Opinion issued December 22, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00861-CR
———————————
SEGISMUNDO GONZALEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1388920
MEMORANDUM OPINION
Appellant Segismundo Gonzalez pleaded guilty to the first-degree felony
offense of aggregate theft of more than $200,000.1 Following completion of a
presentence investigation (PSI) report and a hearing, the trial court sentenced
appellant to sixteen years’ confinement in the Institutional Division of the Texas
Department of Criminal Justice. Appellant contends that the trial court violated his
rights to due process and due course of law under the United States and Texas
Constitutions by (1) relying on evidence that was not admitted at the hearing, (2)
refusing to consider the entire range of punishment, and (3) not acting as a neutral
and detached hearing officer. We reform the trial court’s judgment and, as reformed,
we affirm.
Background
Appellant was indicted for aggregate theft of more than $200,000 for
embezzling nearly one million dollars from his employer over a period of
approximately six years. Appellant subsequently filed a motion for
probation/community supervision with the court. On July 25, 2014, appellant
entered into a plea of guilty and a waiver of constitutional rights, an agreement to
stipulate, and a judicial confession. Following the completion of a PSI report, the
trial court held a hearing on September 22, 2014.
1
See TEX. PENAL CODE ANN. § 31.09 (West 2011), § 31.03(a), (e)(7) (West Supp.
2015).
2
Prior to announcing the sentence at the conclusion of the punishment hearing,
the trial court made the following comment:
Just to let [the complainant] know, if I were to give him
probation, I don’t think you’re ever going to see a dime of restitution.
We do not have debtor’s prison in this country. I cannot revoke his
probation for failure to pay unless the State can prove that he had the
ability to pay, and my experience has been people who are paying large
amounts of restitution just won’t work and pay it. They prefer not to
work, and it’s very difficult to prove that they were not trying to find a
job. And I wouldn’t look to see that house sold anytime soon.
Thereafter, the trial court sentenced appellant to sixteen years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice. This appeal
followed.
Discussion
In his sole point of error, appellant contends that the trial court violated his
rights to due process and due course of law under the United States and Texas
Constitutions. See U.S. CONST. amend. XIV, § 1 (providing that no State shall
“deprive any person of life, liberty, or property, without due process of law . . . .”);
TEX. CONST. art. I, § 19 (providing that “[n]o citizen of this State shall be deprived
of life, liberty, property, privileges or immunities, or in any manner disfranchised,
except by the due course of the law of the land.”). Specifically, he argues that the
trial court’s comment at the conclusion of the hearing, i.e., that appellant, if granted
community supervision, would likely not comply with the condition requiring that
he pay restitution to the complainant, demonstrates that it did not act as a neutral and
3
detached hearing officer but, instead, acted arbitrarily in refusing to consider the
entire range of punishment.
We initially address the State’s argument that appellant failed to preserve his
issue for appeal. Generally, an issue regarding improper judicial comments must be
preserved at trial. Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013).
However, a party may complain about improper judicial comments even if the error
was not preserved in the trial court if an absolute requirement, prohibition, or
fundamental right was violated. See Ex parte Marascio, ___ S.W.3d ___, 2015 WL
5853202, at *2 (Tex. Crim. App. 2015).
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). A trial
court’s arbitrary refusal to consider the entire range of punishment in a particular
case violates due process and is classified as a non-forfeitable, waiver-only right that
is not subject to procedural default. See Grado v. State, 445 S.W.3d 736, 737 (Tex.
Crim. App. 2014). Thus, a complaint that the trial court failed to consider the full
range of punishment may be raised for the first time on appeal. See id. at 741–43.
Absent a clear showing of bias, we presume the trial court’s actions were
correct. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). Bias is not
shown when (1) the trial court hears evidence before assessing punishment, (2) the
4
record contains explicit evidence that the trial court considered the full range of
punishment, and (3) the trial court did not make any comments indicating it
considered less than the full punishment range. See id. at 645.
Here, the trial court heard testimony from four witnesses, including three
defense witnesses, and had before it the PSI report as well as several exhibits
admitted at the hearing. The trial court made the complained-of comments at the
conclusion of the hearing. Therefore, this is not a situation in which the trial court
imposed punishment without considering any evidence relating to the offense or
refused to consider mitigating evidence. See Youkers v. State, 400 S.W.3d 200, 209
(Tex. App.—Dallas 2013, pet. ref’d) (noting, in holding that trial court’s comments
did not reflect that court failed to consider full range of punishment, that challenged
comments occurred “only after hearing all of the evidence”). The record also
contains explicit evidence that the trial court considered the full range of punishment
in this case—the “Waiver of Constitutional Rights, Agreement to Stipulate, and
Judicial Confession” signed by appellant, his counsel, and the trial court judge,
include a note stating “[Defendant] advised at length the court will consider full
range of sentencing.” Finally, contrary to appellant’s argument, the trial court’s
comments demonstrate that it did consider the full range of punishment because it
imposed sixteen years’ confinement, which is at the lower end of the five-to-ninety-
nine year range for a first-degree felony and less than the twenty-five year sentence
5
sought by the State. See, e.g., Novosad v. State, No. 13-14-00314-CR, 2015 WL
4610233, at *2 (Tex. App.—Corpus Christi July 2, 2015, no pet.) (mem. op., not
designated for publication) (noting record indicated that trial court considered full
range of punishment where it imposed twenty-one month confinement which was
less than two-year maximum punishment).
Appellant also argues that the trial court’s comments reflect that it denied his
motion for community supervision based solely on evidence outside of the record.
Specifically, he contends that the trial court’s decision was based on its conclusion
that because other defendants who had received community supervision had failed
to pay restitution, appellant would likewise not pay. To the contrary, the trial court’s
comments, which were directed to the complainant, reflect a permissible reference
to its experience regarding the suitability of community supervision. See Torres v.
State, 92 S.W.3d 911, 921 n.5 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)
(noting judges must routinely look to personal experience when making subjective
judgment regarding punishment); see also Ferm v. State, No. 14-08-00287-CR, 2009
WL 2176570, at *7 (Tex. App.—Houston [14th Dist.] July 23, 2009) (mem. op., not
designated for publication) (concluding “trial judge’s comments reflect a
permissible reference to his experience regarding the suitability for probation of
defendants who, like appellant, request probation yet refuse to admit their guilt.”).
6
We conclude that the record does not clearly indicate bias or a denial of
appellant’s due process rights, and that appellant has not overcome the presumption
that the trial court acted as a detached and neutral officer. Accordingly, we overrule
appellant’s point of error.
Pronouncement of Sentence
The judgment and sentence reflect that appellant was sentenced to seventeen
years’ confinement in the Institutional Division of the Texas Department of Criminal
Justice. However, the trial court orally sentenced appellant to confinement for
sixteen years. When there is a conflict between the oral pronouncement of sentence
and the sentence in the written judgment, the oral pronouncement controls. Taylor
v. State, 131 S.W.3d 497, 501 (Tex. Crim. App. 2004). Therefore, we reform the
judgment and sentence to reflect that appellant was sentenced to sixteen years’
confinement in the Institutional Division of the Texas Department of Criminal
Justice.
Conclusion
We reform the trial court’s judgment to reflect that appellant was sentenced
to sixteen years’ confinement in the Institutional Division of the Texas Department
of Criminal Justice. We affirm the judgment of the trial court, as reformed.
7
Russell Lloyd
Justice
Panel consists of Justices Higley, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
8