alleged violation: “Defendant admitted to Marihuana use on February 2,

2012 (Admission Form signed by Defendant on 02/06/12).” On February 21, 2012, a

visiting judge presided over the summons proceedings and admonished appellant that

the State would move to revoke his community supervision in the event he again violated

community-supervision conditions. At the time of the summons, appellant was warned

he could face prison time in the event of revocation.


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        On May 30, 2013, the State moved to revoke appellant’s community supervision,

alleging appellant violated three of his community-supervision conditions. 1                                At the

revocation hearing, appellant’s community-supervision officer testified that appellant

twice admitted to her that he had used marihuana while on community supervision. In

this regard, the State presented two “Admission Forms” wherein appellant admitted to

using and consuming an illegal drug; namely, marihuana, on each February 2, 2012 and

March 18, 2013. The trial court found that appellant violated the terms and conditions of

his community supervision and heard evidence on sentencing.2

        During the punishment phase, the State presented evidence that appellant used

marihuana recreationally, but that he was not a drug addict in need of rehabilitation.

Appellant presented evidence from two family members that appellant was a caretaker

for his elderly mother. Appellant’s mother had suffered a disabling stroke and lived alone

with appellant prior to his arrest. After listening to the evidence and counsels’ closing

arguments, the trial court sentenced appellant to ten years’ confinement. In sentencing

appellant, the trial court stated, “Your original agreement when you were placed on



        1   In its motion, the State alleged appellant:

                 [1] failed to . . . totally abstain from the use or consumption of . . . any kind or any
        substance capable of or calculated to cause intoxication or the illegal use of any controlled
        substance, to-wit: the defendant on or about February 6, 2012, admitted to CSO Linda
        Kerzee and CSO Rebecca Crabb to the use of marihuana on February 2, 2012; . . . [2]
        failed to . . . totally abstain from the use or consumption of . . . any kind or any substance
        capable of or calculated to cause intoxication or the illegal use of any controlled substance,
        to-wit: the defendant on or about May 23, 2013, admitted to CSO Linda Kerzee and CSO
        Rebecca Crabb to the use of marihuana on May 18, 2013; . . . [3] On or about the 2nd day
        of February, 2012, defendant did violate a lawful order of the judge of the 329th Judicial
        District Court, Wharton County, Texas, issued on [or] about the 12th day of August, 2010.

        2 The trial court found the first two counts to be true, but concluded that the third count was not
true because it did not include the requisite specificity.
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probation was a ten-year sentence. I hereby sentence you to ten years . . . .” Appellant

did not object to the sentence in the trial court and did not file a motion for new trial

complaining of the sentence.

                                 II. DUE PROCESS CHALLENGE

         By his sole issue, appellant argues that the trial court violated his “due process

rights” by not considering the entire punishment range for his offense. See U.S. CONST.

amend. XIV. The State argues (1) appellant did not preserve error for review because

he failed to object in the trial court; and (2) appellant has not clearly demonstrated the

trial court arbitrarily failed to consider the full punishment range. We agree with the

State.

A. Standard of Review and Applicable Law

         Whether the trial court denied appellant due process in sentencing is a question of

law which we review de novo. See Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim.

App. 2005) (en banc). A trial court denies due process if it arbitrarily refuses to consider

the entire punishment range for an offense or refuses to consider the evidence and

imposes a predetermined punishment. Teixeira v. State, 89 S.W.3d 190, 192 (Tex.

App.—Texarkana 2002, pet. ref’d); see also Cummings v. State, 163 S.W.3d 772, 776

(Tex. App.—Texarkana 2005, pet. ref’d). “Absent a clear showing of bias, a trial court’s

actions will be presumed to have been correct.” Brumit v. State, 206 S.W.3d 639, 645

(Tex. Crim. App. 2006); Earley v. State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi

1993, pet. dism’d). A ‘defendant is entitled to a probation revocation hearing before a

judicial officer who has not predetermined that probation should be revoked or that a


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particular punishment should be imposed.’ Ex parte Brown, 158 S.W.3d at 454 (quoting

Gonzales v. Johnson, 994 F. Supp. 759, 762 (N.D. Tex. 1997)).

       In order to preserve review of such a complaint, a timely objection must be made

in the trial court. Cummings, 163 S.W.3d at 776; Teixeira, 89 S.W.3d at 192; see TEX.

R. APP. P. 33.1. “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, 218 (Tex. Crim. App. 2002).

       In Hull v. State, the Texas Court of Criminal Appeals held that a defendant who

failed to object to the trial court’s imposition of a “zero tolerance” policy toward probation

forfeited his right to complain on appeal. Id. at 217. In Hull, the trial court informed the

defendant “in no uncertain terms” that it would revoke his probation and impose a prison

sentence if he violated any term of his probation. Id. at 217–18. The record showed

that the defendant understood the court’s “zero tolerance” policy to be overriding and

controlling and that the defendant failed to object at the revocation hearing. Id. at 218.

Accordingly, appellant could not complain for the first time on appeal that the trial court

denied him due process by failing to consider the entire punishment range because

appellant did not preserve that complaint for appellate review. Id.

       Three years later, the Court of Criminal Appeals did not find waiver of a similar

issue, despite the defendant’s failure to object to the trial court’s sentence. See Ex parte

Brown, 158 S.W.3d at 453 n.3. In Brown, prior to the revocation hearing, the trial court

promised to impose the maximum sentence in the event of probation revocation and

subsequently, at the revocation hearing, imposed “the maximum sentence without any


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explanation for its basis.” Id. It was impossible to determine from the record on direct

appeal whether the trial court imposed the maximum sentence for “very good reasons,”

such as the nature of the original offense and the seriousness of the probation violations,

or whether the trial court arbitrarily imposed the maximum sentence. Id. In Brown, the

defendant filed an application for writ of habeas corpus seeking review of the trial court’s

violation of his due process rights by prejudging his punishment.

       In Brown, the Court of Criminal Appeals held habeas review was proper because

the trial record, alone, was inadequate to allow the “defendant to object and present a

valid constitutional claim at the time of [the trial court’s] conduct.” Id. “As with the vast

majority of claims of ineffective assistance of counsel, the trial record [was] insufficient to

allow an appellate court to resolve the issue.” Id. at 453. The Brown Court elaborated

that extra-record evidence of whether the trial court had a pattern of prejudging

punishment and the trial court’s own statements and testimony concerning whether it

prejudged punishment would be particularly useful in resolving a due-process issue

concerning prejudgment of punishment. Id.          The Brown Court distinguished Hull as

being a case in which the prejudgment of punishment was clearly established in the trial

record so that the defendant could object in the trial court and then present the complaint

by direct appeal. See id. at 453 n.3.

B. Discussion

       In this case, appellant argues that the visiting judge’s warning (“judicial summons”)

that a motion to revoke would be filed if he violated the conditions of probation again and

the trial court’s remarks at sentencing show the trial court either prejudged punishment or


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erroneously believed it was bound to impose a ten-year sentence because appellant’s

community-supervision was for a ten-year term.            Even assuming for the sake of

argument that appellant is correct that the record shows the trial court prejudged his

punishment, appellant waived error by failing to raise this complaint in the trial court. See

TEX. R. APP. P. 33.1; Hull, 67 S.W.3d at 218.

       However, we agree with the State that this record does not show the trial court

necessarily prejudged punishment. See Ex parte Brown, 158 S.W.3d at 453 n.3 (“In this

particular situation . . . the trial record . . . is not necessarily adequate for the defendant

to object and present a valid constitutional claim at the time of conduct.”). “A trial judge

may certainly impress upon a . . . probationer the seriousness of the possible

consequences of a failure to abide by the terms and conditions of probation” so long as

he does not prejudge the outcome of a future revocation hearing. Id. at 456. Here, the

judicial summons appears to be a legitimate warning of a possible consequence for

further violating the community-supervision terms. Appellant was told the State would

file a motion revoke and he could face a prison sentence in the event of revocation.

       This leaves the trial court’s remark at sentencing, “Your original agreement when

you were placed on probation was a ten-year sentence. I hereby sentence you to ten

years . . . .” Taken alone, this statement is not necessarily indicative of a predetermined

sentence, and other evidence was taken during the punishment hearing. The record on

direct appeal, however, is insufficient to allow this Court to determine whether this




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statement shows any predetermination of appellant’s sentence. 3                           See id. at 453.

Appellant’s sole issue on appeal is overruled.

                                                III. CONCLUSION

        We affirm the trial court’s judgment.



                                                               GREGORY T. PERKES
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
1st day of May, 2014.




        3   We note that the record reflects that the trial court actively listened to the evidence presented at
the revocation hearing, promptly ruling on objections and attentively following the proceeding. While
listening to the sentencing evidence, the trial court asked the State’s witness whether a substance abuse
index test had been performed on appellant. While the witness could not testify as to the result of such a
test, she believed one had been performed and went on to explain to the trial court that appellant was a
recreational drug user as opposed to a drug addict.
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