            NUMBERS 13-12-00641-CR and 13-12-00642-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

VICENTE MARTINEZ
A/K/A VICENTE MARTINEZ JR.,                                                      Appellant,

                                                  v.

THE STATE OF TEXAS,                                                              Appellee.


                      On appeal from the 347th District Court
                            of Nueces County, Texas.


                             MEMORANDUM OPINION
                 Before Justices Garza, Benavides, and Perkes
                   Memorandum Opinion by Justice Perkes
        Vicente Martinez a/k/a Vicente Martinez Jr., appellant, appeals two theft

convictions,1 state-jail felonies, punished as second-degree felonies because of prior


        1
         In appellate cause 13-12-641-CR, appellant was convicted for the theft of “CLOTHING AND
ACCESSORIES, of the value of less than $1,500.00, from KOHL’S . . . .” In appellate cause
13-12-642-CR, appellant was convicted for the theft of “TOOLS, of the value of less than $1,500.00, from
AUTOZONE . . . .”
offenses. See TEX. PENAL CODE ANN. §§ 31.03 (a), (b), (e) 4 (D) (West 2011). After

appellant pleaded guilty to theft in each cause (without a plea agreement), the trial court

sentenced appellant to ten years’ confinement in the Texas Department of Criminal

Justice, Institutional Division. The trial court ordered the sentences to run concurrently.

By a single issue in each cause, appellant argues the trial court denied him due process

when the judge made comments demonstrating partiality2 and failed to consider the full

range of punishment. We affirm.

                                            I.   BACKGROUND

        In the trial court, the two causes were heard together. Appellant was charged with

theft of items from each of two stores, with a value of less than $1,500 per charge. After

appellant entered his guilty plea for each cause, the trial court received evidence on the

issue of punishment. Evidence of appellant’s criminal history was presented to the court.

Appellant testified in his own defense and explained he believed he should be sentenced

to a drug-rehabilitation program instead of prison because his drug problem was the

impetus for his criminal acts. After the State cross-examined appellant, and before

sentencing, the following exchange occurred between appellant and the trial court:

THE COURT:              Have you received any type of drug help on your own when
                        you’ve been out?

[APPELLANT]:            Since I been out?

THE COURT:              No, no, no. Any time in your life when you were not
                        committing one of these three pages worth of crimes, have
                        you received any type of help?

[APPELLANT]:            No.

        2
          In his brief, appellant complains of the trial court’s “impartiality.” However, it is clear from
reading appellant’s brief as a whole that his complaint concerns alleged partiality.
                                                    2
THE COURT:           You never ever thought—this is what kills me when you all
                     come in here and you say I got a drug problem and I need
                     some help because we never hear that when you are out on
                     the street. It is only when I am about to send you to prison for
                     up to twenty years that all of a sudden we hear that. So it
                     makes the judges kind of jaded, if you can understand that.

       Immediately following this exchange, appellant explained to the trial court that he

had participated in “AA” voluntarily and attended church, but later “relapsed.” He also

explained that he called a rehabilitation facility but could not receive help because he

lacked the means to pay for the rehabilitation.

       The trial court declined to place appellant on probation and sentenced him to ten

years’ confinement, citing appellant’s extensive criminal history, his past probation, and

the trial court’s belief that he had not sought help for a drug problem on his own. The trial

court also expressed its belief that if appellant really wants help, he can get it in prison.

                                          II. ANALYSIS

       Appellant argues the trial court’s comments, quoted above, demonstrate partiality

and the trial court’s failure to consider the full punishment range, which deprived him of

due process of law. We disagree.

       Due process requires a neutral and detached hearing body or officer. Brumit v.

State, 206 S.W.3d 639, 644–45 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli, 411

U.S. 778, 786 (1973)).      However, absent a clear showing of bias, a trial court is

presumed to have been neutral and detached. Id.; Earley v. State, 855 S.W.2d 260, 262

(Tex. App.—Corpus Christi 1993, pet. dism’d., 872 S.W.2d 758 (1994)). As long as the

trial court exercises its judgment in a constitutional manner, past judicial experience may

be relevant to sentencing. See State v. Hart, 342 S.W.3d 659, 675 (Tex. App.—Houston
                                              3
[14th Dist.] 2011, pet. ref’d), cert. denied, 133 S.Ct. 121 (2012); see also Barclay v.

Florida, 463 U.S. 939, 950 (1983) (plurality op.).

       We recognize that appellant did not object to the trial court’s comments in the trial

court and that a timely, specific objection is generally necessary to preserve a complaint

for appellate review. See TEX. R. APP. P. 33.1. However, because the record does not

show the trial court acted improperly in sentencing, we need not reach the question of

whether an objection was necessary to preserve error in this case. See Brumit, 206

S.W.3d at 644–45 (“We need not decide today whether an objection below is required to

preserve an error of this nature on appeal because the record here does not reflect

partiality of the trial court or that a predetermined sentence was imposed.”).

       In Brumit, the Court of Criminal Appeals held that a trial court’s comments that an

earlier case made it think that anyone who ever harmed a child should be put to death did

not reflect bias, partiality, or the failure of the trial court to consider the full punishment

range when the record showed otherwise. See 206 S.W.3d at 644–45. As in Brumit,

the record in this case does not show the trial court acted partially or without considering

the full punishment range. See id.; cf. Earley, 855 S.W.2d at 262–63 (concluding trial

court violated due process when it expressed desire to impose life sentence before it had

received any evidence). Instead, the record shows that the trial court considered the

evidence of appellant’s prior criminal history, probation, and failure to seek drug

treatment, and that these factors influenced the sentence imposed. The trial court stated

the punishment range, but did not impose the maximum sentence of twenty years per

offense, opting instead to sentence appellant to ten years’ confinement in each case, with

the sentences to run concurrently.           Because appellant has not overcome the
                                              4
presumption that the trial court was neutral and detached, we overrule his sole issue in

each appeal. See Brumit, 206 S.W.3d at 645.

                                      III. CONCLUSION

       We affirm the trial court’s judgments.



                                                 GREGORY T. PERKES
                                                 Justice

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

Delivered and filed the
11th day of April, 2013.




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