Norma J. Perez v. State

Opinion issued February 23, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00645-CR

NORMA JEAN PEREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 01CR0805

MEMORANDUM OPINION

Appellant, Norma Jean Perez, pleaded guilty to state-jail felony theft in August

2001, and the trial court placed her on community supervision for five years. See

Tex. Pen. Code Ann . § 31.03(e)(4) (Vernon 2003). The State filed a motion to

revoke community supervision in March of 2005, which motion the trial court

granted. In three issues, appellant contends that the trial court (1) violated her right

to due process of law under the United States Constitution

and her right to due

course of law under the Texas Constitution

and (2) abused its discretion in revoking

her community supervision, and in assessing her punishment, because the court failed

to consider relevant evidence and expressly considered irrelevant matters that were

not in evidence. Concluding that each of appellant’s complaints is waived, we affirm

the judgment.

Facts

Appellant was placed on community supervision in August 2001, and the court

modified the terms of her community supervision in November 2001, apparently to

address her drug and alcohol abuse by, for example, ordering her to undergo

treatment. The State’s motion to revoke appellant’s community supervision alleged

that appellant had violated her community-supervision order by (1) committing the

offense of “Fail to ID Fugitive from Justice,” (2) failing to report to her community-supervision officer on several occasions, (3) failing to pay her community-supervision fee, (4) failing to pay court costs, and (5) failing to pay reimbursement

for appointed counsel.

At the hearing on the State’s revocation motion, the State called Robert Cloud,

appellant’s community-supervision officer, and appellant testified on her own behalf.

Cloud testified to appellant’s violations of the community-supervision requirements,

her problems with a continuing cocaine addiction, and her lack of success with out-patient or short-term drug-rehabilitation programs. Cloud opined that appellant

should be placed in a particular drug-rehabilitation program, SAFP, on a longer-term

basis because she had not succeeded in out-patient or short-term programs and needed

more structure. Cloud’s testimony continued as follows:

State:If I were to tell you that Ms. Perez does not want to go to

SAFP, what would your recommendation be?

Cloud:If she doesn’t want to get help for herself, then the only

thing I could see was if she went to prison. She got [sic]

revoked. Because I think by giving her an opportunity to

go to SAFP would be the chance to possibly save her life

and help her get on the right track. If she doesn’t choose

that—I know that’s her choice—then, being on probation,

she’s proven time and again that she can’t be on [it].

Appellant admitted that she had failed to report to her officer in four months

and that she had a cocaine addiction and drinking problems; she testified that she did

not want her community supervision revoked because she feared that her Pakistani

husband might take their young daughter to Pakistan if he was deported and because

her 15-year-old daughter was pregnant and needed her; and she testified to various

extenuating circumstances, including that she had had no transportation, that her

husband abused her and was a negative influence, and that she did not have funds to

pay what the community-supervision order required. Although her testimony on this

point is not very clear, it appears that she testified that she preferred out-patient

counseling for her drug problems, rather than treatment at SAFP, as recommended by

Cloud. During a short closing argument, the prosecutor asked that appellant be

placed in SAFP, and defense counsel suggested that the court also consider the

alternative of out-patient rehabilitation for appellant, so that she could remain with

her father.

The court found true two of the State’s allegations,

found that appellant had

thereby violated the community-supervision order, and assessed her punishment at

15 months in state jail. In pronouncing its sentence, the court made the statements

of which appellant complains on appeal. Because the trial court’s statements are at

the heart of appellant’s complaints, we set them out in full:

Court:Okay. Let’s start off talking about the case. Because it

doesn’t seem like anybody’s even considered the poor

victim in this case, Lottie Willoughby, who is out a ring,

somewhere between $1,500 and $20,000 restitution. Looks

like $1,500. We’ve got a victim that’s just out. She just

loses. And I really like to look at victims on cases. We’re

doing more than just shoveling people around the system.

We’re trying to do a little bit of justice. Now I see that the

Court gave Ms. Perez some excellent opportunities to take

care of her business. Maybe the Court knew more about

her case—and I’m not taking credit for this. And I do

mean credit—maybe the Court knew better than Ms. Perez

about the wonderful things she had to look forward to, such

as her children. And gave her chances on probation, and

then, gave her another chance on probation in the form of

an order modifying her probation. It looks like through

one-and-a-half years of extra treatment and drug

rehabilitation facilities that the Court and the justice system

and probation has thought of nothing more than to try to

help her through her drug addiction or substance abuse

problems.

But having said that, now is a really bad time to be

thinking about your children, when you’re sitting in jail.

Now is the wrong time to be bringing up that child thing.

That’s the thing you should have thought about four years

ago. I’m sentencing you to 15 months in the state jail.

When will those papers be ready?

State:Later this afternoon or first thing in the morning, Judge,

whichever you prefer.

Court:Let me be specific here. I’m finding true on the one she

agreed true on, which is number one and on number four

and nothing else.

Waiver

In three issues, appellant complains that the trial court’s above-quoted

statements both violated her constitutional rights and demonstrated an abuse of

discretion. However, the gist of her argument under all three issues is that the trial

court failed to act as a fair and neutral adjudicator, which she contends violated her

constitutional rights and constituted fundamental error. That is, each of her

issues—even those phrased in terms of abuse of discretion—is argued as if it

concerned error of constitutional dimension. Therefore, we address her three issues

together and construe them as raising constitutional challenges.

A party generally must object to preserve error. Tex. R. App. P . 33.1(a)(1).

“This rule ensures that trial courts are provided an opportunity to correct their

mistakes at the most convenient and appropriate time—when the mistakes are alleged

to have been made.” Hull v. State , 67 S.W.3d 215, 217 (Tex. Crim. App. 2002).

However, if the error is fundamental, the lack of an objection will not waive the error.

Blue v. State , 41 S.W.3d 129, 132-33 (Tex. Crim. App. 2000); see Tex. R. Evid.

103(d) (“In a criminal case, nothing in these rules precludes taking notice of

fundamental errors affecting substantial rights although they were not brought to the

attention of the court.”) . Also, if an objection would have been futile, the lack of an

objection will not waive the error. Graham v. State , 710 S.W.2d 588, 591 (Tex.

Crim. App. 1986). Appellant does not contest that she did not object below to the

court’s complained-of statements, but argues that an objection was unnecessary both

because the error was fundamental and because an objection would have been futile. A. Fundamental Error

Appellant compares this case to Blue v. State , in which the Court of Criminal

Appeals held that error, even if not preserved by an objection, could be noticed on

appeal if that error was fundamental. See 41 S.W.3d at 132-33 . In Blue , the trial

court made statements during voir dire that tainted the defendant’s presumption of

innocence. Id . at 132 (“Similarly, the comments of the judge in this case . . . ‘vitiated

the presumption of innocence’ before the venire . . . .”). The Blue court held that this

was fundamental error that did not require preservation by objection. Id. at 132 . Our

Court, relying on Blue and other authority of the Court of Criminal Appeals , has also

recognized that

[d]ue process requires a neutral and detached judicial officer. “A court’s

arbitrary refusal to consider the entire range of punishment would

constitute a denial of due process . . . .” Additionally, a court denies a

defendant due process when it refuses to consider the evidence or when

it imposes a predetermined punishment.

Jaenicke v. State , 109 S.W.3d 793, 796-97 (Tex. App.—Houston [1st Dist.] 2003, pet.

ref’d) (citations omitted; emphasis in Jaenicke ; quoting McClenan v. State , 661

S.W.2d 108, 110 (Tex. Crim. App. 1983) ); see Ex parte Brown , 158 S.W.3d 449, 456

(Tex. Crim. App. 2005) (“[A] trial court’s arbitrary refusal to consider the entire

range of punishment in a particular case violates due process.”). The Jaenicke Court

also recognized, however, that “[i]n the absence of a clear showing to the contrary,

a reviewing court will presume that the trial court was neutral and detached.” Id. at

796 ; accord Buerger v. State , 60 S.W.3d 358, 364 (Tex. App.—Houston [14th Dist.]

2001, pet. ref’d). Fundamental error is error that affects rights that are so

fundamental to the judicial system that they are granted special protection and cannot

be waived by inaction alone . Blue , 41 S.W.3d at 131 .

The trial court’s first alleged error was in failing to consider appellant’s

evidence that her community supervision should not be revoked because her children

needed her.

Specifically, appellant argues that the court (1) denied her the right to

be heard and to present evidence, in denial of her rights to due process and due course

of law, and (2) revealed a lack of impartiality when the court made the complained-of

statement.

However, the factfinder has the ability to consider whatever evidence it

chooses. State v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). If the court

thought that the testimony regarding appellant’s children was unpersuasive, the court

was at liberty to disregard it or to give it whatever weight the court saw fit. See id .

Accordingly, the court’s complained-of statement could simply have indicated the

court’s decision, as factfinder, not to give weight to that evidence. That is, on this

record, the court’s comment does not clearly or necessarily demonstrate that the court

had already decided not even to consider this evidence (not permissible), rather than

that it considered the evidence, but then decided not to give it weight (permissible).

Because the court’s comment does not clearly indicate that the court was anything

other than neutral and detached, we hold that appellant has not overcome the

presumption that the court acted neutrally and fairly in revoking community

supervision or in assessing punishment.

See Jaenicke , 109 S.W.3d at 797 .

Accordingly, appellant has failed to show that the alleged error was fundamental.

The second alleged error is the trial court’s supposed consideration, in revoking

community supervision and assessing punishment , of appellant’s failure to pay

restitution to the victim, when restitution had not been ordered and when no evidence

had been presented on the matter.

Specifically, appellant contends that the trial court

denied her due process and due course of law in considering restitution at all because,

by doing so, the court (1) was neither neutral nor detached, in that the court’s

statement about restitution revealed that the court disagreed with a predecessor

judge’s assessment of community supervision in the first place, and (2) deprived

appellant of notice of the grounds for revocation by, in effect, revising the terms of

community supervision to add restitution. Appellant’s arguments stand or fall on the

assumption that the trial court considered lack of restitution in revoking community

supervision or in assessing punishment. However, the court’s complained-of

comment does not clearly or necessarily show that the trial court did so. For example,

the statement may have been merely a comment on the background of the case.

Additionally, the court’s specific comment that the previous judge had given

appellant additional chances on probation does not necessarily amount to a criticism

of that judge, but could instead be a statement about how the prior, multiple attempts

to help appellant with her drug habit were indisputably ineffective. And the court’s

assessing imprisonment as punishment might be explained, for example, not by the

court’s supposed consideration of restitution, but instead by the undisputed testimony

that appellant’s prior drug treatment had been ineffective, by Cloud’s opinion that

appellant should be sent to jail for her own good if she did not agree to attend SAFP

for rehabilitation, and by appellant’s testimony that she thought that out-patient or

less intensive rehabilitation would suffice, rather than treatment at SAFP. Because

the court’s restitution comment does not clearly indicate that the court was not neutral

and detached, we hold that appellant has not overcome the presumption that the court

acted neutrally and fairly in revoking community supervision or in assessing

punishment. See Jaenicke , 109 S.W.3d at 797 . Accordingly, appellant has failed to

show that the alleged error was fundamental.

Moreover, the lack of certainty as to what the court meant by the two

complained-of statements is exactly what the contemporaneous-objection rule is

designed to prevent. See Castillo v. State , 739 S.W.2d 280, 297 (Tex. Crim. App.

1987) (“The purpose for the contemporaneous objection rule is to call the trial court’s

attention to the” error of which complaint is made). If trial counsel had objected, the

court could have made its meaning clear regarding the comments about restitution

and appellant’s children’s needs. For example, the court could have said that the lack

of restitution had some relation to the sentence in this case, which would have given

trial counsel the opportunity to argue that such evidence could not be considered,

which in turn would have given the trial court the opportunity to make a more fully

informed decision. Or the court could have indicated whether it was refusing to

consider evidence about appellant’s children’s needs at all, or whether the court had

considered that evidence, but had decided not to give it weight. We thus hold that

any error concerning the court’s complained-of statements was not so fundamental

that it excused appellant’s failure to object.

B. Futility

If it is clear that an objection would be futile, one need not be made to preserve

error. Jefferson v. State , 803 S.W.2d 470, 472 (Tex. App.—Dallas 1991, pet. ref’d).

Appellant argues that, even if the error is not fundamental, it would have been futile

for her to object because “the trial judge below gave no premonition of his reasons

until his final statement . . . . There was simply no chance for Counsel to lodge an

objection before the sentence had been pronounced, and on this record any objection

or subsequent motion would have been futile.”

Appellant argues that her case is like Jefferson , in which the court held that the

appellant had not waived his complaint that the trial court had unconstitutionally

predetermined punishment because of “the abrupt nature of the judge’s assessment

of punishment and thus defendant’s inability to recognize that the assessment of

punishment would be based on factors other than the evidence.” See id . (noting that

appellant’s new-trial testimony was that “Judge Baraka asked the probation man did

he promise me anything and he said yes, 20 years; and Judge Baraka said, you know

what time it is, 20 years.”). Unlike what appears to have occurred in Jefferson , the

court here made the statements concerning restitution long enough before he

pronounced appellant’s sentence for appellant to have objected that the court was

considering an improper matter. Moreover, we have already held that the court’s

statements concerning restitution and appellant’s children’s needs were not so clear

as to show bias, unfairness, or a lack of neutrality, and nothing else shows that the

trial court would not have considered an objection raised contemporaneously. Thus,

there is no reason to believe that an objection would have been futile.

Conclusion

Because the complained-of error does not rise to the level of fundamental error,

and because there is no reason to believe that an objection would have been futile, we

hold that appellant waived her appellate challenges by failing to object at trial. We

thus overrule appellant’s three issues and affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Higley, and Bland.

Do not publish. See Tex. R. App. P. 47.2(b).