IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1057-13
MICHAEL ANTHONY GRADO, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
OLDHAM COUNTY
K EASLER , J., delivered the opinion of the Court in which M EYERS, P RICE,
H ERVEY, C OCHRAN, and A LCALA, JJ., joined. K ELLER, P.J., filed a dissenting opinion.
W OMACK and J OHNSON, JJ., concurred.
OPINION
Michael Grado’s community supervision was revoked, and the judge sentenced Grado
to ten years’ confinement, believing that it was the statutory minimum for Grado’s offense
when in fact it was five. Grado did not object. Is the right to be sentenced by a judge who
considers the entire range of punishment subject to procedural default? Concluding that it
is a waiver-only right, we hold that it is not.
GRADO—2
Background
After Grado pleaded guilty to possession of 400 grams or more of amphetamine, the
judge sentenced him to ten years’ confinement, but suspended the punishment and imposed
community supervision for a ten-year period and assessed a $10,000 fine. Grado later
pleaded true to the violations the State alleged in its motion to revoke his community
supervision. There was no plea bargain between the parties on punishment after revocation.
Before the admission of evidence, findings on the violations, and sentencing, the parties
informed the judge of their belief on the correct punishment range applicable to Grado’s
conviction:
[State]: Your Honor, before I present any evidence, I’d just like to remind the
Court, and you’re probably aware of this already, but I just discovered
it this morning. I think the minimum punishment in this case is ten
years, because it’s over 400 grams. So I think the Court’s options here
are to either leave [Grado] on probation, or if you choose to revoke
him, the ten years is the minimum.
And I made a mistake about that earlier in my offer to [defense
counsel], and I realized this morning my mistake, and so I wanted to
bring that to the Court’s attention.
[Defense counsel]: Your Honor, addressing that issue, that is correct. I have
had an opportunity to explain that to my client and, in fact, to his
family, as well. And with that understanding, we are still proceeding
with—with the understanding that is the case.
The Court: All right.
[State]: Your Honor—
The Court: This was called a first degree felony, but it’s one of those
that’s—the punishment range is up a little above. Do you understand
that, Mr. Grado? The minimum here, punishment, is ten years. Do you
GRADO—3
understand that?
[Grado]: The minimum?
The Court: Yes. And that would also be the maximum that you could get. I
could give you—you know, what could happen here is, I can either revoke
your probation or leave you on probation. If I revoke your probation, it’s—the
minimum is ten, or the maximum—and the maximum is ten, so it’s a ten-year
sentence. Do you understand that?
[Grado]: Yes, Your Honor.
The Court: All right. Do you still wish to plead true?
[Grado]: At the mercy of the Court, yes.
At the close of evidence, the judge found the violations true and sentenced Grado to
ten years’ confinement. Grado did not object. Most likely influenced by the parties’
unanimous, but mistaken belief of the applicable law, the judge incorrectly believed that the
minimum punishment of Grado’s conviction was ten years’ confinement. Both parties
concede the error. As noted by the court of appeals, the trial court’s judgment (which the
court of appeals reformed) reflects a conviction under Health and Safety Code § 481.115.
But that section defines the degree of felony and punishment range for the possession of
Penalty Group 1 substances and establishes a minimum period of confinement of ten years.1
Grado was convicted of possessing amphetamines, a Penalty Group 2 substance,2 the
1
T EX. H EALTH & S AFETY C ODE § 481.115(a).
2
Id. § 481.103.
GRADO—4
punishment range of which is controlled by § 481.116(a).3 The possession of 400 grams or
more of a Penalty Group 2 substance carries a punishment range of lifetime confinement “or
for a term of not more than 99 years or less than 5 years.” 4
In two points of error on appeal, Grado challenged his sentence and conviction
asserting that (1) the judge arbitrarily refused to consider the correct range of punishment,
and (2) he was constructively denied effective assistance of counsel when counsel agreed
with the State’s representation of the minimum punishment. Over the State’s argument to
the contrary, the court of appeals held that, despite a lack of an objection, Grado’s first claim
could be raised for the first time on appeal.5 The court held that “the right to be sentenced
under the correct statute by a sentencing authority who has meaningfully considered the
appropriate range of punishment” falls under Marin v. State’s6 second category; a right that
“must be implemented by the [legal] system unless expressly waived” and therefore does not
require a contemporaneous objection.7 The court found that the judge’s error was harmful
under Rule of Appellate Procedure 44.2(b) and did not address Grado’s ineffective-
3
Id. § 481.116(a).
4
Id. § 481.116(e).
5
Grado v. State, No. 07-11-00468-CR, 2013 WL 3355743, *4 (Tex.
App.—Amarillo June 28, 2013).
6
851 S.W.2d 275 (Tex. Crim. App. 1993), overruled on other grounds by Cain
v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997).
7
Grado, 2013 WL 3355743 at *4.
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assistance-of-counsel claim.8 We granted the State Prosecuting Attorney’s sole ground in
its petition for discretionary review seeking review of the court of appeals’ Marin analysis.
Preservation of Error
The general requirement that a contemporaneous objection must be made to preserve
error for appeal is firmly established in Rule of Appellate Procedure 33.1.9 But the rule is
not absolute. In Marin, we held that the general preservation requirement’s application turns
on the nature of the right allegedly infringed. We separated defendants’ rights into three
categories:
• The first category of rights are those that are “widely considered so fundamental to
the proper functioning of our adjudicatory process . . . that they cannot be forfeited
. . . by inaction alone.”10 These are considered “absolute rights.” 11
• The second category of rights is comprised of rights that are “not forfeitable”—they
cannot be surrendered by mere inaction, but are “waivable” if the waiver is
affirmatively, plainly, freely, and intelligently made.12 The trial judge has an
independent duty to implement these rights absent any request unless there is an
effective express waiver.13
8
Id. at *4–5.
9
T EX. R. A PP. P. 33.1(a) (requiring that, as a prerequisite to presenting a
complaint on appeal, the record show a complaint was made to the trial court alleging
specific grounds for the objection that comply with the Rules of Evidence and that the
trial court ruled, or refused to rule on, the objection.).
10
Marin, 851 S.W.2d at 278.
11
Id. at 279.
12
Id. at 279–80.
13
Id.
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• Finally, the third category of rights are “forfeitable” and must be requested by the
litigant.14 Many rights of the criminal defendant, including some constitutional rights,
are in this category and can be forfeited by inaction.15
Rule 33.1’s preservation requirements do not apply to rights falling within the first two
categories.16 Barring these two narrow exceptions, all errors—even constitutional
errors—may be forfeited on appeal if an appellant failed to object at trial.17
The court of appeals found that the right implicated here was the right to be sentenced
by a sentencing authority who considered the appropriate range of punishment.18 Holding
that Grado was denied this right, the court of appeals held that Grado was deprived of a fair
and impartial proceeding.19 And under the unique circumstances of Grado’s case, the right
sought to be vindicated for the first time on appeal was a Marin category-two right.20
Marin Analysis
A court’s arbitrary refusal to consider the entire range of punishment constitutes a
14
Id.
15
Id. at 279.
16
See id. at 279–80.
17
Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008).
18
Grado, 2013 WL 3355743, at *4.
19
Id.
20
Id.
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denial of due process.21 And despite a judge’s wide discretion in determining the proper
punishment in a revocation hearing, due process requires the right to a hearing before a
neutral and detached hearing body.22
We can easily conclude that the right to be punished after consideration of the full
range of punishment falls outside of Marin’s first category. This right is not an absolute right
because it is waivable or forfeitable by the parties. We need to look no further than the
negotiated plea bargain to prove this truth. In a negotiated plea bargain that contemplates a
particular offense of conviction and punishment to be imposed, a defendant is expressly
giving up a whole host of rights, including the right to be sentenced by a judge considering
the entire range of punishment, and even perhaps the right to be sentenced under the
“correct” statute.23 The limitation here, of course, is that the resulting sentence must be
within the range of punishment provided by statute. In other words, the sentence may not be
illegal.24 Grado’s sentence was not; it fell within § 481.116’s range of lifetime confinement
21
Ex parte Brown, 158 S.W.3d 449, 454 (Tex. Crim. App. 2005); McClenan v.
State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983), overruled on other grounds by, De
Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004).
22
Id.; see Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).
23
See Mendez v. State, 138 S.W.3d 334, 344 (Tex. Crim. App. 2004) (“Even when the
plea is entered without waiver of trial by jury, the constitutional rights that are affected may
include the right to have the State prove guilt beyond a reasonable doubt, and the right to
confront and cross examine witnesses against the defendant.”).
24
Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Ex parte Pena, 71
S.W.3d 336, 336–37 & n.1 (Tex. Crim. App. 2002).
GRADO—8
or for a term of not more than 99 years or less than five years and a fine of up to $50,000.
We do not find this case to be squarely controlled by our previous opinions concerning
the lack of a judge’s partiality where the judge prejudged evidence or willfully imposed a
predetermined sentence.25 Indeed, Grado himself concedes below that the sentencing judge
in this case was not biased per se, but rather mistaken as to the proper range of punishment.
We agree with this assessment. By all accounts, it appears the judge attempted to
conscientiously follow the law and consider the range of punishment for Grado’s offense,
including continuing his community-supervision term. However, the judge’s mistaken belief
that the particular possession offense carried a minimum of ten-year’s confinement, together
with Grado’s underlying sentence of ten-years’ confinement, resulted in the combined
mistaken belief that upon revocation Grado faced a determinate sentence of ten years’
confinement. We find the nature of Grado’s sentencing does not equate to the intentional and
deliberate partiality that infected those judicial proceedings we previously found intolerable.
For the same reasons, we are unwilling to analogize the judge in this case to an
impartial juror in a trial’s sentencing phase as the State suggests. It is true that we have held
that a challenge for cause to a juror’s impaneling based on one of the reasons listed in Code
of Criminal Procedure Article 35.16, is forfeited if not asserted at trial.26 But as stated above,
25
See, e.g., Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005); Blue v.
State, 41 S.W.3d 129, 138–39 (Tex. Crim. App. 2000) (Keasler, J., concurring).
26
Webb v. State, 232 S.W.3d 109, 112 & n.1 (Tex. Crim. App. 2007). See State v.
Morales, 253 S.W.3d 686, 697 (Tex. Crim. App. 2008) (addressing an ineffective-
assistance-of-counsel claim and stating “the right to trial by impartial jury, like any other
GRADO—9
the circumstances surrounding Grado’s sentencing does not equate to “bias or prejudice
against any law applicable to the case upon which the defense is entitled to rely[.]” 27 The
analogy is unpersuasive because even if we were to treat the judge as a juror for error
preservation purposes, evidence of bias or prejudice against the range of punishment is
insufficient on these facts. The decidedly harder issue is categorizing this right among
Marin’s second and third categories.
The nature of the right Grado seeks to vindicate leads us to conclude that it is one that
is a significant feature of our judicial system and should be classified as a Marin category-
two right. In the absence of a defendant’s effective waiver, a judge has an independent duty
both to identify the correct statute under which a defendant is to be sentenced and the range
of punishment it carries and to consider the entire range of punishment in sentencing a
defendant irrespective of a defendant’s request that he do so. And as we have made clear,
a defendant “need make no request at trial for the implementation of such rights, as the judge
has an independent duty to implement them.”28 The unfettered right to be sentenced by a
sentencing judge who properly considers the entire range of punishment is a substantive right
necessary to effectuate the proper functioning of our criminal justice system. The Legislature
has defined, by the offense’s degree and possible punishment assigned to it, the punishment
right, is subject to waiver (or even forfeiture) by the defendant in the interest of overall
trial strategy.”).
27
See T EX. C ODE C RIM. P ROC. art. 35.16(c)(2).
28
See Marin, 851 S.W.2d at 280.
GRADO—10
all convicted offenders are exposed to for certain offenses. Failing to consider all available
punishment carries an unacceptable risk of undermining the principle that the judicial system
applies equally the range of punishment to all offenders. A contrary conclusion has the
potential of shaking the public’s perception of the fairness of our judicial system and
breeding suspicion of the fairness and accuracy of judicial proceedings. The nature of this
right is too significant to the judicial system to conclude that it is extinguished by mere
inaction.
Furthermore, the right at issue here is fundamentally different than those that we have
found forfeitable, which by and large, have been evidentiary or procedurally based.29 In
those instances, we have found that in order to enforce certain evidentiary or procedural rules
it makes sense to require either an affirmative request that they apply or, when a judge has
held that they do not, an objection as a prerequisite to appeal the lower court’s action. But
the right involved here speaks to a broader concern—the integrity of judicial sentencing
proceedings.
We also find distinguishable the cases the State relies upon in asserting that this right
is forfeitable. The State first refers us to a passage in our Aldrich v. State opinion:
“Avoidance of mistakes is neither an absolute, systemic requirement, nor a right that requires
29
See, e.g., Johnson v. State, 357 S.W.3d 653, 658 n.3 (Tex. Crim. App. 2012)
(Fifth Amendment privilege against self-incrimination); Anderson v. State, 301 S.W.3d
276, 280 (Tex. Crim. App. 2009) (confrontation and compulsory process); Proctor v.
State, 967 S.W.2d 840, 844 (Tex. Crim. App. 1998) (statute of limitations defense);
Cockrell v. State, 933 S.W.2d 73,89 (Tex. Crim. App. 1996) (improper jury argument).
GRADO—11
an affirmative waiver.”30 Aldrich involved the sentencing judge’s misapprehension of the
case’s procedural posture.31 The sentencing judge mistakenly believed that the judge who
took Aldrich’s guilty plea and found the evidence sufficient to find her guilty in fact
expressly found her guilty. Aldrich did not object to the sentencing judge’s mistake and on
appeal claimed that the judge abused his discretion by failing to allow her to withdraw her
guilty plea. In holding that Aldrich could not bring this claim for the first time on appeal, we
stated that “a court’s mistaken assumption that what usually happens in a case had happened
in this case, is not an event that may be complained of for the first time on appeal” in light
of failing to direct the judge’s attention to that fact.32 Aldrich’s holding, at least partially,
rested on the rationale that Aldrich stood idly by while the sentencing judge operated from
the faulty assumption that a guilty finding was made.33 However, what removes Grado’s case
from Aldrich’s auspices is the different natures of the rights at play in the two cases. Grado’s
right to be sentenced after consideration of the entire punishment range is qualitatively more
substantive than Aldrich’s procedural right to a formal guilty finding (even though there was
a finding that the evidence was sufficient to find Aldrich guilty) before sentencing in a guilty-
plea context.
30
104 S.W.3d 890, 895 (Tex. Crim. App. 2003).
31
Id.
32
Id.
33
Id. at 896.
GRADO—12
The State also relies upon Hull v. State.34 Hull was placed on “zero-tolerance”
community supervision.35 Shortly after, the State filed a motion to revoke alleging two
probation violations, and Hull pleaded “true” to one violation and “not true” to the other.
The judge found that Hull violated his probation and sentenced him to a term of
imprisonment. On appeal, Hull claimed that his revocation on the basis of the zero-tolerance
policy deprived him of due process. The court of appeals held that Hull could raise this
claim on appeal despite his lack of objection. Relying on Rule of Appellate Procedure 33.1
and without mention of Marin, this Court concluded that Hull procedurally defaulted his
claim by failing to object to the zero-tolerance policy at the imposition of his probation or the
revocation of his probation.36 In so holding, we pointed to Hull’s apparent understanding that
he was subject to the judge’s zero-tolerance policy at the time probation was imposed, and
Hull had an opportunity to object, but did not.37
We find Hull to be of limited value in resolving Grado’s case because Hull applied
the preservation-of-error requirement as it related to conditions of probation, which we have
acknowledged to be slightly different. In Speth v. State, we recognized that the granting of
community supervision was analogous to a contract between a defendant and the trial court,
34
67 S.W.3d 215 (Tex. Crim. App. 2002).
35
Id. at 216.
36
Id. at 217.
37
Id. at 218.
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and “by entering into the contractual relationship without objection, a defendant affirmatively
waives any rights encroached upon by the terms of the contract.”38 Only recently have we
definitively determined that Speth’s broad rule does not apply when the contested condition
violates a category-one Marin right.39 Consistent with Speth’s broad rule of error
preservation, Hull summarily concluded that without a contemporaneous objection the
alleged error was forfeited. At the time Hull was decided it was unclear to what extent a
Marin analysis was necessary, if at all. For these reasons we choose not to extend Hull to
the present case.
Conclusion
Having concluded that the right to be sentenced after consideration of the entire
applicable range of punishment is a category-two Marin right, we hold that Grado’s
complaint was not procedurally defaulted. And because the record does not reveal an
effective waiver of the right at issue, we further hold that the court of appeals properly
entertained the merits of Grado’s complaint.40 We affirm the court of appeals’ judgment.
38
6 S.W.3d 530, 534–35 (Tex. Crim. App. 1999).
39
Gutierrez v. State, 380 S.W.3d 167, 175 (Tex. Crim. App. 2012) (“We are not
inclined to read Speth so categorically as to hold that a defendant may not complain for
the first time on appeal of a condition of probation which violates an absolute prohibition
as envisioned by Marin.”).
40
See Marin, 851 S.W.2d at 280 (stating “a litigant is never deemed to [give up
waiver-only rights] unless he says so plainly, freely, and intelligently, sometimes in
writing and always on the record.”).
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DELIVERED: October 15, 2014
PUBLISH