Opinion issued July 7 , 2015 .

In The 

## Court of Appeals For The 

## First District of Texas

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- CR 01
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——————————— DANIEL DESANTIAGO
- CARAZA , Appellant

V. THE STATE OF TEXAS , Appell e e

On A ppeal from the 240th District Court Fort Bend County, Texas Trial Court Ca se No s . 12
- DCR
- 059402 , 12
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- 059 5 24, 12
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- 059902

MEMORANDUM OPINION Appellant, Daniel DeSantiago

- Caraza, pleaded guilty to aggravated robbery , 1 aggravated assault, 2 and arson , 3 and , after a presentence investigation

1 Appella te court number 01

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- CR, trial court number 12

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report was prepared and a punishment hearing held, the trial court assessed punishment at 60 years’ confinement for the aggravated robbery , 20 years’ confinement for the aggravated assault , and 20 years’ confinement f or the arson
. In a single issue on appeal, appellant contends he was denied due process because the trial court refused to consider the entire range of punishment and mitigating
evidence. We affirm.
BACKGROUND At appellant’s punishment hearing, Officer J . Thompson from the Rosenberg Police Department testified that on January 18, 2012, at approximately 3:30 a.m, he responded to a call involving a car fire. When he arrived, he assisted with security and then heard gunshots nearby. Thompson saw a gray Ford F150 pi ckup truck leaving the location and followed the truck until it stopped in front of

a ppellant’s stepfather’s home. Thompson initiated a traffic stop and spoke with the driver, a ppellant

. He ordered a ppellant and the passenger to lie face

- down on the ground. Appellant asked Thompson to shoot and kill him. Specifically, a ppellant
said he did not care about dying and asked Thompson “to blast him.” During the
detention , the passenger got up and fled. Because he had a “second subject now to deal with,” Th ompson shot a ppellant with his taser

. Thompson testified that he

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- 059524. 3 Appellate court number 01

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never found a weapon on a ppellant , and that the passenger was the person who had previously fired shots near the location of the burning car

. After Thompson’s testimony, the following exchan ge took place between the trial court and the prosecutor: [TRIAL COURT ] : All right. Thank you, sir. You are excused. Couns el, let me have you both at the bench. I don’ t know if you want this conversation on or off the record, b ut we have the defendant’ s no lo or guilty pleas, we have the plea sentence investigation report. Isn’ t the pu rpose of this hearing to put of record any disagreements as to what the PSI reports

. [PROSECUTOR] : I don’ t thin k it’ s just that matter, Judg e. I think what Mr.

— and I

— [TRIAL COURT ] : I’ m not going to spend an hour repeating all the testimony that was heard in the earlier case. [PROSECUTOR] : Ju dge, that’ s not the intent. But as I said e arlier, we do have to establish a record should [appellant] choose to appeal

— [TRIAL COU R T ] : Well, here’ s the

— have we executed plea papers? [PROSECUTOR] : He has, Judge, as to the guilt/innocence. [TRIAL COURT ] : Okay. [PROSECUTOR] : I guess what I’ m saying, Judge, I think that certa inly if there is other evidence that supports this defen dant’ s involvement, and I think what

— and [defense counsel] can stop me if I’ m wrong, which is I believe that certainly whil e he has pled and in that regard the Sta te of Texas doesn’ t distinguish readily between parties and principles. I believe that that’ s a v e ry significant core of events.4

[TRIAL COUR T ] : I just

— my real concern is should [defense counsel] present and examine the witne sses. I presume he wants to r efute some of what’ s in the PSI report. [PROSECUTOR] : He might, Judge, but the bur den still rests upon the State. [TRIAL COUR T ] : Has the State met its burden by

— by the

— ar e you satisfied that you’ ve got accurate, adequate plea papers that were drawn in these matters? [PROSECUTOR] : Yes, we are satisfied with those. Yes, sir, we are. [TRIAL C OURT ] : So what more do you need? [PROSECUTOR] : Judge, I believe that the Court can consider , for example, when the victims testify the Court can con sider his particular actions as they relate to the victim. [TRIAL COUR T ] : Okay. Should we then confine what we’ re g oing to b e testifying here about to this specific defendant’ s actions? [PROSECUTOR] : We certainly can do that. And I think, Judge, that ’ s what we were referencing his actions out there. [TRIAL CO URT ] : Well, really 10 percent of this focused on t hat. It s eems the rest was just totally repetitive w ith what we heard in the trial. [PROSECUTOR] : And, Judge, I understand it’ s repetitive to the Co urt, but it’ s not repetitive to a record. And so should this matter be appealed in its sum, then we jus t want to mak e sure that out of abundance of caution that we have a record that supports t he plea, as well as a record that support s whatever the C ourt’ s imposition it sentences. [TRIAL COURT ] : Well, why isn’ t the plea established by the plea papers? [PROSECUTOR] : I’ m sorry, sir?5

[TRIAL COURT ] : Why isn’ t the plea not established by the plea papers? [PROSECUTOR] : Judge, the plea itself is in terms of the guilt /innocence, but in terms of his particular involvement , I don’ t believe that the plea papers indicate

— [TRI AL COURT ] : Well, why did he execute pap ers of they didn’ t involve him? [PROSECUTOR] : I didn’ t say

— I didn’ t say that they didn’ t inv olve

— the level of his involvement, perhaps I s hould have been more clear. The level of his participation. If the Court doesn ’ t want to hear from those witness es , we certa inly won’ t present them. But we certainly want to have enough to show if they raise

— if they’ re raising, which I believe that they will, that he’ s ju s t a party, that h is involvement is minimal, and, therefore, w e thi nk that he should get a lenient sentence, I think that we would be enti tled to offer evidence that shows that his participation was more than just minimal. [ TRIAL COUR T ] : Okay. How many witnesses are we going to have? [ PROSECUTOR ] : Judge, I could p robably cut out two more. So I would say seven or eight. [ TRIAL COURT ] : So you’ re going to have eight hours’ worth of test imony to back up a guilty plea? [ PROSECUTOR ] : No, Judge. [ TRIAL COURT ] : You’ ve killed an hour already. [ PROSECUTOR ] : Judge, I th ink we started at 1:30, it’ s 2:10. A nd so I think he was one of the meatier witnesses, quite frank ly. [ TRIAL COUR T ] : Let’ s go along with it then. But I’ m not sure we’ re m aking good use of the time, and I’m not sure we’ re addressing any of [defense counsel ’s] concerns.6

[ PROSECUTOR ] : Well, I don’ t know all of his concerns. He can do that through cross

- examination. [ DEFENSE COUNSEL ] : We’ll

— we’ ll get there. But for right now I thin k we should limit as much as we can. [ PROSECUTOR ] : But the State has a right to put on our case

. [ TRIAL COURT ] : Do you [have] a right

— [ PROSECUTOR ] : And we’ re asking the Court to conside r the full range of punishment. [ TRIAL C OURT ] : You have presented a plea packet. And the Judge h as found that to be sufficient. Obviously, your signa ture is real l egible, but other than that, it’ s fine. [ PROSECUTOR ] : That’ s [sic] be yours and Ms. Patel’ s. [ TRIAL COUR T ] : These lawyers don’ t know how to write anymore. But I think

— my guess is there’ s been a satisfact [ory] ple a packet done through your plea of guilty or no contes t. So guilt/innocence is not an issue, is it? Or is it? [ PROSECUTOR ] : It is not. That’s correct, Judge. You’ re correct. [T RIAL COUR T ] : So

— of course I’ m correct. But I guess my concer n is can we confine it to those matters that are disput ed. Of course, you don’ t really know what’ s disputed so maybe a minimal presentation on your part, then fo llowed by [defense counsel’s] cross - examination would tend to focus wha t’ s in issue. Because I

— I either k now or am going to know everyt hing that’ s in these packets h ere, but that’ s going to take a little time as well. [ PROSECUTOR ] : Okay. [ TRIAL COURT ] : But go ahead a nd let’ s just see how it goes. [ PROSECUTOR ] : And I’ ll certainly speed things up, Judge.7

[ TRIAL COURT ] : Please. [ PROSECU TOR ] : And see if we can’ t cut out some things. [ TRIAL COURT ] : All right. Thereafter, the State presented an additional seven witnesses who presented evidence that appellant and his co

- actor , a 14

- year - old juvenile, had participated in a crime spree on t he night of the offenses that involved a car

- jacking, several armed robberies, and an arson. Multiple witnesses testified that they were shot at during the robberies , and at least one was injured. The crime spree culminated in the arrest detailed by Offi cer Thompson. The defense presented the testimony of appellant’s stepfather, and appellant
testified on his own behalf. A t the conclusion of the hearing, the trial court stated, “All right, c ounsel may I hear from each of you briefly in argument since I ’ve read all of the instruments that have been filed and attentively listen[ed] to you.” After hearing arguments by counsel, the trial court assessed punishment at 60 years’ confinement for the aggravated robbery and 20 years’ confinement each for the
agg ravated assault and the arson. DUE PROCESS In his sole issue on appeal, appellant contends that he “suffered a Due Process Violation when the trial court refused to consider the entire range of8

punishment and refused to consider relevant evidence that mit igated appellant’s punishment.” Applicable Law Due process requires a neutral and detached judicial officer. Gagnon v. Scarpelli , 411 U.S. 778, 786 , 93 S. Ct. 1756, 1762 (1973); Jaenicke v. State , 109 S.W.3d 793, 796 (Tex. App.

— Houston [ 1st Dist .] 2003, pet. ref’d). “A court’ s arbitrary refusal to consider the entire range of punishment would constitute a denial of due process

. . . .” McClenan v. State , 661 S.W.2d 108, 110 (Tex. Crim. App. 1983) (emphasis added). Additionally, a court denies a defendant due process when it refuses to consider the evidence or when it imposes a predetermined punishment. Howard v. State , 830 S.W.2d 785, 787 (Tex. App.

— San Antonio 1992, pet. ref’ d). In the absence of a clear showing to the contrary, a reviewing court will pre sume that the trial court was neutral and detached. See Steadman v.
State , 31 S.W.3d 738, 741

– 42 (Tex. App.

— Houston [1st Dist.] 2000, pet. ref’ d). “Absent a clear showing of bias, a trial court’s actions will be presumed to have been correct.” Brumit v. State , 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) ; see Steadman , 31 S.W.3d at 741. Analysis
A ppellant complains that the “trial court expressed it s opinion that it did not need to hear evidence from the offenses in this case[,]” and that the trial court9

m ade such statement “before [a]ppellant had a chance to present mitigating evidence, including overwhelming evidence that [a]ppellant did not remember the events in question and acted largely as a party.” Appellant also complains that the trial court “refu sed to consider evidence of [a]ppellant’s mental health history, his abusive childhood, and the recent death of a very close friend which affected his mental state prior to commission of the offenses.” The State responds that appellant was afforded “a ful l hearing to present evidence on his behalf and there is nothing in the record to indicate that the trial court did not consider the evidence presented at the hearing.” We agree with the State. While the trial court did question the State about why it ne eded to go into such detail about the facts of the underlying case, the record supports the conclusion that the trial court was not refusing to hear mitigating evidence, but was actually attempting to make sure that appellant’s counsel had sufficient
oppor tunity to address any issues appellant had with the PSI. This is reflected in the trial court’s statement, “ Let ’s go along with it then. But I’ m not sure we’re making good use of the time, and I’m not sure we’re addressing any of [defense counsel’s] conce rns .” Defense counsel agreed that his concerns could be
addressed on cross

- examination and with the trial court ’s statement that “[ f ] or right
now I think we should limit [the State’s exploration of the details of the case] as much as we can. ”10

There is no thing in the record to show that the trial court excluded or refused
to consider any mitigating evidence offered by either side . To the contrary, it heard from at least nine witness and considered the PSI that was admitted during the hearing, and , in doin g so , stated that it had “read all of the instruments that have been filed and attentively listen[ed] to you.” Accordingly, appellant has failed to rebut the presumption that the trial court was neutral and detached and
that its actions were correct. See Steadman , 31 S.W.3d at 741

- 42. We overrule appellant’s sole issue on appeal.
CONCLUSION We affirm the trial court’s judgment.

Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale. Do not publish

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