In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-08-00081-CR

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ANDRE DEMONT BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

 

On Appeal from the 3rd Judicial District Court

Anderson County, Texas

Trial Court No. 28968

 

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley
This case has been transferred to this Court as part of the Texas Supreme Court's docket 1

equalization program.

2

MEMORANDUM OPINION

Andre Demont Brown appeals the adjudication of his guilt for the underlying offense of

burglary of a habitation, enhanced. Brown pled true to the allegations contained in the State's 1

motion to revoke, and the trial court sentenced him to thirty-five years' imprisonment.

Brown contends that he was denied due process because the trial court refused to consider

the full range of punishment and because of the trial court's bias against community

supervision—and because of its bias against Brown.

Pursuant to a plea agreement, Brown was placed on deferred adjudication community

supervision July 19, 2007, for the offenses of burglary of a habitation, enhanced, and unauthorized

use of a vehicle. The State filed a motion to revoke community supervision alleging that Brown

committed theft on September 27, 2007, failed to abstain from the use of narcotic drugs or other

controlled substances, and failed to report to his community supervision officer for the months of

August and September 2007.

The trial court heard Brown's plea of "true" to the allegations contained in the State's motion

to revoke, and, after hearing testimony, rendered its judgment adjudicating guilt and sentencing

Brown to thirty-five years' imprisonment on December 20, 2007. The range of punishment for this

enhanced offense is five to ninety-nine years. See TEX.PENAL CODE ANN. § 12.42(b) (Vernon Supp.

2008). 
Brown's adjudication proceeding was heard before a different judge than the judge who 2

placed him on deferred community supervision.

3

The Constitutional mandate of due process requires a neutral and detached judicial officer

who will consider the full range of punishment and mitigating evidence. See Gagnon v. Scarpelli,

411 U.S. 778, 786–87 (1973). A trial court denies due process when it arbitrarily refuses to consider

the entire range of punishment for an offense or refuses to consider mitigating evidence and imposes

a predetermined punishment. Ex parte Brown, 158 S.W.3d 449, 454 (Tex. Crim. App. 2005). This

occurs when a trial court actually assesses punishment at revocation consistent with the punishment

it has previously announced it would assess upon revocation. Id. at 456–57; Sanchez v. State, 989

S.W.2d 409, 411 (Tex. App.—San Antonio 1999, no pet.). In the absence of a clear showing to the

contrary, we presume that the trial court was neutral and detached. Fielding v. State, 719 S.W.2d

361, 366 (Tex. App.—Dallas 1986, pet. ref'd) (citing Thompson v. State, 641 S.W.2d 920, 921 (Tex.

Crim. App. 1982)).

Brown contends the record shows that the court refused to consider the full range of

punishment and thus violated his due-process rights because the trial court asked Brown whether he

was a convicted felon, and then made statements to Brown such as, "you got a hell of a deal" and

"You shouldn't have got probation," referring to Brown's original plea agreement to accept ten years'

deferred community supervision.2

A court denies due process and due course of law if it arbitrarily refuses to consider the entire

range of punishment for an offense or refuses to consider the evidence and imposes a predetermined
4

punishment. Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002); Johnson v. State, 982

S.W.2d 403, 405 (Tex. Crim. App. 1998). Such a complaint is not preserved for review unless a

timely objection is raised. Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet.

ref'd); Washington v. State, 71 S.W.3d 498, 499 (Tex. App.—Tyler 2002, no pet.); Cole v. State, 757

S.W.2d 864, 865 (Tex. App.—Texarkana 1988, pet. ref'd). No objection was made to the court's

ruling; thus, the complaint was waived. 

Even if we could properly reach this issue, the record does not show that the trial court

imposed a "predetermined" punishment, see Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App.

2006), nor does it show that the court had a bias against community supervision—it does show that

it believed community supervision was not appropriate for this particular defendant's situation.

Thus, no error would be shown in any event.

Brown further contends that the trial court imposed this sentence because of its bias against

Brown, based on a series of exchanges between court, counsel, and Brown.

At the hearing, Brown testified he had been in prison for twelve years and had been released

in 2004, that he was thirty-seven years old, and had three children. He testified that he "got back

. . . in the wrong crowd, got back on drugs." 

At the revocation hearing, the following exchange occurred:

THE COURT: Mr. Brown, and I'm not fussing at you. I fuss at everybody

that's plead [sic] guilty. It just amazes me. You've already been to prison. I mean,

what you did, I mean, you stole a pressure hose. You've just been a pain, you know.

You're just -- you're not so much the great big bad criminal, you're just a pain in the
5

butt. You just won't measure up to do what the rest of us have to do. You know, you

got cocaine. It's just -- it's just amazing to me. 

What does it take to get your attention? You say, well, I was young. Well,

hell, you did most of it this year. You're 30 -- you're in your mid thirties.

You've got three children. When's the last -- let me ask you. When's the last

time you paid child support for those children?

[Appellant]: Sir, I haven't paid it --

THE COURT: Never paid it?

[Appellant]: -- since 2000 -- I've been locked up since --

THE COURT: I understand that. Well, who do you -- who takes care of

those kids, their mother?

[Appellant]: Yes, sir.

THE COURT: And probably gets some help from the state tax payers.

[Appellant]: Yes, sir.

THE COURT: So me and him and everybody else in here has got to pay

child support for you while you didn't do anything else.

[Appellant]: Yes, sir.

THE COURT: I mean, you know, there's something as just being sorry.

The court, in pronouncing sentence, stated:

Mr. Brown, you went down for robbery and you went down for delivery of [a]

controlled substance. You were dealing drugs and you got to taking things from

people that didn't belong to you. Then you come along now -- you got a hell of a

deal. 
6

. . . .

You've been out of prison for three years and they let you go on probation. Didn't

you realize how -- how -- what a good deal you made? Did you? 

. . . .

You shouldn't have got probation. Let's be honest. And -- and I'm saying that, I don't

even know who signed this thing or who put you on probation, but that was the best

deal you could ever have. That's a better deal than I've ever seen. Do you

understand? 

The parties have a right to a fair trial. Dockstader v. State, 233 S.W.3d 98, 108 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref'd); Markowitz v. Markowitz, 118 S.W.3d 82, 86 (Tex.

App.—Houston [14th Dist.] 2003, pet. denied). One of the most fundamental components of a fair

trial is a neutral and detached judge. Dockstader, 233 S.W.3d at 108; Markowitz, 118 S.W.3d at 86.

A judge should not act as an advocate or adversary for any party. Dockstader, 233 S.W.3d at 108.

To reverse a judgment on the ground of improper conduct or comments of the judge, we must find

from a review of the entire record (1) that judicial impropriety was in fact committed, and

(2) probable prejudice to the complaining party. Id. Judicial remarks critical or disapproving of, or

even hostile to counsel, the parties, or their cases, ordinarily do not support a bias or partiality

challenge. Id. Such remarks may constitute bias if they reveal an opinion deriving from an

extrajudicial source; however, when no extrajudicial source is alleged, such remarks will constitute

bias only if they reveal such a high degree of favoritism or antagonism as to make fair judgment

impossible. Id.
Counsel directs our attention to our opinion in Stafford v. State, 948 S.W.2d 921 (Tex. 3

App.—Texarkana 1997, pet. ref'd). That opinion addresses a disqualification/recusal scenario, and

is not relevant to this analysis.

7

We conclude that the record does not show that the trial court predetermined Brown's

sentence in this case, nor does the record show bias or partiality on the part of the trial court. Brown 3

had been out of prison less than three years before entering a plea agreement for deferred

adjudication forthe offenses of unauthorized use of a vehicle and burglary of a building in July 2007.

He then failed to meet the requirements of his community supervision and was back before the court

in December 2007 on the State's motion to revoke. Annoyance or disgust with a defendant's

continued criminal behavior despite having more than one opportunity to change his ways—does

not reflect bias. The highest punishment range for this offense is ninety-nine years in prison, and the

trial court sentenced Brown to thirty-five years, near the lower range of punishment. 

We find no error. Brown's due-process rights were not violated, and we overrule his points

of error.

We affirm the trial court's judgment.

Bailey C. Moseley

Justice

Date Submitted: August 29, 2008

Date Decided: September 15, 2008

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