The opinion
GUITTARD, Chief Justice,
dissenting.
I cannot agree that appellant’s sentence of sixty years was imposed in accordance with “the due course of the law of the land” as required by article I, section 19 of the Texas Constitution. Review of this record has convinced me that the trial judge, when he deferred adjudication and placed appellant on probation, prejudged the sentence to be imposed in the event of a revocation of probation, and that later, after revoking probation and adjudicating guilt, the judge refused to consider pertinent evidence bearing on punishment. Consequently, I would reverse and remand for a new hearing on punishment before a different judge.
The majority takes the view that, at the original hearing, the judge did no more than admonish appellant concerning the range of punishment in the event probation should be revoked. I cannot agree. On receiving appellant’s plea of guilty, the judge properly admonished appellant of the statutory range of punishment for both of the two offenses charged: for one, confinement for life or any term not less than five years and a fine not to exceed $50,000, and for the other, confinement for life or any term not less than ten years and a fine not to exceed $100,000. At the close of the hearing, however, the judge declared:
[If] you violate your conditions— you’ve really had more than your share of second chances — and if you come before me again, let me tell you something: When these things are adjudicated, if they are, you’re not getting any ten years, you’re not getting any twenty years, you’re getting a substantial sentence. And I normally don’t do this, but I’m laying my cards on the table, and if you violate the conditions of your probation, you’re talking about 60 and up; is that clear?
In response to the State’s motion to adjudicate guilt, appellant pleaded “true” to the allegation that he had violated a condition of his probation in that he had driven his automobile when his operator’s license was suspended. He offered evidence, however, that he had employed a lawyer and was under the impression that an occupational driver’s license had been obtained. He also offered evidence that, although he had suf *368 fered from drug addiction for almost twelve years before he was placed on probation, he had since undergone extensive drug rehabilitation therapy, had become gainfully employed, had married, had engaged in a program of counseling teenagers with drug problems, and had enrolled in a graduate school to pursue a career of professional drug counseling. Two coworkers in the teen-age drug counseling program testified that appellant had made rapid progress in overcoming his drug dependence and had made positive contributions to the counseling program, working with the teen-agers twice a week. His mother testified that he was once again the son she had known twelve years before.
At the close of the hearing, the judge remarked that appellant “may have done 99 percent of what I asked,” but that in view of all the circumstances, he “just didn’t have any margin for error.” The judge assessed his punishment at sixty years confinement in each case, and added:
THE COURT: I believe I told you when you came before me that if you violated any terms and conditions of your probation what I was going to do, and I couldn’t be any clearer.
I cannot condone this procedure. When granting probation, a judge may wish to impress the offender with the seriousness of any violation of the conditions imposed, but in doing so, he cannot properly prejudge the ultimate sentence in the event of violation and thus preclude consideration of mitigating circumstances that might be relevant. We do not know what sentence the judge would have imposed originally if he had not granted probation. It seems likely that the severity of the threatened sentence was influenced by a desire to deter appellant from any violation. Nor do we know what sentence the judge would have imposed at the second hearing if the defendant had not originally been threatened with a sixty-year sentence,, but the judge leaves no doubt that he would not, under any circumstances, have reduced the sentence from that specified at the earlier hearing.
The trouble with this procedure is that the judge may originally threaten a heavier sentence than he would actually impose if no probation were granted, and then, if the defendant has committed even a trivial violation of probation, he may feel bound to maintain his credibility by imposing the threatened sentence regardless of any further evidence. I conclude that such a procedure is not in accordance with the due course of the law because (1) it effectively excludes evidence relevant to punishment, specifically, the evidence of appellant’s rehabilitation while on probation; (2) it precludes the judge from considering the full range of punishment prescribed by law; and (3) it deprives the defendant of a fair and impartial tribunal at the punishment hearing. Moreover, I cannot agree that appellant waived these errors.
1. Relevance of Evidence of Rehabilitation
The relevance of the evidence of appellant’s rehabilitation is supported by two statutory provisions. Section 1.02(3) of the Texas Penal Code (Vernon 1974) lists among the stated purposes of the Code “to prescribe penalties ... that permit recognition of differences in rehabilitation possibilities among individual offenders.” Also, article 37.07, section 3(a) of the Code of Criminal Procedure (Vernon 1981) expressly provides that at a punishment hearing evidence of the defendant’s character may be offered either by the State or by the defendant. In my opinion, the evidence of appellant’s rehabilitation while on probation is relevant to appellant’s character.
Both of these statutory provisions are apparently based on the philosophy of modern sentencing to take into account the person as well as the crime by considering information concerning every aspect of a defendant’s life. See Williams v. New York, 337 U.S. 241, 250 , 69 S.Ct. 1079, 1084 , 93 L.Ed. 1337 (1949); Wasman v. United States, 468 U.S. 559 , 104 S.Ct. 3217, 3225 , 82 L.Ed.2d 424 (1984). Possession of the fullest information possible concerning the defendant’s life and characteristics is highly relevant to the judge’s selection of *369 an appropriate sentence. Williams, 337 U.S. at 247 , 69 S.Ct. at 1083 .
With respect to fixing of punishment after revocation of unadjudicated probation, article 42.12, section 3d(b) of the Texas Code of Criminal Procedure (Vernon Supp. 1986), provides:
After an adjudication of guilt, all proceedings including assessment of punishment, pronouncement of sentence, granting of probation, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.
I read this statute to mean that punishment should be assessed as if at the time of the punishment hearing adjudication of the defendant’s guilt had not previously been deferred, not as if the hearing were being held at the earlier date. Thus, it means that the court should consider the defendant’s conduct while on probation, whether positive or negative, as if no probation had previously been imposed.
I find support for this interpretation of the statute in McNew v. State, 608 S.W.2d 166, 176-77 (Tex.Crim.App.1980). In McNew the defendant complained that after adjudication of his guilt under article 42.12, section 3d(b), the trial court had assessed his punishment at a term in excess of the period of unadjudicated probation previously allowed. McNew contended that this procedure would allow the trial court to “up the ante” based on the defendant’s conduct while on probation. The Court of Criminal Appeals rejected this contention on the authority of its previous opinion on this very point in Walker v. State, 557 S.W.2d 785, 786 (Tex.Crim.App.1977), and writing for the court, Judge Onion explained that under article 42.12, section 3d(b), the assessment of punishment “shall be as if adjudication of guilt had not been deferred.” If the court may consider the defendant’s bad conduct while on probation on the issue of punishment, then certainly, it may and should consider his good conduct during that period.
The majority opinion does not hold that the evidence of appellant’s rehabilitation was not admissible or relevant on the issue of punishment, but only that any error in the judge’s treatment of this evidence is harmless. I cannot agree. In the light of the strong evidence of rehabilitation in this record, I am not persuaded that a fair-minded judge would have excluded this evidence from his consideration of punishment, or that this judge would have done so if he had not announced in advance his intention to assess a sixty-year term.
In none of the cases cited by the majority in support of its application of the harmless error rule did the evidence show the complete change of personal habits and style of living that appellant showed in this case. Most of these cases did not concern any conduct of the defendant bearing on rehabilitation since the offense. Singletary v. State, 509 S.W.2d 572, 577 (Tex.Crim.App.1974); Cleveland v. State, 502 S.W.2d 24, 26 (Tex.Crim.App.1973); Logan v. State, 455 S.W.2d 267, 269 (Tex.Crim.App.1970); Miller v. State, 442 S.W.2d 340, 349 (Tex.Crim.App.1969); and Coleman v. State, 442 S.W.2d 338, 340 (Tex.Crim.App.1969).
The leading case and the only case cited by the majority that concerns conduct since the offense, is Allaben v. State, 418 S.W.2d 517, 519 (Tex.Crim.App.1967), in which a sodomy defendant was not allowed to testify that he was getting psychiatric treatment, although he did certify that he had graduated in the upper ten percent of his college class, had served three years in the military, was employed in electronics by General Electric, and had never been convicted of a felony. Writing for the court, Judge Onion said:
Evidence to be offered at the hearing on punishment pursuant to the provisions of Article 37.07, Section 2(b), Vernon’s Ann. C.C.P. is by no means limited to the defendant’s prior criminal record, his general reputation and his character. Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible.
It appears that the Court should have admitted the testimony excluded, but we cannot conclude, in light of the entire record, that trial court’s action consti *370 tutes such error as to call for reversal. [Emphasis added.]
Evidently the court concluded that the treatment, in itself, was but slight evidence of rehabilitation. Here, by contrast, the evidence of actual rehabilitation was strong and undisputed. Consequently, I cannot conclude in the light of this record that the error was harmless.
2. Consideration of Full Range of Punishment
After admonishing appellant at the earlier hearing concerning the range of punishment for the two offenses to which he had pleaded guilty, the trial judge, in unequivocal language, informed appellant that he would not consider that full range if the defendant should come before him again, but would consider only a sentence of at least sixty years — the maximum effective sentence under current law for a prisoner eligible for parole. See TEX.CODE CRIM. PROC.ANN. art. 42.18, § 8(b) • (Vernon Supp.1986). After pronouncing that sentence at the later hearing, the judge informed appellant that he had done exactly what he had said he would do. Thus the judge’s own declaration establishes that he refused to consider the full range of punishment provided by law. In effect, he excluded from consideration in assessing punishment the evidence of rehabilitation, which he had previously heard at the hearing on probation revocation.
I conclude that in this respect the trial court erred seriously — even egregiously— in that he failed to give appellant a fair trial on the issue of punishment. At the adjudication hearing, the defendant is entitled to offer appropriate evidence in mitigation of punishment if such evidence has not already been elicited during the proceeding. Duhart v. State, 668 S.W.2d 384, 387 (Tex.Crim.App.1984). It is well established that a prospective juror is disqualified if he is unwilling to consider the full range of punishment. Cuevas v. State, 575 S.W.2d 543, 545-46 (Tex.Crim.App.1978). When the judge assesses punishment, he should be no less open to consideration of the full range of punishment in the light of the relevant evidence. See McClenan v. State, 661 S.W.2d 108, 110 (Tex.Crim.App.1983). The judge abuses his discretion if he rigidly imposes a maximum sentence and refuses to consider evidence that he is required to receive and weigh. United States v. Long, 656 F.2d 1162, 1165 (5th Cir.1981).
I recognize the general rule that a sentence will not be disturbed on appeal if it is within the range provided by law, Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984); Nunez v. State, 565 S.W.2d 536, 538 (Tex.Crim.App.1978) (en banc). Nevertheless, the sentencing process is subject to appellate scrutiny. United States v. Hartford, 489 F.2d 652, 654 (5th Cir.1974); see Jackson, 680 S.W.2d at 814 (sentence by judge who had not heard evidence, based solely on presentence investigation report). My concern here is not the excessiveness of the sentence, but the fairness of the procedure adopted by the judge in determining the sentence. I consider that procedure fundamentally unfair and egregiously erroneous when the judge is unwilling to consider the full range of punishment, just as if the sentence were determined by a jury whose members were unwilling to do so.
3. Fairness of Sentencing Tribunal
This conclusion brings me to the constitutional question raised by appellant. In McClenan v. State, 661 S.W.2d 108, 109 (Tex.Crim.App.1983), the Court of Criminal Appeals, overruling its previous decisions, held that bias of the judge is ground for disqualification if the bias is of such a nature and such an extent as to deny the defendant due process of law. The court further held that the judge’s arbitrary refusal to consider the entire range of punishment could constitute a denial of due process, and, therefore, in that case, that the defendant’s motion to recuse the judge did allege a proper ground, although the record in the case did not support the motion. 661 S.W.2d at 110 .
This holding is in accordance with authorities holding that a fair trial by a fair tribunal is a basic requirement of due process. In re Murchison, 349 U.S. 133, 136 , 75 S.Ct. 623, 625 , 99 L.Ed. 942 (1955); United States v. Brown, 539 F.2d 467, 469 (5th Cir.1976). Due process requires a neutral and detached hearing body or officer. *371 Gagnon v. Scarpelli, 411 U.S. 778, 786 , 93 S.Ct. 1756, 1761 , 36 L.Ed.2d 656 (1973) (revocation of probation); Morrissey v. Brewer, 408 U.S. 471, 489 , 92 S.Ct. 2593, 2604 , 33 L.Ed.2d 484 (1972) (revocation of parole). As a test of fairness, the Supreme Court has held that every procedure which would offer a possible temptation to the average man as a judge not to hold the balance nice, clear, and true between the State and the accused denies the accused due process of law. Tumey v. Ohio, 273 U.S. 510, 532 , 47 S.Ct. 437, 444 , 71 L.Ed. 749 (1927); Brown v. Vance, 637 F.2d 272, 278 (5th Cir.1981).
In a number of situations a judge’s announced prejudgment has been held to constitute bias depriving the party of due process. United States v. Brown, 539 F.2d 467, 468-69 (5th Cir.1976) (judge’s statement “that he was going to get that nigger”), Leighton v. Henderson, 220 Tenn. 91 , 414 S.W.2d 419, 421 (1967) (judge’s statement of how he would decide case, regardless of proof); Rush v. Denhardt, 138 Ky. 238 , 127 S.W. 785, 786 (1910) (county judge’s statement that he would “revoke every [liquor] license now in existence”); see Pacific and Southwest Annual Conference v. Superior Court, 82 Cal.App.3d 72 , 147 Cal.Rptr. 44, 52-53 (1978) (judge’s statement of opinion on merits after preliminary proceedings).
I would hold that a procedure by which the judge announces in advance what punishment he will assess in the event of revocation of probation denies due process because the punishment is likely to be determined by that announcement rather than by the relevant evidence at the punishment hearing. I do not reach this conclusion on federal constitutional grounds because I consider that the same requirement of a fair tribunal is made by article I, section 19, of the Texas Constitution. See Mel-linger v. City of Houston, 68 Tex. 37 , 3 S.W. 249, 252-53 (1887); Masonic Grand Chapter of Order of Eastern Star v. Sweatt, 329 S.W.2d 334, 337 (Tex.Civ.App.—Fort Worth 1959, writ ref’d n.r.e.). I would hold, therefore, that the trial court’s sentencing procedure in this case is not in accordance with the due course of the law of the land.
4. Waiver
Finally, I cannot agree that appellant waived the improper and unconstitutional procedure by which his punishment was assessed. The majority opinion holds that such a waiver occurred because appellant should have called the judge’s attention to its error in precluding himself from considering all the evidence. Failure to object does waive rights unless the futility of an objection is apparent. Rovinsky v. McKaskle, 722 F.2d 197, 199-200 (5th Cir.1984); see Webb v. Texas, 409 U.S. 95, 97 , 93 S.Ct. 351, 353 , 34 L.Ed.2d 330 (1972) (failing to interrupt the judge in the middle of his remarks is not a basis for waiver). Here the evidence of appellant’s rehabilitation was admitted by the court on the issue of revocation of probation, but was excluded from the court’s consideration on the issue of punishment. The court might have held separate hearings on these issues, but was not required to do so. Duhart v. State, 668 S.W.2d 384, 387 (Tex.Crim.App.1984). According to Duhart , the defendant should have the opportunity to offer appropriate evidence on mitigation of punishment after revocation of probation and adjudication of guilt, if such evidence has not already been elicited during the proceedings and if the defendant requests the opportunity. Id.
Here, since the court held a combined hearing and the evidence had already been introduced and heard by the judge, the defendant was not required to offer the same evidence again. At the same time that the judge pronounced sentence, the judge announced, in effect, that he had not considered the mitigation evidence. This announcement was tantamount to excluding the evidence from consideration on the punishment issue. It must have been clear to appellant’s counsel, as it is to me in reading the record, that the ultimate decision had already been made and that no further request or objection would be entertained. Consequently, I would hold that no further objection or request was necessary to complain on appeal of this arbitrary and improper exclusion of evidence highly relevant to the issue of punishment.
*372 This case differs markedly from Rogers v. State, 640 S.W.2d 248, 268-64 (Tex.Crim.App.1981), cited in the majority opinion. In Rogers , the court “continued” a probation revocation hearing for sixty days to give the defendant a chance to “straighten up,” and at the end of that period, the court revoked the probation without hearing further evidence. The record showed, however, that at the sentencing hearing the judge made an inquiry of defendant’s counsel whether there was any reason why sentence should not be pronounced, to which counsel replied in the negative. The record also showed that despite several opportunities, the defendant made no objection to the procedure. Consequently, the appellate court held that any due process objection was waived. In the present case, by contrast, appellant had no such opportunity before the final decision was made.
The majority opinion also holds that appellant’s failure to file a recusal motion waived the error. This holding assumes that the judge’s remark at the original hearing threatening a sixty-year sentence was in itself ground for recusal. I conclude that notwithstanding this remark, the court’s prejudgment of the case was not so evident at the beginning of the revocation-punishment hearing that a motion for recu-sal was then required. The court was still free to consider all relevant evidence and assess the punishment in the light of the evidence. Appellant might reasonably have supposed at the beginning of the second hearing that the judge’s previous remark was made in the context of the original hearing and, therefore, was intended as an indication of what he would probably do on the basis of the evidence previously heard. The judge’s remark might reasonably have been interpreted as an effort to impress appellant with the serious consequences of a possible violation of probation rather than a prejudgment of the punishment to be assessed regardless of any further evidence, as the judge later showed it to be. Consequently, appellant could reasonably assume that the judge would perform his solemn duty to assess the punishment on consideration of any relevant evidence presented at a later hearing. At the close of the evidence, appellant’s counsel urged the court to consider the evidence of appellant’s rehabilitation. Not until the very end of the punishment hearing did the judged the punishment and had given no consideration whatsoever to this evidence. At that juncture the decision was made, and in my opinion no recusal motion was necessary.
In these circumstances, and in the absence of an intentional waiver such as that shown in Rogers , I would hold that appellant has not waived his basic constitutional right of assessment of punishment by a fair and unbiased tribunal. Although constitutional rights can be waived, such a waiver must be “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938); Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Crim.App.1972). I do not think this test was met either by appellant’s failure to file a motion to disqualify the judge before the probation revocation punishment hearing began or by his failure to voice futile objections at the close of the hearing when the punishment had already been announced. Consequently, I would reverse the judgment insofar as it assesses appellant’s punishment in each case at sixty years and would remand the case to the trial court with an instruction to conduct a punishment hearing before a different judge.