Cole v. State

757 S.W.2d 864, 1988 Tex. App. LEXIS 2177, 1988 WL 90349
Court of Appeals of Texas·Decided August 30, 1988·No. 6-87-058-CR·Published·Cited by 59 cases

Opinions

CORNELIUS, Chief Justice.

Clifford Cole, Jr. appeals his conviction and seventy-five year sentence for possession of cocaine. He contends he was denied due process and due course of law because the trial judge refused to consider the full range of punishment for the offense and predetermined his punishment without regard to the evidence after revoking his unadjudicated probation. We find no reversible error and affirm the judgment.

On May 11, 1987, Cole pleaded guilty to possession of more than 28 but less than 400 grams of cocaine. The trial court withheld judgment and placed Cole on deferred adjudication with ten years’ probation and a $10,000.00 fine. At the time of entering the deferred adjudication, the trial judge stated:

THE COURT: Mr. Cole, I think your chances of success on probation are extremely slim, sir. Very, very slim. I am going to give you at this time an opportunity to withdraw your plea and go to the penitentiary today for a lot less years than you are going to get when I revoke your probation. You want to do that?
THE DEFENDANT: I can handle it.
THE COURT: You can handle it. Okay. All right, the Court withholds a finding of guilt in your case, Mr. Cole. And I am going to place you on probation under all the terms of the Probation Act of the State of Texas.
[865] [[Image here]]
[THE COURT:] Now, I have written down on the docket sheet, Mr. Cole, how many years you are going to get if you come back in here. I am going to show it to you. Because if I am not sitting here and some other judge is, I want him to read it. And what it says is that you are to get 75 years, when you come back in here. Okay? If you come back in here for any reason whatsoever, there won’t be an opportunity to give me an excuse. You get the 75, okay. Not a minute less. Whether it be this Court or some other Judge. You get the 75. Do you understand that? Do you have any questions about it?
THE DEFENDANT: No.
THE COURT: You are to disassociate yourself from persons of disreputable or harmful character. And that means every single friend that you have got right now, you have got to stay away from. Because you don’t have any friends that aren’t dopers. Okay? If the probation department tells me you are running with the same crowd, you get to do the 75? Okay? You understand me?
THE DEFENDANT: Yes, sir.
THE COURT: You have any questions about it?
THE DEFENDANT: No.
THE COURT: If you consume a controlled substance, do an (sic) cocaine, do any grass, you drink any liquor, then you do the 75. You understand me?
THE DEFENDANT: Yes, sir.
(Emphasis added.)

On June 22, 1987, Cole’s probation officer and a Harrison County deputy sheriff obtained a urine sample from Cole which tested positive for cocaine. The State filed a motion to proceed to adjudication of guilt, and on July 26 a hearing on the motion was held before the same judge.

The court heard testimony from the officers, Cole’s father, a drug counselor who had met with Cole, and a former college president who knew Cole. Cole’s witnesses testified that Cole was a good worker, that his drug usage was an illness, that he could rehabilitate with the proper program, and that a prison term would not be beneficial. The judge then accepted Cole’s former guilty plea and sentenced him to seventy-five years in the Texas Department of Corrections. In doing so, the judge stated:

[W]hen a probationer makes a contract with this Court, the Court expects the probationer to follow through on it and the Court also expects the Court to follow through. If he told you certain things that would happen, then if they happen, the Court expects to follow its own word. (Emphasis added.)

Cole contends that the court’s statements demonstrate that it had determined the sentence it would impose before hearing evidence and without regard to what the evidence would show. This, he contends, violated his Fifth and Fourteenth Amendment right to due process of law, and his right to due course of law guaranteed by Tex.Const. Art. I, § 19.

In Tex.Code Crim.Proc.Ann. art. 42.-12, § 3d(b) (Vernon Supp.1988), the procedures for unadjudicated probation, also known as deferred adjudication, are outlined:

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.

While this language does not guarantee the right to a separate punishment hearing, fairness requires that the defendant have the opportunity to offer appropriate mitigating evidence before the punishment is determined, either during the proceedings for revocation of probation and adjudication of guilt or afterwards upon request. Duhart v. State, 668 S.W.2d 384, 387 (Tex.Crim.App.1984).

It is a denial of due process for the court to arbitrarily refuse to consider the entire range of punishment for an offense or to refuse to consider the evidence and impose a predetermined punishment. McClenan v. State, 661 S.W.2d 108 (Tex.Crim.App.1983); see also, United States v. Long, 656 F.2d 1162 (5th Cir.1981); Field[866] ing v. State, 719 S.W.2d 361 (Tex.App.-Dallas 1986, pet. ref'd).

Here, the judge’s comments both when granting deferred adjudication and afterwards when assessing punishment can be construed as showing that he had determined the seventy-five year sentence prior to considering Cole’s presentation of mitigating evidence. Nevertheless, we find that Cole waived any due process violation by failing to make any objection to the punishment or the judge’s alleged failure to consider the evidence. Appellate courts will not consider any error which counsel could have called, but did not call, to the attention of the trial court at a time when such error could have been avoided or corrected. Rogers v. State, 640 S.W.2d 248 (Tex.Crim.App. [Panel Op.] 1982); Esquivel v. State, 595 S.W.2d 516 (Tex.Crim.App.), cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). The rule applies to errors of constitutional dimension. Rogers v. State, supra; Mendoza v. State, 552 S.W.2d 444 (Tex.Crim.App.1977).

Free access — add to your briefcase to read the full text and ask questions with AI

Cole v. State, 757 S.W.2d 864, 1988 Tex. App. LEXIS 2177, 1988 WL 90349 (Tex. Ct. App. 1988).

757 S.W.2d 864 (Cole v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Samnang Ham v. State
Court of Appeals of Texas, 2018
Joe Ray Cumpian, II v. State
Court of Appeals of Texas, 2018
Vernon Cooks, Jr. v. State
Court of Appeals of Texas, 2018
John Michael Shaver v. State
Court of Appeals of Texas, 2017
Dustin Bennett Sandlin v. State
Court of Appeals of Texas, 2016
Adrian Heath v. State
Court of Appeals of Texas, 2016
Garrett Novosad v. State
Court of Appeals of Texas, 2015
Daniel DeSantiago-Caraza v. State
Court of Appeals of Texas, 2015
Billie D. Washington v. State
Court of Appeals of Texas, 2013
Larry Donell Clark, Jr. v. State
Court of Appeals of Texas, 2013
Grazier Othella May v. State
Court of Appeals of Texas, 2011
Milton Rodgers v. State
Court of Appeals of Texas, 2011
Takisha Deshawn Rolfe v. State
Court of Appeals of Texas, 2011
Demarcus Ray Hancock v. State
Court of Appeals of Texas, 2010
Jose Angel Carrillo v. State
Court of Appeals of Texas, 2009
Shauna L. Castillo v. State
Court of Appeals of Texas, 2009
Gary Triston Guice v. State
Court of Appeals of Texas, 2008
Vick v. State
268 S.W.3d 859 (Court of Appeals of Texas, 2008)
Jeremy David Vick v. State
Court of Appeals of Texas, 2008
Andre Demont Brown v. State
Court of Appeals of Texas, 2008