Charlie Mylre Vaughn v. State of Texas

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-01-00106-CR ______________________________ CHARLIE MYLRE VAUGHN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 28131-B Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Grant O P I N I O N Charlie Vaughn appeals from the revocation of her community supervision and the imposition of a sentence of two years' confinement in a state jail facility. At the revocation hearing, Vaughn pleaded true to five violations of conditions of her community supervision. She admitted a drug problem, and she was pregnant at the time of the hearing. The evidence also shows that she has a two-year-old and an eight-month-old child and that they were being cared for by Vaughn's mother. At the time of the trial, the evidence showed that Vaughn's mother was about to begin chemotherapy. Vaughn contends in a single point of error that the trial court committed reversible error by refusing to consider other options and that the trial court erred in failing to consider the full range of punishment options available at her revocation hearing. Vaughn contends that reversal is required because the judge's remarks at the hearing indicate he wholly failed to consider other options available for punishment and demonstrated a commitment to a predetermined outcome. In the complained-of comments the trial court stated THE COURT: You didn't last long. It didn't take you long to decide you wanted to do what you want, not what this Court ordered you to do. You come here and ask for mercy today. Well, I'm going to tell you this. I gave you mercy back in January. I regret the mercy I showed you. I'm going to correct my mistake this very moment. I revoke your probation. I assess your punishment as two calendar years day for day in a state jail facility, to be served in the therapeutic community of that facility. I give you credit on that sentence for any time spent in jail up to this point. Any reason in law that sentence should not now be formally pronounced? [DEFENSE COUNSEL]: No, your Honor. Vaughn contends the trial judge refused to consider the full range of punishment options available, specifically, the option of continuing her on community supervision, and also that the court should have considered her unchallenged mitigating evidence. In making her argument, Vaughn directs this court to Hull v. State, 29 S.W.3d 602 (Tex. App.SHouston [1st Dist.] 2000, pet. granted). In Hull, the Houston court recognized that a trial judge had made remarks showing that he had committed himself to revoke probation for any violation whatsoever, no matter what exigent circumstances existed. Id. at 604. The court held that was error because it rendered the court unable to apply the law the Legislature enacted. (1) The court concluded that the no tolerance probation shared the same quality of predetermination that has been consistently disapproved in cases involving pre-announced sentences. See McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983) (an arbitrary refusal to consider the entire range of punishment would constitute a denial of due process). The initial question is whether the issue has been preserved for appellate review. This court reviewed a similar situation in Cole v. State, 757 S.W.2d 864 (Tex. App.STexarkana 1988, pet. ref'd). (2) In that case, the defendant claimed the trial judge prejudged his sentence and failed to consider mitigating evidence. We noted the defendant had been given the opportunity to object, but failed to raise any objection to the punishment or the procedures followed, either at the initial granting of deferred adjudication or at the punishment hearing or sentencing. We held that error was waived for failure to voice an objection to the imposition of punishment or to the trial judge's alleged failure to consider the evidence. Id. at 865-66 (trial judge wrote on docket sheet defendant would receive seventy-five years' imprisonment if he violated terms of deferred adjudication); see also McClenan, 661 S.W.2d at 110. Appellate courts do not consider any error counsel could, but did not, call to the trial judge's attention when the trial judge could have avoided or corrected the error. Cole, 757 S.W.2d at 866. The Dallas Court of Appeals has since agreed with our reasoning in a factually similar case, likewise concluding that because there was no objection made to the procedure or the punishment, the claim of error had been waived. Cole v. State, 931 S.W.2d 578, 580 (Tex. App.SDallas 1995, pet. ref'd). There are cases in which appellate courts have concluded waiver was inapplicable, but they involved situations where no punishment hearing was conducted, and thus the defendant had no real opportunity to object. (3) That is not our situation. In this case, Vaughn failed to object to the judge's comments at the sentencing phase of her revocation hearing or the imposition by the court of the two years' confinement when there was a clear opportunity to do so. A full revocation hearing was conducted in which Vaughn pleaded true to violations of her community supervision and testified on her own behalf. There is no indication in the record the judge had predetermined that if Vaughn violated her community supervision, he planned on imposing the maximum sentence. In the absence of a clear showing to the contrary, we are to presume the trial judge was a neutral and detached officer. Earley v. State, 855 S.W.2d 260, 262 (Tex. App.SCorpus Christi 1993), pet. dism'd, improvidently granted, 872 S.W.2d 758 (Tex. Crim. App. 1994). In light of these facts, we conclude the claim of error was not preserved for appellate review. Even if it had been, the record does not show the trial judge had predetermined the sentence in this case, nor does it show that the court failed to consider Vaughn's mitigating evidence. The contention of error is overruled. We affirm the judgment. Ben Z. Grant Justice Date Submitted: December 20, 2001 Date Decided: December 21, 2001 Do Not Publish 1. 1See Tex. Code Crim. Proc. Ann. art. 42.12, § 22(a) (Vernon Supp. 2002) (probation may be continued despite violation of terms). The statutory option the judge abandoned in advance in Hull was that provided by Article 42.12, § 22(a)--the possibility of being continued on probation despite a proven violation. 2. 2Chief Justice Cornelius wrote the opinion, Justice Bleil concurred, and Justice Grant dissented. 3. 3In Watson v. State, 884 S.W.2d 836, 838-39 (Tex. App.SEl Paso 1994), rev'd on other grounds, 924 S.W.2d 711 (Tex. Crim. App. 1996), the court distinguished its case because the defendant had no opportunity to object before sentence was pronounced. It noted that although due process claims may be preserved in a motion for new trial, it is not necessary to raise a point in a motion for new trial in order to preserve the claim for review on appeal. The Dallas court, in Jefferson v. State, 803 S.W.2d 470, 472 (Tex. App.SDallas 1991, pet. ref'd), concluded that the appellant had no reason to request relief (recusal of the trial judge) until after the judge had assessed punishment. The court concluded the appellant did not knowingly waive the right to a fair and unbiased tribunal. The court also pointed out that until the judge assesses punishment, the defendant is entitled to assume that the judge will perform his or her solemn duty to assess punishment on consideration of relevant evidence. Id. The court also stated that once the judge assesses punishment based on factors such as his or her promised punishment period, any recusal motion or objection would be futile. Id. The San Antonio court reviewed a similar situation, concluding there was no indication the appellant had knowingly waived his right to a fair and impartial forum and stating that the record did not disclose that a lesser sentence than ninety-nine years was ever considered. Howard v. State, 830 S.W.2d 785, 788-89 (Tex. App.SSan Antonio 1992, pet. ref'd). taches to particular types of non-criminal acts. Eisenhauer v. State, 678 S.W.2d at 954 (quoting Illinois v. Gates, 462 U.S. at 243 n.13) . In considering the totality of the circumstances in this case, we find that the trial court did not abuse its discretion in finding probable cause. The following facts were known to the officers when they searched Johnston's vehicle: The confidential informant told Officer Wingo that Johnston would be traveling in a green Mazda Navajo, that he would be heading south from Lake of the Pines en route to Street Creations in Longview, and that he possessed methamphetamine. According to Wingo, the informant had provided reliable information in the past. In addition, Wingo testified that he knew Johnston from his work as a narcotics investigator. Wingo and other officers had also independently corroborated the informant's tip by sighting the green Mazda Navajo, following it to Street Creations, and identifying Johnston. This information, especially when combined with the other information known to Wingo, was suffucient to raise a high degree of suspicion and created a reasonable belief that methamphetamine was located in the vehicle, thus providing the officers with probable cause to search the vehicle. Illinois v. Gates, 462 U.S. at 230. In his second point, Johnston contends the written statement taken after his arrest was the fruit of an illegal search of the vehicle and, therefore, the trial court erred in admitting it in evidence. Johnston does not challenge the voluntariness of his statement. Because the officers had probable cause to search the vehicle, Johnston's subsequent voluntary statement was properly admitted. See Balentine v. State, 71 S.W.3d 763, 774 (Tex. Crim. App. 2002). The judgment is affirmed. William J. Cornelius* Justice *Chief Justice, Retired, Sitting by Assignment Date Submitted: September 11, 2002 Date Decided: January 24, 2003 Publish 1. Miranda v. Arizona, 384 U.S. 436 (1966).