Cabrera v. State

513 S.W.3d 35

Augustin Gabriel CABRERA, Appellant

v.The STATE of Texas, Appellee

NO. 14-15-00663-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed October 11, 2016

Discretionary Review Refused March 22, 2017

Rehearing Overruled November 8, 2016

Rehearing En Banc Overruled December 13, 2016

Melissa Martin, Houston, TX, for Appellant.

Patricia McLean, Houston, TX, for State.

Panel consists of Chief Justice Frost and Justices McCally and Brown (Frost, CJ., dissenting).

OPINION

Marc W. Brown, Justice

Appellant Augustin Gabriel Cabrera appeals his conviction for burglary of a vehicle. In a single issue appellant contends the trial court violated his right to due process when it failed to consider the full range of punishment. We reverse and remand for a new punishment hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Pretrial

Prior to voir dire, the trial court admonished appellant as to the charges against him and the possible range of punishment. The trial court informed appellant that he was charged with the misdemeanor offense of burglary of a vehicle, which carried a potential sentence from one day up to one year in the county jail.¹ The information alleged that appellant had previously been convicted of a misdemeanor, which the trial court explained, if found true, would alter the range of punishment. In that case, the minimum punishment that could be assessed would be 90 days in the county jail. Tex. Penal Code § 12.43(a)(2) (West 2015).

Appellant stated he understood the range of punishment and informed the trial court that the State recommended a 30-day sentence in exchange for appellant's agreement to plead guilty. The trial court responded, "I think that's what I told [defense counsel] that I would give you if you wanted to plea without a recommendation, but the State is recommending how many days in jail?" The State responded that it recommended 180 days in jail, not 30. The trial court responded:

THE COURT: The State is recommending today 180 days in jail, and I've told [defense counsel] that if the State [sic] wanted to waive its right to a jury trial, you wanted to come to me for punishment, that I would be willing to consider assessing your punishment at 30 days in jail. Do you understand that?

THE DEFENDANT: Yes, sir.

The trial court then asked the State to summarize what it expected the evidence to show "if [appellant] wants to exercise his right to have a jury trial[.]" The State recited that it intended to call the complainant, who would testify that his car had been burglarized and that items valued at approximately $300 were stolen from the vehicle. The State further expected to show that DNA matching appellant had been found inside the burglarized vehicle. If appellant were convicted, then the State further expected to show that appellant had been previously convicted of assault of a family member, possession of a weapon as a felon, and organized criminal activity. At the conclusion of the State's summary, the trial court asked appellant:

[D]o you see how a jury could find you guilty of the offense of burglary of a motor vehicle based upon the DNA comparison from the blood found in the car to your DNA, and if they find you guilty once they hear about all those prior convictions you have for various offenses they may just decide to give you 180 days in jail?

The trial court again asked appellant what he wanted to do. Appellant stated he wanted to exercise his right to a jury trial. The following conversation occurred between the trial court and appellant:

THE COURT: Mr. Cabrera, you want the jury or the Court to assess punishment?

THE DEFENDANT: The Court.

THE COURT: All right. Mr. Cabrera, I hope you're not under any illusion you are going to get 30 days after trial, are you?

THE DEFENDANT: No, sir.

B. Guilt-Innocence Phase

Evidence commenced following voir dire. The complainant testified that he left his truck overnight at work. When he arrived the next morning the window glass had been broken and he could see blood inside the truck. The complainant's tools, worth several hundred dollars, were missing from the truck. As part of the investigation Harris County Sheriff's deputies took samples of the blood found in the truck and compared the DNA found in those samples with known samples from appellant. A forensic scientist testified that the DNA results from the driver's seat swab were consistent with the DNA results obtained from appellant. Following argument of counsel the jury found appellant guilty of burglary of a vehicle. Because appellant chose to have the trial court assess punishment, the jury was excused following its verdict.

C. Punishment Phase

The entire punishment phase consisted of less than one page in the trial transcript. The State did not attempt to prove up appellant's prior conviction as alleged in the information, or provide evidence of any other prior conviction. In fact, the State presented no evidence or arguments during the punishment phase at all. Appellant did not enter a plea of "true" to any prior conviction. Therefore, no enhanced range of punishment was applicable. The trial court assessed appellant's punishment at 180 days in the Harris County Jail.

II. ISSUE AND ANALYSIS

In his sole issue appellant contends the trial court violated his due process rights when it failed to consider the full range of punishment.

A. Applicable Law and Standard of Review

It is a denial of due process for a trial court to arbitrarily refuse to consider the entire range of punishment for an offense or to refuse to consider the evidence and impose a predetermined punishment. McClenan v. State , 661 S.W.2d 108, 110 (Tex. Crim. App. 1983), overruled on other grounds , De Leon v. Aguilar , 127 S.W.3d 1, 5–6 (Tex. Crim. App. 2004) ; Jefferson v. State , 803 S.W.2d 470, 471 (Tex. App.–Dallas 1991, pet. ref'd) ("It is axiomatic that it is a denial of due process for the court to arbitrarily refuse to consider the entire range of punishment for an offense or to refuse to consider the evidence and impose a predetermined punishment."). In applying our state constitutional guarantee of due course of law, we follow contemporary federal due process interpretations. U.S. Gov't v. Marks , 949 S.W.2d 320, 326 (Tex. 1997) ; Fleming v. State , 376 S.W.3d 854, 856 (Tex. App.–Fort Worth 2012), aff'd , 455 S.W.3d 577 (Tex. Crim. App. 2014), cert. denied , ––– U.S. ––––, 135 S.Ct. 1159, 190 L.Ed.2d 913 (2015). We presume the trial judge was a neutral and detached officer and considered the full range of punishment unless there is a clear showing to the contrary. State v. Hart , 342 S.W.3d 659, 673 (Tex. App.–Houston [14th Dist.] 2011, pet. ref'd) ; Earley v. State , 855 S.W.2d 260, 262 (Tex. App.–Corpus Christi 1993, pet. dism'd) ; see Brumit v. State , 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).

B. Preservation of Error

Appellant did not object to the trial court's comment concerning the potential sentence. Whether appellant is required to make a contemporaneous objection to preserve error turns on the nature of the right allegedly infringed. Grado v. State , 445 S.W.3d 736, 739 (Tex. Crim. App. 2014). The Court of Criminal Appeals of Texas has separated defendants' rights into three categories: (1) absolute requirements and prohibitions, which cannot lawfully be avoided even with partisan consent; (2) waivable-only rights, which must be implemented unless expressly waived; and (3) forfeitable rights, which are forfeited unless requested by the litigant. Id . ; Marin v. State , 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State , 947 S.W.2d 262 (Tex. Crim. App. 1997).

The right to be sentenced after consideration of the full range of punishment is a category two waivable-only right. Grado , 445 S.W.3d at 743. Therefore, appellant's complaint that the trial court failed to consider the full range of punishment was not forfeited by his failure to object at trial. See id . We therefore consider the merits of appellant's complaint. See id.

C. Did the trial court violate appellant's due process rights by failing to consider the full range of punishment?

Appellant was convicted of burglary of a vehicle for which the punishment range is confinement in jail for a term not to exceed one year and/or a fine not to exceed $4,000. See Tex. Penal Code Ann. §§ 12.21 and 30.04. The information contained an enhancement paragraph alleging a prior misdemeanor conviction for assault of a family member, which, if proved, would have increased appellant's minimum sentence to 90 days in jail. See Tex. Penal Code Ann. § 12.43(a)(2). The State did not present any evidence at punishment to prove the enhancement paragraph.

The record reflects that prior to jury selection, the trial court told appellant that if he chose to exercise his right to a jury trial he should not be "under any illusion" that he would receive a 30-day sentence. The trial court's statement clearly indicates that the court, without any evidence before it, had arbitrarily dismissed a portion of the permissible range of punishment. See Ex parte Brown , 158 S.W.3d 449, 454–57 (Tex. Crim. App. 2005) (due process violation where trial court promised 20-year punishment to applicant when deferring guilt finding at plea and, later, assessed promised punishment after applicant pled true to violation allegations at adjudication hearing); Earley , 855 S.W.2d at 262–63 (trial court prejudged punishment before hearing any evidence); Jefferson , 803 S.W.2d at 471–72 (due process violation where trial court imposed predetermined punishment after promising defendant at deferred-adjudication plea that he would receive maximum sentence if he violated probation).

The State argues that appellant failed to rebut the presumption that the trial court was neutral and detached because appellant failed to show the trial court's comment was a promise to impose, or refuse to consider, a particular sentence rather than a statement conditioned on the State proving its...