                                NO. 12-10-00171-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

ERIC BIRCHER,                                    §           APPEAL FROM THE 7TH
APPELLANT

V.                                               §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §           SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Eric Bircher appeals his conviction for evading arrest, for which he was sentenced to
imprisonment for ten years. In two issues, Appellant argues that the trial court erred in failing to
consider the full range of punishment. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with evading arrest and pleaded “guilty.” The
indictment further alleged that Appellant had been previously convicted of a felony. At the trial
on punishment, Appellant pleaded “true” to the enhancement allegation in the indictment.
Thereafter, Appellant‟s mother testified on his behalf. Following the argument of counsel, the
trial court found Appellant “guilty” as charged and found the enhancement allegation to be “true.”
Before sentencing Appellant, the trial judge explained that he would assess Appellant‟s
punishment based upon his belief of what a Smith County jury would do. Ultimately, the trial
court sentenced Appellant to imprisonment for ten years. This appeal followed.


                   FAILURE TO CONSIDER THE FULL RANGE OF PUNISHMENT
       In his first issue, Appellant argues that the trial court did not consider the full range of
punishment, thereby denying Appellant due process and due course of law. In his second issue,
Appellant contends that the trial court improperly assessed what the court believed a Smith County
jury would assess as punishment denying Appellant due process and due course of law. Because
these two issues are interrelated, we address them together.
       The Fourteenth Amendment provides that the state may not “deprive any person of life,
liberty, or property, without due process of law.” U.S. CONST. amend. XIV; see also TEX. CONST.
art. I, § 19. Due process requires that the trial court conduct itself in a neutral and detached
manner. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1762, 36 L. Ed. 2d 656 (1973);
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). “[A] trial court‟s arbitrary refusal to
consider the entire range of punishment in a particular case violates due process.” Ex parte
Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005); see also Brumit, 206 S.W.3d at 645.
However, absent a clear showing of bias, we presume the trial court's actions were correct.
Brumit, 206 S.W.3d at 645. Bias is not shown when (1) the trial court hears extensive evidence
before assessing punishment, (2) the record contains explicit evidence that the trial court
considered the full range of punishment, and (3) the trial court made no comments indicating
consideration of less than the full range of punishment. See id.
       In the case at hand, prior to assessing Appellant‟s punishment, the trial court stated, in
pertinent part, as follows:


                Mr. Bircher, the lawyers have heard this before, because I always try to cover it fairly early
       on. I always try to assess sentencing, when I‟m asked to do them, as if I were sitting on a jury over
       there and they were hearing the evidence and making a determination. Frankly, because I think that
       a defendant shouldn‟t be punished more harshly by a judge that sees these day in and day out, versus
       what the jury would see when they occasionally hear [them].

                On the other hand, I don‟t think a defendant should be punished less or sentenced less just
       because the judge sees them day in and day out. I always try to do what I think a Smith County jury
       would do. And, frankly, I think they would be compassionate to some of your history, the loss of a
       child in a car wreck and someone being attacked to the point of having the injuries, apparently,
       you‟ve had.

                On the other hand, they„d also be watching your criminal history and the dates and the
       particular event that brought them here and brought you here today. And your history goes back
       for 20 years, a lot of it before these events that are being used to seek that compassion from the
       sentence, whether it‟s the jury or not.

                 You‟ve been given time after time after time opportunities and, for whatever reason, even
       prior to having the injuries, you just didn‟t make very good use of them. Not often that the Court
       sees a criminal history with four felony arrests, 17 misdemeanor arrests, one felony conviction, 22
         misdemeanor convictions, several revocations.

                  You were tried on probation on quite a number of your prior cases, all of which - - may
         have missed it, but I didn‟t find a single probation that you were on that you were successful on.
         Instead, you failed on every single one. This, per my count, is your sixth evading arrest charge and
         conviction.

                  Good number - - I guess all of those prior to this one occurred prior to your attack of
         February 8th. Numerous driving with license suspended, numerous assaults, thefts, driving while
         intoxicated. The list goes on and on. Really, I think it shows to the Court, and I think it would
         show to a jury, that even prior to having the attack in 2008, you didn‟t have much interest in abiding
         by the law. And I don‟t think they would think that any of that history would deserve much
         leniency from the Court or from a jury.


         Based on these statements, Appellant argues that the trial court did not consider the full
range of punishment in assessing Appellant‟s sentence. Specifically, Appellant contends that he
could not have received deferred adjudication or regular community supervision from a jury.
Therefore, he contends that the trial court‟s reference to its doing what a “Smith County jury
would do” indicates that the court did not consider those options in assessing Appellant‟s
punishment. We disagree.1
         At the punishment hearing, the trial court asked Appellant if he recalled being told that (1)
“the range of punishment was between 2 years and 20 years in the penitentiary and up to a $10,000
fine” and (2) that was “the range the Court has to consider[.]” Appellant answered in the
affirmative. The court also indicated that it had received a copy of the presentence investigation
report and took judicial notice of it. Thereafter, Appellant called as a witness his mother, who
testified concerning the medical problems Appellant suffered as a result of having been the victim
of an assault. Appellant‟s mother further testified concerning his family, social, and criminal
history. Later, Appellant‟s attorney argued to the court that Appellant‟s prior offenses as well as
the offense at issue were the result of Appellant‟s traumatic experiences.
         The trial court made the complained of statements after hearing the evidence and
arguments of counsel. Thereafter, the trial court sentenced Appellant, stating as follows:

                   The Court assesses punishment - - I‟m not going to assess the full punishment that [the]
         State‟s argued for. I think arguing for 20 years is reasonable under a criminal history of three pages

         1
            It is unclear to this court, despite the trial court‟s explanation, why the trial court has chosen to undertake
this approach to assessing punishment. There is no basis for this methodology in the Texas Code of Criminal
Procedure, which requires little more than that the judge “announce his decision in open court as to the punishment to
be assessed.” TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(d) (Vernon Supp. 2010). The trial court‟s departure from
the requirements of the Code of Criminal Procedure, well-intentioned though it may be, is unnecessary and may serve
to invite the conclusion that the sentence imposed is not the considered opinion of the trial court judge.
         with this multitude of various convictions. But at the same time, I think a jury would have given
         some consideration to the other issues, the mitigating-type of issues. I don‟t find anything that
         should give a huge discount.

                  The Court‟s going to find that a reasonable sentence would be 10 years‟ [sic] confinement
         in the penitentiary, which the Court assesses . . . .


Throughout its protracted pronouncement of sentence, the trial court made no statements that
indicated bias or a refusal to consider the full range of punishment. In referring to what a “Smith
County jury would do,” the court did not address whether a jury could assess deferred adjudication
or regular community supervision.
         To prevail on his first and second issues, Appellant must show clear bias to rebut the
presumption that the trial court‟s actions were correct. See Brumit, 206 S.W.3d at 645 (holding
judge‟s comments that earlier case made him think anybody who ever harmed a child should be
put to death did not reflect bias, partiality, or failure to consider full range of punishment). In the
case at hand, the trial court considered extensive evidence before assessing punishment and
explicitly informed Appellant that his sentence would be within the range of punishment for his
offense. Appellant has not indicated in his brief any statement by the trial court, other than its
reference to “what a Smith County jury would do,” that, in Appellant‟s view, indicates a clear bias
or failure to consider the full range of punishment. Having considered the entirety of the record,
we decline to hold that this reference, without more, supports an inference that the trial court
considered only confinement as punishment for Appellant.2 Therefore, we conclude Appellant
was not denied due process and due course of law. Appellant‟s first and second issues are
overruled.3


                                                     DISPOSITION
         Having overruled Appellant‟s first and second issues, we affirm the trial court‟s judgment.

         2
         But compare TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3(a) (Vernon Supp. 2010) with TEX. CODE CRIM.
PROC. ANN. art. 42.12 § 4(e) (Vernon Supp. 2010).

         3
            The State contends that Appellant failed to properly preserve error by making a timely objection to the trial
court. Appellant argues that failure to consider the entire range of punishment is a structural error and need not be
preserved by contemporaneous objection. We need not decide whether an objection in the trial court was required to
preserve this type of error on appeal because the record in this case does not reflect bias or that the trial judge did not
consider the full range of punishment. See Brumit v. State, 206 S.W. 3d 639, 644-45 (Tex. Crim. App. 2006)
(declining to reach the preservation issue because, addressing the merits, it found that the record did not reflect
partiality of the trial court).
                                                                JAMES T. WORTHEN
                                                                   Chief Justice

Opinion delivered July 29, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)
