## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 16

- 00075

- CR

DUSTIN BENNETT SANDLIN, Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 196th District Court

Hunt County, Texas Trial Court No. 29,769

Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Chief Justice Morriss2 

### MEMORANDUM OPINION After revoking Dustin Bennett S andlin ’ s community supervision and sentencing him to ten
years ’ confinement, the trial court expressed regret that it was limited to assessing only a ten

- year sentence. On appeal of the revocation and sentence, Sandlin argues that he was denied due process because the trial court refused to consider the full range of punishment and the mitigating evidence. Because there has been no showing that the trial court refused to consider the full range of punishment or that it ignored the mitigating evidence, we affirm the judgment of the trial court. On April 1, 2015, Sand lin had pled guilty to indecency with a child by sexual contact 1 and was sentenced to ten years ’ imprisonment, but the sentence was suspend ed , and Sandlin was placed on community supervision for ten years. Within one year, this revocation proceeding was i n motion, ultimately resulting in the ten

- year sentence. After the true/not true phase 2 of the revocation proceeding, the punishment phase was conducted. In the punishment phase, the State called Karen, 3 the child victim of the underlying offense, and her grandfather, Lester. Karen testified that she was thirteen years old on the day of

1 See T EX
. P ENAL C ODE A NN
. § 21.11(a)(1) (West 2011 ).

2 In its amended motion to revoke community supervision, the State alleged ten violations of the community supervision order including failing to register as a sex offender and three instances of self

- admitte d illegal drug use. In the true/not true phase of the hearing , Sandlin pled true to the three instances of illegal drug use and not true to the remaining seven allegations. Evidence was heard from the State ’ s witnesses, including Sandlin ’ s community supe rvision officer, the sex

- offender registration officer for the Sulphur Springs Police Department, and Kimberly Cayla Hall , a woman with whom Sandlin lived for a short period of time. Sandlin and his brother testified on his behalf. Sandlin disputed the t estimony of the State ’ s witnesses regarding his alleged community supervision violations. He admitted to the three instances of using illegal drugs, but testified that he was thinking about consequences of his decisions and that he thought narcotics anonymous would help him. He asked the trial court to let him continue his community supervision . Based on the evidence presented at the hearing, the trial court found seven of the State ’ s allegations true and three of the allegations not t rue.

3 The child victim, her grandfather, and her friend are referred to by pseudonyms. See T EX
. R. A PP
. P. 9.10.3

the incident. She stated that she went with a friend, Gina, to Gina ’ s cousin ’ s (Sandlin ’ s) house. She testified that she had met Sandlin about five or six months earl ier. Sandlin purchased beer and vodka, and they went to Sandlin ’ s house and drank it. Karen testified that Sandlin then began smoking marihuana and had the girls smoke it. She said that the y smoked marihuana for about two hours and that she also drank v odka. That evening, Karen laid down on the guest bed while Gina went to the bathroom to change her clothes. Karen testified that Sandlin laid down on the bed, although she thought it was Gina. She said he put his arms around her and started kissing her. Although she resisted, he pulled her pants down and tried to have sex with her. Karen said that Sandlin touched her vagina with his fingers and his penis and that he put his penis inside of her butt. Gina saw them, but got her stuff and left the house. At that point, Sandlin stopped, and Karen pulled her pants up and ran after Gina. Karen testified that she told Gina what happened, and
Karen also told her grand parents that night. Karen testified that , as a result of what happened, she went to live w ith her mom and has lived in Michigan, Florida , and New York since it happened. She said that the reason she went to Michigan was because Sandlin told her that , if she told anyone what happened, he had friends who would kill her. She also testified that she thinks about what happened every day, that she has trouble sleeping, and that she has missed a lot of school thinking about it. On cross

- examination, Karen testified that Sandlin never said anything to her during the assault or after. She also clarif ied that Sandlin ’ s threat was regarding the alcoh ol and marihuana

. Lester testified that he has been taking care of Karen since she was in diapers. He testified that , before this incident, Karen went to school every day, went to Sunday school, and playe d with4

her friends. Since the incident happened, Karen has been in counseling for two years and started cutting herself the first year. He said that she would cut herself once or twice a month. She would not go to school because she said the kids were t alking about her. Lester testified that , after the incident, Karen wanted to live with her mother, who is married to a migrant worker. He said they told him Karen attempted suicide while living with her mom. Sandlin did not call any witnesses at the p unishment hearing. After argument by Sandlin, the trial court sentenced him to ten years ’ imprisonment, with credit for time served. Then the trial court made the following statements, which are the basis of Sandlin ’ s complaint on appeal:

THE COURT : I ’ ll be honest with you. I ’ m disappointed that I only have ten years to give you. I ’ d love to throw a bunch more your way. I ’ ll be honest with you. I recall, obviously, the testimony about your compliance with probation and that you were partly compliant with probation. If I didn ’ t te ll you at the time I put you on probation

-- because I ’ ll go ahea d and say it. I ’ m the Judge that signed the papers. If I didn ’ t tell you at that time

-- I should have

-- that if y ou screwed this up, considering what a dea l you were getti ng -- and I think Mr. Grogan is being even generous calling it the deal of a lifetim e. I t may be the deal of th e century. If I didn ’ t tell you at the time, I sho uld have : Don ’ t make a mistake. Because the one you got a way with was

-- le t me tell you what this Court ’ s opinion is. Sexual assau lt of a child, in this opinion, robs the life of a child t he same as had you put a gun to her head and pulled the trigger. Because from now until the end of time

– From now until the end of time, t here is not going to be a time where this young lady doesn ’ t have that pop back into her head, ever. No amount of therapy, no amount of treatment, no amount of doctors with this and that is ever going to put her back the way she would have been had she been all owed to be a normal 13

- year - old girl. She was a baby. And I remember why you got probation. And I ’ m sorry I can only give you ten. I ’ m sorry because it ’ s not justice. But oftentimes, the justice system can ’ t do5

what justice is , and I ’ m limited to ten years, and I ’ m going to give you every single day of it

. Sandlin argues that this soliloquy by the trial court demonstrates that it failed to consider the entire range of punishment and the mitigating evidence. Therefore, he contends, he was denie d due process. We disagree. Due process requires that a neutral and detached judicial officer consider the entire range of punishment and mitigating evidence. See Gagnon v. Scarpelli , 411 U.S. 778, 786

– 87 (1973)

.

“ A court denies due process

. . . if it arbitrarily refuses to consider the entire range of punishment for an offense or refuses to consider the evidence and impo ses a predetermined punishment. ”
Teixeira v. State , 89 S.W.3d 190 , 192 ( Tex. App.

— Texarkana 2002 , pet ref ’ d ) (citing Granados

v. State , 85 S.W.3d 217 (Tex. Crim. App. 2002) ). Unless there is a clear showing to the contrary, we presume that the trial court did not act arbitrarily. See Roman v. State , 145 S.W.3d 316, 319 (Tex. App.

— Houston [14th Dist.] 2004, pet. ref ’ d)

. We have pre viously held that this type of complaint is not preserved for appellate review unless a timely objection is presented to the trial court. Teixeira , 89 S.W.3d at 192; Cole v. State , 757 S.W.2d 864 , 866 ( Tex. App.

— Texarkana 1988 , pet. ref ’ d ) ; s ee also Hull v. State , 67 S.W.3d 215, 217 (Tex. Crim. App. 2002) (defendant waived due process complaint when raised for first time on appeal). However, Sandlin asserts that failure to consider the full range of punishment is fundamental error, and also appears to arg ue that the error must have been expressly waived. He also argues that we may make a determination of a due process violation even if we find the issue was waived. See Brumit v. State , 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).6

In Brumit , the appellant complained that, based on certain comments made by the trial court before sentencing, he was denied his due process rights to an impartial tribunal and that such error was fundamental error. Id. at 640. The Amarillo Court of Appeals refused to address t he merits of his complaint, holding that he had forfeited them by failing to either object at the time of sentencing or assert them in a motion for new trial. Id. at 641. The Texas Court of Criminal Appeals rejected the appellant ’ s fundamental

- error argu ment, pointing out that whether a Texas appellate court may address unassigned error is determined by the test set forth in Marin v. State , 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)). Brumit , 206 S.W.3d at 644.
Marin held that there are three distinct kinds of rights : “ (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request. ” Marin , 851 S.W.2d at 279. Procedural default by failing to make a timely objection or motion applies only to the third category. See id. In Brumit , the Texas Court of Criminal Appeals declined to decide whether the appellant ’ s due process complaint was one that must be preserved by a timely objection t o the trial court, pointing out that the record in that case did not show partiality by the trial court or that a predetermined sentence was imposed. Brumit , 206 S.W.3d at 644

– 45. However, in a recent case, the Texas Court of Criminal Appeals considered whether a defendant’s right to be sentenced by a judge who considers the entire range of punishment is subject to procedural default. Grado v. State , 445 S.W.3d 736, 737 (Tex. Crim. App. 2014). In Grado , the court held that this right is a Marin category

- two right. Id. at 741. Under this category,7

“a defendant ‘need make no request at trial for the implementation of such rights, as the judge has

an independent duty to implement them.’” Id. (quoting Marin , 851 s.W.2d at 280). Thus, the
court held that “[i]n the absence of a defendant’s effective waiver, a judge has an independent duty

. . . to consider the entire range of punishment in sentencing a defendant irrespective of a defendant’s request that he do so.” Id. As such, the court held that, in the absence of an effective waiver, a defendant’s complaint that the trial judge did not con sider the full range of punishment will not be procedurally defaulted, and a court of appeals should consider the merits of the complaint. See id. at 743. In this case, there is no effective waiver. Therefore, we will consider the merits of Sandlin’s co mplaint. As in Brumit , in this case, the record does not show that the trial court refused to consider the full range of punishment or mitigating evidence. First, the comments by the trial court were made after it had heard and apparently considered all of the evidence presented at both phases of the revocation hearing. There is nothing in the trial court ’ s comments that indicates that it had predetermined the sentence to be imposed or that it did not consider the full range of punishment. Rather, the c ourt ’ s comments show that it based its final determination on the nature of the crime and the impact the assault had on Sandlin ’ s victim, who was thirteen years old at the time of the assault. Further, in its comments, the trial court referenced the evide nce that Sandlin had partially complied with the community supervision order. In addition, the record shows that it did not find8

all of the State ’ s allegations true, but just those allegations that it found were supported by the evidence. This suggests t hat it considered defense

- oriented evidence put on at the first hearing. 4 Since the record does not show that the trial court did not consider the full range of punishment or that it ignored the mitigating evidence, we find that the trial court did not er r. We overrule Sandlin ’ s point of error.

4 These comments are clearly distinguishable from those found in the cases cited by Sandlin where appellate courts found the trial court had predete rmined the sentence imposed. See McClenan v. State , 661 S.W.2d 108, 110 (Tex. Crim. App. 1983) , overruled on other grounds by DeLeon v. Aguilar , 127 S.W.3d 1 (Tex. Crim. App. 2004) ; Howard v. State , 830 S.W.2d 785 (Tex. App.

— San Antonio 1992, pet. ref ’ d); Jefferson v. State , 803 S.W.2d 470, 471 (Tex. App.

— Dallas 1991, pet. ref ’ d); Cole v. State , 757 S.W.2d 864, 865 (Tex. App.

— Texarkana 1988, pet. ref ’ d). In Howard , the trial court admonished the defendant before it placed him on deferred adjudication that it thought the defendant should “ go to TDC for 99 years ” and warned him that if he did something to jeopardize his liberty, “ [t]he chances are very good that you ’ ll get 99 years. ” Howard , 830 S.W.2d at 787. At th e hearing to revoke probation and adjudicate guilt, the trial court told the defendant, “ I admonished you, I told you you were facing the full range of punishment , from five to 99 years or life, ” then sentenced the defendant to ninety

- nine years ’ confineme nt. Id. In Jefferson , the trial court told the defendant when he placed him on deferred adjudication that , if he violated his probation, the court would give him a maximum twenty

- year sentence, and told the probation officer to make a note of it. Jeffe rson , 803 S.W.2d at 471. At the revocation and adjudication hearing, the judge asked the probation officer if he promised the defendant anything, and he said , “ [Y] es, 20 years. ” Id. at 472. The trial court then adjudicated the defendant guilty and sente nced him to twenty years ’ confinement. Id. at 470. Finally, in Cole , the trial court placed th e defendant on deferred adjudication, but told him that , if he came back for any reason, he would get seventy

- five years. Cole , 757 S.W.2d at 864

– 65. At the revocation and adjudication hearing, the trial court sentenced the defendant to seventy

- five years ’ confinement, and reminded him that he had a

“ contract ” with the court and that the court follow ed through with what it promised. Id . at 865. In each of these cases, the record showed that the trial court had told the defendant at the time he was placed on community supervision that he would receive a specific sentence if he violated probation, then imposed that sentence at the revocation hearin g. Thus, there was a clear showing in those cases that the trial court had not considered the full range of punishment and had imposed a predetermined sentence. In this case, however, there is no indication in the record, nor does Sandlin contend, that t he trial court told him at the time he was placed on community supervision that he would receive a certain sentence if he violated the supervision order. Further, as discussed above, the record in this case shows that the trial court considered the eviden ce and proceeded “ to dispose of the case as if there had been no community supervision. ” See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42.12, § 23(a) (West Supp. 2016).9

We affirm the judgment of the trial court.

Josh R. Morriss III Chief Justice Date Submitted : October 6, 2016 Date Decided: October 14 , 2016 Do Not Publish