In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00516-CR
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BRANDI LEIGH BERWICK, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 12-14971
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MEMORANDUM OPINION
Pursuant to a plea bargain agreement, appellant Brandi Leigh Berwick1 pled
guilty to the offense of theft of property valued at less than $1,500 while having
two or more prior theft convictions, a state jail felony. See Tex. Penal Code Ann. §
31.03(e)(4)(D) (West Supp. 2013). The trial court adjudged Berwick guilty and
assessed her punishment at two years of imprisonment, but suspended Berwick’s
sentence and placed her on community supervision for five years. Thereafter, the
1
Brandi Leigh Berwick is also known as Brandi Berwick.
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State filed a motion to revoke Berwick’s community supervision. During the
hearing on the motion to revoke, Berwick pled “true” to violating five conditions
of her community supervision. At the conclusion of the revocation hearing, the
trial court found that Berwick violated the conditions of her community
supervision, revoked Berwick’s community supervision, and sentenced Berwick to
two years of confinement in state jail. Berwick timely filed a notice of appeal.
Failure to Consider Full Range of Punishment
In her first issue, Berwick argues that the trial court violated her right to due
process by arbitrarily refusing to consider the entire range of punishment for her
offense. Berwick contends that the trial court was not a fair and impartial tribunal
because the trial judge “berated” her during the revocation hearing and sentenced
her to the maximum term without considering a lesser sentence and without
considering mitigating circumstances presented by Berwick. The State argues that
Berwick waived this argument by failing to object at the trial court level. The
State further argues that even if no waiver occurred, there is nothing in the record
to substantiate Berwick’s claim that the trial court failed to consider the entire
range of punishment.
The Due Process Clause of the Fourteenth Amendment provides that no
State may “deprive any person of life, liberty, or property, without due process of
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law[.]” U.S. CONST. amend. XIV, § 1. Similarly, the Texas Constitution provides
that “[n]o citizen of this State shall be deprived of life, liberty, property, privileges
or immunities . . . except by the due course of the law of the land.” Tex. Const. art.
I, § 19. “The touchstone of due process is fundamental fairness.” Euler v. State,
218 S.W.3d 88, 91 (Tex. Crim. App. 2007). Accordingly, “[t]he Constitutional
mandate of 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)). A trial court denies a
defendant due process by arbitrarily refusing to consider the entire range of
punishment for an offense. Ex parte Brown, 158 S.W.3d 449, 454, 456 (Tex.
Crim. App. 2005). Likewise, a trial court denies a defendant due process when it
refuses to consider mitigating evidence and imposes a predetermined punishment.
Buerger, 60 S.W.3d at 364. However, in the absence of a clear showing to the
contrary, a reviewing court must presume that the trial court was neutral and
detached in sentencing the defendant and considered the full range of punishment.
See 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) (op.
on reh’g).
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In order to preserve appellate review of a complaint that the trial court
arbitrarily refused to consider the entire range of punishment, the defendant must
make a timely objection at the trial court level. See Tex. R. App. P. 33.1; Teixeira
v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref’d). “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, 217 (Tex. Crim. App. 2002). In
the present case, the record does not reflect that Berwick objected to the trial
court’s alleged failure to consider the full range of punishment at the trial court
level. Nevertheless, Berwick argues that under the Texas Court of Criminal
Appeals’s decision in Ex parte Brown, she was not required to make a
contemporaneous objection because the evidence that the court failed to consider
the full range of punishment was ambiguous. See 158 S.W.3d at 453 & n.3. Even
if we were to assume that Berwick’s contention is correct and that she was excused
from the long-standing rule that errors in sentencing are waived by the failure to
object, we conclude that the record does not support Berwick’s argument that the
trial judge arbitrarily refused to consider the entire range of punishment for her
offense.
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As noted, Berwick pled guilty to the offense of theft of property valued at
less than $1,500 while having two or more prior theft convictions, a state jail
felony. See Tex. Penal Code Ann. § 31.03(e)(4)(D). The punishment range for a
state jail felony is 180 days to two years of confinement in state jail and a fine of
up to $10,000. See id. § 12.35(a)-(b) (West Supp. 2013). During the revocation
hearing, the trial judge advised Berwick of the applicable punishment range and
asked her questions to ensure she understood that she could be sentenced anywhere
within that range if she pled true to the allegations in the State’s motion to revoke.
Further, the record of the revocation hearing reflects that the trial judge
heard arguments from both the prosecutor and defense counsel before deciding to
revoke Berwick’s community supervision and assess punishment. In support of its
request for revocation, the State pointed to multiple aggravating circumstances,
including Berwick’s criminal history, prior probation revocation, and continued
criminal behavior while on community supervision. Specifically, the record
reflects that Berwick had two prior misdemeanor convictions for theft in 2006 and
2007 and two convictions for felony credit card abuse in 2011. Although Berwick
had received probation for at least one prior offense, that probation was later
revoked. Further, the record reflects that approximately one month after being
placed on probation for the underlying offense of felony theft, Berwick committed
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the additional offense of forgery of a financial instrument by attempting to
negotiate a counterfeit check. During the revocation hearing, Berwick pled true to
committing the forgery offense.
In mitigation of her offenses, Berwick argued that her criminal behavior
while on probation had been fueled by an addiction to drugs, and she requested to
be placed in JCDI 2 rather than be sent to state jail. The trial judge, however, noted
that Berwick had previously been ordered to attend treatment at SAFPF3and
explained to Berwick: “[I]n all fairness to you, so you know, JCDI is seldom, if
ever, an option after you went to SAFPF. . . . [I]f you fail SAFPF, then failed to
progress from SAFPF, then, I mean, that’s as intensive as we can do.” The only
other mitigating circumstance raised during the revocation hearing was that
Berwick had given birth to a son approximately two months before the revocation
2
“JCDI” is an acronym for “Jefferson County Drug Intervention.” Jefferson
County CSCD: Divisions of the Jefferson County CSCD, available at
http://www.co.jefferson.tx.us/adult_prob/AdultAbout.htm (last visited September
3, 2014). JCDI consists of “out-patient drug and alcohol treatment in a Drug Court
setting for clients who are addicted or abusing substances.” Id.
3
“SAFPF” is an acronym for “Substance Abuse Felony Punishment
Facility.” Jefferson County CSCD: Divisions of the Jefferson County CSCD,
available at http://www.co.jefferson.tx.us/adult_prob/AdultAbout.htm (last visited
September 3, 2014). SAFPF is “[a] long term treatment program for drug and
alcohol addiction consisting of 6-12 months in a SAFPF Facility followed by
approximately 90 days in a residential treatment center and finishing with up to
nine months in a supportive out-patient program.” Id.
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hearing. The record before the trial court, however, reflected that Berwick had
tested positive for methamphetamines, amphetamines, benzodiazepines, opiates,
and tetrahydrocannabinol at the time she gave birth to her son; that her son was
born at twenty-seven weeks gestation (thirteen weeks premature) with severe
bleeding of the brain; that her son tested positive for at least one illegal substance
at birth; that her son remained in critical condition at the hospital as of the time of
the revocation hearing; and that Child Protective Services had opened a case to
investigate Berwick. Berwick admitted during the revocation hearing that both she
and her infant son had tested positive for drugs at the time her son was born, but
denied that the drugs had anything to do with the child’s premature birth or his
extensive medical problems.
Nothing in the record suggests that the trial judge refused to consider the
mitigating circumstances presented by Berwick during the revocation hearing.
Likewise, nothing in the record indicates that the trial judge imposed a
predetermined punishment or arbitrarily refused to consider the entire range of
punishment in assessing Berwick’s sentence. Instead, the record reflects that the
trial judge listened to the arguments presented by both sides, reviewed the evidence
in the record before him, and determined that two years was an appropriate
punishment, particularly considering Berwick’s prior convictions, her continued
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failure to comply with the conditions of her community supervision, and her
previous stint in SAFPF. Further, the judge’s comments during the revocation
hearing demonstrate that he was aware of the range of punishment for the charged
offense, and there is nothing in the record that rebuts the presumption that the trial
judge considered this range in assessing Berwick’s punishment. We conclude,
therefore, that Berwick has not met her burden of demonstrating that the trial judge
arbitrarily failed to consider the full range of punishment.
We also find nothing in the record to establish that the trial judge was biased
or prejudiced or otherwise failed to remain detached and neutral during the
revocation hearing. “[T]he terms ‘bias’ and ‘prejudice’ do not encompass all
unfavorable rulings towards an individual, or her case[.]” Abdygapparova v. State,
243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). Rather, such
terms “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.’” Id. (quoting 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 v. State, 233 S.W.3d 98,
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108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Further, “expressions of
impatience, dissatisfaction, annoyance, and even anger” do not establish bias or
partiality. Liteky, 510 U.S. at 555-56. Rather, the defendant must show a “‘deep-
seated favoritism or antagonism that would make fair judgment impossible.’”
Abdygapparova, 243 S.W.3d at 198 (quoting Liteky, 510 U.S. at 555).
Berwick argues that the trial court’s failure to remain detached and neutral is
evidenced by the fact that the trial judge “berated” her during the revocation
hearing. Berwick, however, fails to identify any specific statement, action, or
inaction by the trial judge that she contends constitutes a failure to remain impartial
or a deep-seated favoritism or antagonism that would make fair judgment
impossible. After conducting an independent review of the record, we do not find
anything in the record indicating that the trial court failed to remain detached and
neutral during the revocation hearing. While the trial judge’s comments about
Berwick’s drug use while she was pregnant reflect the trial judge’s concern over
the extent of Berwick’s difficulty in controlling her behavior and ability to make
the right choices, these comments do not reflect that the trial judge failed to
consider the law and the relevant facts in a neutral and detached manner. We
perceive no denial of due process under the state or federal constitution.
Accordingly, we overrule Berwick’s first point of error.
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Cruel and Unusual Punishment
As part of her first point of error, Berwick also argues that the trial judge
punished her for being a “drug addict,” which, she contends, “constitutes ‘cruel
and unusual punishment’ in violation of the Eighth and Fourteenth Amendments to
the United States Constitution.” Berwick, however, did not object to her sentence
either at the time it was imposed or in a motion for new trial. It is well-established
that even constitutional rights, including the right to be free from cruel and unusual
punishment, may be waived by the failure to raise a timely objection in the trial
court. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);
Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). By
failing to object in the trial court, Berwick has waived her complaint. See Tex. R.
App. P. 33.1. Accordingly, we overrule this point of error.
Assessment of Fine
In her second point of error, Berwick contends the trial court erred by
including a $500 fine in its written judgment when the court did not orally
pronounce the fine at the time of sentencing during the revocation hearing.
However, after the briefing in this case was filed, the parties jointly filed a
document entitled “Amendment Appellant’s Second Issue,” which states that
“upon closer inspection of the record and in accord with applicable statute and case
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law, [Berwick] and the State agree there is no error in the matter of any fine having
been assessed at final conviction in this cause.” Because Berwick concedes no
error with respect to her argument that the trial court improperly assessed a $500
fine, we need not address Berwick’s second issue on appeal. See Tex. R. App. P.
47.1. The judgment of the trial court is affirmed.
AFFIRMED .
________________________
CHARLES KREGER
Justice
Submitted on June 30, 2014
Opinion Delivered September 3, 2014
Do not publish
Before Kreger, Horton, and Johnson, JJ.
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