ACCEPTED
13-14-00314-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
2/5/2015 12:06:23 PM
DORIAN RAMIREZ
CLERK
NO. 13-14-00314-CR
IN THE COURT OF APPEALS
FILED IN
THIRTEENTH JUDICIAL DISTRICT 13th COURT OF APPEALS
CORPUS CHRISTI, TEXAS CORPUS CHRISTI/EDINBURG, TEXAS
____________________________________________
2/5/2015 12:06:23 PM
GARRETT NOVOSAD DORIAN E. RAMIREZ
Clerk
V.
THE STATE OF TEXAS
____________________________________________________
ON APPEAL FROM 25TH DISTRICT COURT
OF GONZALES COUNTY, TEXAS
CAUSE NUMBER 99-12-B
_____________________________________
BRIEF FOR THE STATE
PAUL WATKINS
County Attorney
Gonzales County, Texas
VICTORIA W. JOHNSON
Assistant County Attorney
415 Saint Louis Street
Gonzales, Texas 78629
(830) 672-6527
(830) 672-5868 (fax)
vjohnson@co.gonzales.tx.us
State Bar No. 24087810
(On Appeal)
Attorneys for the State of Texas
ORAL ARGUMENT WAIVED
TABLE OF CONTENTS
PAGE (S)
INDEX OF AUTHORITIES .............................................................................. iii
STATEMENT OF THE CASE ............................................................................ 1
STATEMENT OF THE FACTS .......................................................................... 2
SUMMARY OF THE ARGUMENT ................................................................... 4
ARGUMENT ........................................................................................................... 5
Appellant’s Sole Point of Error
The trial court violated defendant’s due process rights
when it made comments demonstrating the trial
court’s lack of impartiality and when it failed to
consider the full range of punishment available.
State’s Response to Appellant’s Sole Point of Error
Appellant failed to preserve for appellate review his
complaint that the trial court’s comments at the time
of his sentencing demonstrated the trial court’s lack
of impartiality and that the trial court failed to
consider the full range of punishment available. Even
if Appellant had preserved his complaint, the trial
court’s comments did not show bias, or that it failed
to consider the full range of punishment available. As
such, Appellant’s sole point of error must be
overruled.................................................................................................... 5
PRAYER ............................................................................................................. 11
CERTIFICATE OF SERVICE ........................................................................... 12
CERTIFICATE OF COMPLIANCE.................................................................... 13
ii
INDEX OF AUTHORITIES
U.S. Supreme Court Cases
Gagnon v. Scarpelli, 411 U.S. 778
(1973) .................................................................................................................... 7
Texas Cases
Brumit v. State, 206 S.W.3d 639
(Tex. Crim. App. 2006) ........................................................................................ 7
Burke v. State, 930 S.W.2d 230
(Tex. App.—Houston 1996, pet. ref’d) ................................................................ 8
Celestine v. State, No. 09-12-00548-CR,
2013 Tex. App. LEXIS 12833
(October 16, 2013, pet. ref’d)
(not designated for publication) ............................................................................ 7
Cole v. State, 757 S.W.2d 864
(Tex. App.—Texarkana 1988, no pet.) ................................................................. 8
Earley v. State, 855 S.W.2d 260
(Tex. App.—Corpus Christi 1993, pet. dism’d) ................................................... 8
Grado v. State, 445 S.W.3d 736
(Tex. Crim. App. 2014) ........................................................................................ 5
Gillenwaters v. State, 205 S.W.3d 534
(Tex. Crim. App. 2006) ........................................................................................ 6
Teixeira v. State, 89 S.W.3d 190
(Tex. App.—Texarkana 2002, pet. ref’d) ............................................................. 5
Jefferson v. State, 803 S.W.2d 470
(Tex. App.—Dallas 1991, pet. ref’d).................................................................... 8
iii
Rules and Statutes
TEX. R. APP. 33.1 .................................................................................................. 5
iv
I. STATEMENT OF THE CASE
The Appellant, Garrett Novosad, was charged by indictment with two
offenses — burglary of a habitation and theft of a firearm. (Cl. R. vol. 1 of 1, at 1).
On May 9, 2013, Appellant pled guilty to both charges in the 25th Judicial District
Court of Gonzales County, Texas, the Honorable William D. Old, III, presiding.
(Cl. R. vol. 1 of 1, at 25-28)(Ct. R. vol. 2 of 4, at 8). On July 9, 2013, Appellant
was placed on four years deferred adjudication community supervision. (Cl. R. vol.
1 of 1, at 33-40) (Supp. Ct. R. vol. 1 of 1, at 5).
On April 11, 2014, the State filed a motion for adjudication of guilt on both
charges. (Cl. R. vol. 1 of 1, at 46-47). On May 29, 2014, Appellant pled true to all
allegations contained in the State’s motion to adjudicate guilt, the Honorable
William D. Old, III, presiding. (Cl. R., vol. 1 of 1 at 51-52)(Ct. R. vol. 3 of 4, at
7). On May 29, 2014, Appellant was sentenced to twenty-one months confinement
on both charges, to run concurrently. (Cl. R. vol. 1 of 1, at 67-69)(Ct. R. vol. 3 of
4, at 18). The trial court certified that Appellant had the right of appeal. (Cl. R.
vol. 1 of 1, at 53)(Ct. R. vol. 3 of 4, at 19). On July 25, 2014, Appellant filed a
notice of appeal. (Cl. R. vol. 1 of 1, at 82).
1
II. STATEMENT OF THE FACTS
A detailed recitation of the facts is not required to address Appellant’s sole
point of error. Below is a summary of the more pertinent facts as they apply to
Appellant’s sole point of error.
When Appellant pled guilty to both counts in the indictment, and the trial
court placed him on four years deferred adjudication community supervision, the
trial court told Appellant, “you’ve got rules you have to follow. You violate any of
these rules and play games with my probation department, I’ve got a place for
you.” (Cl. R. vol. 1 of 1, at 25-28, 33-40)(Ct. R. vol. 2 of 4, at 8)(Supp. Ct. R. vol.
1 of 1, at 5).
At the motion to adjudicate hearing, the State argued Appellant should be
adjudicated guilty and be sentenced to a state jail facility because Appellant
refused residential in-treatment patient care, Appellant tested positive for drugs on
numerous occasions, and Appellant made no real efforts toward completing his
deferred adjudication community supervision. (Ct. R. vol. 3 of 4, at 7).
Appellant was offered, and accepted, treatment after his first positive drug
test while on deferred adjudication community supervision. (Ct. R. vol. 3 of 4, at
15-16). Upon completion of a 30-day treatment program at La Hacienda, Appellant
failed to comply with the aftercare component of the treatment program, tested
positive for drugs, and at that time was offered the opportunity to go into treatment
2
in Uvalde, Texas. (Ct. R. vol. 3 of 4, at 16). Appellant wanted to discuss the
Uvalde treatment option with his attorney prior to signing an agreed order, but
Appellant never returned to sign an agreed order. (Ct. R. vol. 3 of 4, at 16, 18).
Appellant testified he did not want to go to State Jail. (Ct. R. vol. 3 of 4, at
11). Appellant claimed he previously rejected treatment in Uvalde because he did
not fully understand his options and needed extra time to think about the treatment
option. (Ct. R. vol. 3 of 4, at 10). Appellant stated he was now willing to enter a
treatment facility in Uvalde. (Ct. R. vol. 3 of 4, at 8, 10). Appellant asked the trial
court to release him on a personal bond, so that Appellant could spend time with
his infant child, who was born in March 2014, before entering the treatment
program. (Ct. R. vol. 3 of 4, at 8, 10).
In regards to his failure on his deferred adjudication community supervision
obligations, Appellant testified he could not complete his community service hours
or required Commitment to Change course because he had back surgery, and that
Appellant’s community supervision officer was aware of the situation and excused
him from community service hours, reporting in person, and the required class.
(Ct. R. vol. 3 of 4, at 9, 12-13).
Traci Darilek, with the Gonzales County Community Supervision
Department, testified that Appellant was on deferred adjudication community
supervision six months prior to having back surgery, but did not complete any
3
community service hours or the required class during that time, as required. (Ct.
R. vol. 3 of 4, at 15-17). Appellant’s file contained no indication from his previous
community service officer that Appellant was exempted from community service
hours. (Ct. R. vol. 3 of 4, at 15, 16). Additionally, Appellant provided no
documentation from a doctor stating he could not comply with the community
service requirement because of his back surgery. Id.
After both sides rested and closed, the trial court stated, “Mr. Novosad,
when I sentenced you, I told you I didn’t play games. I told you if you couldn’t
abide by the rules, that I had a place for you.” (Ct. R. vol. 3 of 4, at 18). The trial
court then pronounced a sentence of twenty-one months in the Texas Department
of Criminal Justice State Jail Division. (Ct. R. vol. 3 of 4, at 18-19).
III. SUMMARY OF THE ARGUMENT
Appellant failed to preserve for appellate review his complaint that the trial
court violated Appellant’s due process rights because he failed to object to the trial
court’s comments at the time he was sentenced. Even if Appellant had preserved
his complaint for appellate review, the trial court’s comments did not demonstrate
it had lacked impartiality or failed to consider the full range of punishment
available. The trial court’s comments did not indicate it had predetermined a
specific punishment prior to the adjudication hearing. Also, the trial court
4
considered testimony from both sides before making any comments regarding
punishment.
IV. ARGUMENT
STATE’S RESPONSE TO APPELLANT’S SOLE POINT OF ERROR
Appellant failed to preserve for appellate review his complaint that the
trial court’s comments at the time of his sentencing demonstrated the trial
court’s lack of impartiality and that the trial court failed to consider the full
range of punishment available. Even if Appellant had preserved his
complaint, the trial court’s comments did not show bias, or that it failed to
consider the full range of punishment available. As such, Appellant’s sole
point of error must be overruled.
Appellant argues the trial court demonstrated a lack of impartiality and
failed to consider the full range of punishment available by stating, “I told you if
you couldn’t abide by the rules, that I had a place for you.” Appellant’s sole point
of error is not preserved for appellate review because he failed to object to the trial
court’s comments at the time he was sentenced. Appellant has presented no
evidence to show the trial court demonstrated a lack of impartiality or failed to
consider the full range of punishment available. Appellant’s point of error is
unpreserved, and meritless.
Preservation of Error
Generally, to preserve error for appellate review, a party must make a timely
objection, state the specific grounds for the objection, and obtain a ruling from the
trial court. Tex. R. App. 33.1; Grado v. State, 445 S.W.3d 736, 738-39 (Tex. Crim.
App. 2014); Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002,
5
pet. ref’d). A request is timely if the party makes the complaint as soon as the
grounds for such complaint become apparent. Gillenwaters v. State, 205 S.W.3d
534, 538 (Tex. Crim. App. 2006). The right to be punished after consideration of
the full range of punishment is not an absolute right, instead it is waivable or
forfeitable by the parties, as evidenced by negotiated plea bargains. Grado, 445
S.W.3d at 740. As such, a party’s failure to enforce his forfeitable rights by timely
objecting to a trial court’s failure to consider the full range of punishment waives
such a complaint for appellate review. Marin v. State, 851 S.W.2d 275, 280 (Tex.
Crim. App. 1993); Teixeira, 89 S.W.3d at 192.
Here, the trial court’s comments, “Mr. Novosad, when I sentenced you, I
told you I didn’t play games. I told you if you couldn’t abide by the rules, that I
had a place for you,” were made after testimony was presented, arguments from
both sides were made, and before sentencing was announced. (Ct. R. vol. 3 of 4, at
18, 19).
Previously, at the initial sentencing hearing on July 9, 2013, the trial court
made similar comments, telling Appellant, “you’ve got rules you have to follow.
You violate any of these rules and play games with my probation department, I’ve
got a place for you.” (Supp. Ct. R. vol. 1 of 1, at 5).
At both stages, Appellant had the opportunity to make an objection, but
failed to do so. (Ct. R. vol. 3 of 4, at 18) (Supp. Ct. R. vol. 1 of 1, at 5). Because
6
Appellant failed to make a timely objection, he waived for appellate review his
sole point of error. Tex. R. App. 33.1; Marin, 851 S.W.2d at 279; Grado, 445
S.W.3d at 739; Teixeira, 89 S.W.3d at 192. Therefore, Appellant’s sole point of
error must be overruled.
Lack of Impartiality and Failure to Consider the Full Range of
Punishment
Even assuming arguendo that Appellant preserved his sole point of error for
appellate review it must still be overruled because trial court’s comments did not
show bias, or that it failed to consider the full range of punishment available.
Due process requires a neutral and detached hearing body or officer. Gagnon
v. Scarpelli, 411 U.S. 778, 786 (1973). A court denies due process if it arbitrarily
fails to consider the full range of punishment available, or refuses to consider
evidence and imposes a predetermined sentence. Grado, 445 S.W.3d at 739;
Teixeira, 89 S.W.3d at 192.
“Absent a clear showing of bias, a trial court’s actions will be presumed to
have been correct.” Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).
Bias is not shown where the trial court does not make any comments indicating it
has considered less than the full range of punishment. Brumit, 206 S.W.3d at 645;
Celestine v. State, No. 09-12-00548-CR, 2013 Tex. App. LEXIS 12833, at *4
(Tex. App.—Beaumont October 16, 2013, pet. refused).
7
No bias is shown where the trial court merely makes comments emphasizing
the serious nature of probation, and importance of following the rules and
conditions of probation. Burke v. State, 930 S.W.2d 230, 235 (Tex. App.—
Houston 1996). Similarly, bias is not demonstrated merely because the trial court
comments on the severity of punishment being imposed. Brumit, 206 S.W.3d at
640, 645.
Instead, bias is shown where a defendant was promised a predetermined
sentence, or the maximum punishment, if they failed to comply with the terms of
probation. Earley v. State, 855 S.W.3d 260, 262 (Tex. App—Corpus Christi 1993,
pet. dism’d); Cole v. State, 757 S.W.2d 864, 866 (Tex. App.—Texarkana 1988, no
pet.); Jefferson v. State, 803 S.W.2d 470, 471-72 (Tex. App.—Dallas 1991, pet.
ref’d).
Here, the record does not support Appellant’s claim that the trial court
demonstrated bias and failed to consider the full range of punishment available.
Appellant admitted in writing to violating all of the conditions of deferred
adjudication community supervision alleged in the State’s motion. (Cl. R. vol. 1 of
1, at 52-53)(Ct. R. vol. 3 of 4, at 6). After Appellant’s admission, he was allowed
to present testimony mitigating why he was unable to successfully abide by the
conditions of his deferred adjudication community supervision. (Ct. R. vol. 3 of 4,
8
at 8-14). The State presented rebuttal evidence to refute Appellant’s testimony
concerning his mitigating factors. (Ct. R. vol. 3 of 4, at 14-18).
Only after the trial court heard all testimony and evidence at the adjudication
proceeding did the trial court make its comments, “Mr. Novosad, when I sentenced
you, I told you I didn’t play games. I told you if you couldn’t abide by the rules,
that I had a place for you.” (Ct. R. vol. 3 of 4, at 18). The trial court then
pronounced Appellant’s sentence, which was less than the maximum punishment
available to the trial court. (Ct. R. vol. 3 of 4, at 18-19).
Previously, at the initial sentencing hearing, and upon granting Appellant
deferred adjudication community supervision, the court made only similar
comments, telling Appellant, “you’ve got rules you have to follow. You violate
any of these rules and play games with my probation department, I’ve got a place
for you.” (Supp. Ct. R. vol. 1 of 1, at 5).
The record is devoid of any evidence the trial court failed to consider the full
range of punishment available, or had predetermined a particular number of
months or years confinement Appellant would be sentenced. At no time, either
when it placed Appellant on deferred adjudication community supervision or at the
adjudication proceeding, did the trial court promise Appellant a predetermined
sentence, or even a specific range of punishment. Rather, it is clear from the
record that the trial court was simply trying to impress upon Appellant the serious
9
nature of his deferred adjudication and the importance of following the rules and
conditions of his deferred adjudication community supervision. Burke, 930
S.W.2d at 235. Therefore, appellant’s sole point of error must be overruled.
Furthermore, the case at hand closely mirrors the facts in Burke v. State,
where the appellate court held the trial court’s comments, “if you want to run with
the same friends and live the same life, you want to keep drinking, you’re going to
end up in the penitentiary. Do you understand that? Is there any doubt in your
mind if you don’t follow [the terms of your probation] you’re going to end up back
in jail?” did not demonstrate the trial court failed to consider all of the evidence
presented or that the trial court had predetermined a sentence. 930 S.W.2d 230,
234-35. The appellate court found the trial court’s comments merely attempted to
impress upon the appellant the seriousness of his probation. Id. at 235.
Similarly, the appellate court found no bias shown in Brumit v. State, the
court found no bias shown where the trial court commented, “your punishment is
going to deter you, and . . . anybody else that might contemplate doing what you
did,” and pronounced sentence. 206 S.W.3d at 640, 645.
Because the trial court’s comments do not indicate that it was biased or
failed to consider the full range of punishment before sentencing Appellant, his
sole point of error must be overruled.
10
V. PRAYER
WHEREFORE, PREMISES CONSIDERED, the State submits that this case
should in all things be affirmed.
Respectfully submitted,
PAUL WATKINS
County Attorney
Gonzales, Texas
/S/_Victoria W. Johnson____
VICTORIA W. JOHNSON
Assistant County Attorney
415 Saint Louis Street
Gonzales, Texas 78629
(830) 672-6527
(830) 672-5868 (fax)
vjohnson@co.gonzales.tx.us
State Bar No. 24087810
(On Appeal)
Attorneys for the State
11
VI. CERTIFICATE OF SERVICE
I, Victoria W. Johnson, Assistant County Attorney, Gonzales County, Texas,
hereby certify that a true copy of the above and foregoing document is being delivered
via e-service or facsimile to Chris Iles Attorney for defendant on this the 5th day of
February, 2015.
/S/_Victoria W. Johnson______
VICTORIA W. JOHNSON
12
VII. CERTIFICATE OF COMPLIANCE
I, Victoria W. Johnson, herby certify that the total number of words in this
Response is less than 15,000 words. According to the word count the included
contents1 of this document contains 2,227 words.
/S/_Victoria W. Johnson______
VICTORIA W. JOHNSON
Assistant County Attorney
415 Saint Louis Street
Gonzales, Texas 78629
(830) 672-6527
(830) 672-5868 (fax)
State Bar No. 24087810
(On Appeal)
1
Contents Included and Excluded. In calculating the length of a document, every word and every
part of the document, including headings, footnotes, and quotations, must be counted except the
following: caption, identity of the parties and counsel, statement regarding oral argument, table
of contents, index of authorities, statement of the case, statement of issues presented, statement
of jurisdiction, statement of procedural history, signature, proof of service, certificate of
compliance and appendix. TEX. R. APP 9.4 (I)(1)
13