Affirmed as Modified and Opinion Filed March 17, 2014




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00076-CR

                             ARTURO HERNANDEZ, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 282nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F11-54818-S

                                           OPINION
                         Before Justices FitzGerald, Fillmore, and Evans
                                 Opinion by Justice FitzGerald
       Appellant was charged by indictment with continuous sexual assault of a child younger

than fourteen years of age. He pled not guilty, and a jury convicted him of the lesser included

offense of indecency with a child. The trial court assessed punishment at twenty years’

imprisonment and a $3,000 fine. In four issues on appeal, appellant complains about the trial

court’s assessment of punishment; specifically, appellant contends the trial court refused to

consider the full range of punishment in violation of his rights to due process and due course of

law under the United States and Texas Constitutions. In a fifth issue, appellant asserts there is

insufficient evidence in the record to support the trial court’s award of court costs. We reform the

trial court’s judgment to reflect the correct amount of the fine. As reformed, we affirm.

                                        BACKGROUND
       Because appellant’s complaints involve sentencing, we limit our recitation of the facts

pertaining to the guilt/innocence stage of trial.

       Appellant was charged with continuous sexual assault of his stepdaughter A. A testified

appellant first forced his penis into her vagina when she was in the third or fourth grade. A

further testified that this occurred “a lot of times.” Appellant also touched A’s “part,” forced A to

touch his penis with her hand, and tried but failed to force his penis into her anus. A was in the

seventh grade the last time that appellant sexually assaulted her.

       Eventually, A told a teacher she was having problems at home. The teacher filed a report

with Child Protective Services and A was referred to a school counselor. Appellant waived his

rights and consented to a police interview. He denied knowing why A would say he touched her

private parts, and speculated that perhaps A misinterpreted a movement he made. He also told

the police that A grabbed his hand and placed it near her “private area.” When asked about A’s

statement that his “part” had touched her “part,” and about the possibility that his DNA might be

recovered during A’s forensic rape exam, appellant stated, “Maybe I was even naked, that I went

to the bathroom something like that and she came and sat on me, because she always did that.”

Appellant also said that he did not remember anything happening, but if it did, he was doped up

on medication at the time.

       The defense argued that A was a troubled young girl whose attitude and behavior

changed as she became a teenager. Appellant testified that A was disrespectful and developed

attitude problems. He further testified that he was not guilty of any wrongdoing.

       The court submitted a jury charge on continuous sexual assault, aggravated sexual

assault, and indecency with a child. The jury found appellant guilty of indecency with a child,

and appellant elected to have the court determine punishment.

                                             ANALYSIS

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Due Process and Due Course of Law

          In his first four issues, appellant complains about the trial court’s assessment of

punishment. Specifically, he argues the trial judge abandoned his neutral and detached role and

failed to consider the full range of punishment in violation of his rights to due process and due

course of law.1

          During the punishment hearing, the judge reminded appellant that he had been found

guilty of the second-degree felony of indecency with a child. The judge stated, “You were

originally charged with continuous sexual abuse of a young child, which has a minimum

punishment of 25 years . . . all the way up to life, and that’s without any parole. But the jury . . .

found you guilty of the second-degree felony, and like I said, that has a punishment range of a

minimum of two years up to twenty years in prison.” The judge explained that he had received

and reviewed the pre-sentence report, and was ready to make his decision on punishment. When

asked, appellant stated that he understood why he was there.

          Defense counsel called appellant to testify. Appellant stated that he wanted to appeal, and

planned to hire a new lawyer. Appellant also told the court:

          First of all, I don’t know if you remember but I wanted to change my attorney
          before we went to trial, and you said to me no, because everything was ready to
          go to trial that day. And I have my reasons to change attorneys, because when he
          told me that we are going to trial, I thought that he had everything ready to go to
          trial. I agree that he did a great job with whatever he had in his hands at that time.

Then, appellant showed the judge printouts from a Facebook account that he believed negated

statements the victim had written in her journal about contemplating suicide. The judge agreed to

look at the documents, and after doing so, told appellant they had no bearing on “what we’re

doing today.” Counsel reminded appellant that the focus of the hearing was the determination of


     1
        Appellant does not argue that the Texas Constitution provides any greater protection than the United States Constitution so we address
these claims in tandem.



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a fair sentence, and he should use the time to assist the judge in determining what a fair

punishment would be. Appellant produced a letter from his mother that was written in Spanish,

and described its contents to the court:

               The beginning, this is my mother, Maria De Carmen Garcia De La Cruz,
               my name, and this letter was made in a police office in Mexico. My
               mother was sharing with the girl and taking care of her for a while, and
               she had a lot of -- the girl had a lot of confidence in my mother, and this
               what she told my mother. In here it says that the girl was telling her that
               she will go with friends and get drunk and start doing things with boys in
               the school. And also my mother is saying here that my that's one of the
               reasons that they put me aside. That's all the things that happened, but it's
               too long to explain to you. And the only thing she is talking in this letter to
               you is if you can give me the minimum punishment possible, because he is
               the only support that she has, financial support. And please take in
               consideration the pain that I'm going through and the illness I have is the
               reason I couldn't make it to the trial. And the other thing I'm telling you is
               she does not have any other children, support to help her. And she is old.
               She's 70 years old and ill.

       When defense counsel asked appellant if there was anything he wanted to ask the judge

about punishment, appellant requested the minimum punishment so that he could continue to

assist his mother. Appellant stated, “If your opinion is to give me the 20 years of punishment, I

will accept it if that’s your opinion sincerely.” After both sides gave closing argument, the judge

sentenced appellant. In this regard, the trial judge stated:

               I think your lawyer did an excellent job, because frankly, under the
               evidence that I heard, I would have found you guilty of the continuous
               sexual abuse of a child. That means I would have started with a minimum
               of 25 years, which would be without parole. I don’t know what I would
               have sentenced you to, but I’m not going to waste my time or your time in
               thinking about what I might have done.

               The jury, based on what they heard, did not find you guilty of continuous
               sexual abuse. That’s why I say your lawyer did you a really good job.
               Now they did find you guilty of the indecency with a child. I believe that
               the acts that I heard you performed on that girl are worthy of a twenty-year
               sentence, so I am going to sentence you to the maximum of twenty years.

Appellant did not object to the sentence or file a motion for new trial. He now contends the

judge’s failure to remain neutral and detached and to consider the full range of punishment

                                                 –4–
violates his rights to due process and due course of law. The State maintains appellant forfeited

his right to complain about any errors because he failed to timely object. Appellant

acknowledges his failure to object, but insists there is no forfeiture because the court’s allegedly

improper comments coupled with the sentence imposed demonstrate the court’s bias, partiality,

and failure to consider the entire range of punishment, and therefore, he was not obligated to

object.

          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)); Phillips v. State, 887 S.W.2d 267, 270 (Tex. App.—Beaumont 1994, pet. ref’d). A

trial court denies due process when it arbitrarily refuses to consider the entire range of

punishment for an offense or refuses to consider mitigating evidence and imposes a

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

the contrary, we presume that the trial judge was neutral and detached when he assessed the

defendant’s punishment, and that he considered the full range of punishment. See Brumit v. State,

206 S.W.3d 639, 644–45 (Tex. Crim. App. 2006).

          The parties have a right to a fair trial. Dockstader v. State, 233 S.W.3d 98, 108 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d). One of the most fundamental components of a fair

trial is a neutral and detached judge. Id. A judge should not act as an advocate or adversary for

any party. Id.

          When an appellant claims judicial bias, we review the record to see if it shows the

judge’s bias denied him due process of law. Armstrong v. State, No. 05–10–01245–CR, 2011

WL 6188608, at *5 (Tex. App.—Dallas Dec. 14, 2011, no pet.) (not designated for publication).

The terms “bias” and “prejudice” do not encompass all unfavorable rulings towards an

                                                –5–
individual, but instead 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.”

Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d) (citing

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, 233 S.W.3d at 108. While

judicial bias is structural error, “judicial rulings alone almost never constitute a valid basis for a

bias or partiality motion,” and opinions that a judge forms during trial do not necessitate recusal

“unless they display a deep-seated favoritism or antagonism that would make fair judgment

impossible.” Liteky, 510 U.S. at 555; see also Garcia v. State, 246 S.W.3d 121, 147 (Tex.

App.—San Antonio 2007, pet. ref’d). Moreover, “expressions of impatience, dissatisfaction,

annoyance, and even anger” do not establish bias or partiality. Id. at 555–56.

       Having reviewed the record, viewing the trial judge’s remarks in context, we conclude

the record does not establish bias, partiality, or that the judge failed to consider the full range of

punishment. Appellant began his testimony by expressing dissatisfaction with trial counsel and

stating that he planned to hire a new lawyer. The judge’s remarks appear to be in response to

these comments. The judge stated that he thought the lawyer did a good job because he was able

to persuade the jury to convict appellant of the lesser included offense of indecency with a child,

which the judge acknowledged carried a lower range of punishment than the charged offense.

The judge mentioned that he thought the evidence supported the more serious offense only in the

context of explaining why he thought defense counsel had done a good job. The judge further

explained that he was imposing the maximum sentence for indecency with a child based on the

evidence he heard at trial. The judge’s comments demonstrate that he was aware of the range of

                                                 –6–
punishment, and there is nothing that rebuts the presumption that he considered this range.

Therefore, we conclude the record does not reflect that the judge was biased, partial, or failed to

consider the full range of punishment. Appellant’s first four issues are overruled.

Court Costs

           In his final issue, appellant contends the evidence is insufficient to support the trial

court’s assessment of $240 in court costs because the record does not contain a copy of the bill of

costs. After appellant filed his brief, we ordered the District Clerk’s office to file a supplemental

bill of costs and the clerk complied.

           The record before us now contains a bill of costs. Appellant’s complaints have been

addressed and rejected. See Johnson v. State, No. PD-0193-13, 2014 WL 714736, at *4–8 (Tex.

Crim. App. Feb. 26, 2014); Coronel v. State, 416 S.W.3d 550, 555–56 (Tex. App.—Dallas 2013,

pet. ref’d). Appellant’s fifth issue is overruled.

Reformation of the Judgment

           The State requests that we reform the judgment to reflect the $3,000 fine imposed by the

court.2 This Court has the power to modify the judgment of the court below to make the record

speak the truth when we have the necessary information to do so. TEX. R. APP. P. 43.2(b). Bigley

v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Appellate courts have the power to

reform whatever the trial court could have corrected by a judgment nunc pro tunc where the

evidence necessary to correct the judgment appears in the record. Asberry v. State, 813 S.W.2d

526, 529 (Tex. App.—Dallas 1991, pet. ref’d).




     2
        The State also asks that we reform the cost assessment to include certain additional costs. The face of the record, however, does not reflect
a clerical error in this regard. Moreover, this record does not reflect whether appellant has paid his court costs and, therefore, we cannot modify
the judgment to add additional costs. See TEX. CODE CRIM. PROC. ANN. art. 103.007 (West 2006); see also Houston v. State, 410 S.W.3d 475,
480 n. 6 (Tex. App. —Fort Worth 2013, no pet.)




                                                                       –7–
       Here, when the trial court orally pronounced appellant’s sentence of twenty years’

confinement, the court further pronounced, “I’m also ordering a $3,000 fine and that will be paid

by time served and to be served.” The written judgment, however, does not reflect this fine.

Therefore, we reform the judgment to include the $3,000 fine. As reformed, the trial court’s

judgment is affirmed.




                                                    /Kerry P. FitzGerald/
                                                    KERRY P. FITZGERALD
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47
130076F.U05




                                              –8–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

ARTURO HERNANDEZ, Appellant                         On Appeal from the 282nd Judicial District
                                                    Court, Dallas County, Texas
No. 05-13-00076-CR         V.                       Trial Court Cause No. F11-54818-S.
                                                    Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee                        Justices Fillmore and Evans participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to reflect the imposition of a $3,000 fine.
As REFORMED, the judgment is AFFIRMED.


Judgment entered March 17, 2014




                                                    /Kerry P. FitzGerald/
                                                    KERRY P. FITZGERALD
                                                    JUSTICE




                                              –9–
