Ex Parte Brown

158 S.W.3d 449, 2005 Tex. Crim. App. LEXIS 7, 2005 WL 50195

• Court: Court of Criminal Appeals of Texas
• Decided: January 12, 2005
• Docket: AP-73932
• Status: Published

Opinions

OPINION

PER CURIAM.

In this post-conviction application for a writ of habeas corpus, applicant asserts that Judge Baraka, the original trial court judge, violated his right to due process because he refused to consider the full range of punishment at the hearing on the State’s motion to adjudicate. We agree with applicant and therefore grant relief.

I.

Applicant was charged with robbery. He pleaded guilty on July 12, 1989, and Judge Baraka deferred any finding of guilt and placed him on probation for four years. Shortly thereafter, applicant violated the conditions of his probation by failing to report to the probation officer in August, September, and October, and by failing to pay his probation fees, fine, and restitution. At the adjudication hearing, applicant pleaded “true” to the allegations and testified:

Defense: What can you tell the Judge, for what good reason can you give him for having not [abided by the probation conditions]?

Applicant: There was really no good reason, Your Honor.

Court: You’re not asking me to do anything but what I said, aren’t you. I told you what I was going to do if you did this, didn’t I?

Applicant: Yes, sir. Your Honor.

Court: So tell me what it is that you’re going to ask me to do.

Applicant: I’m going to ask you to reinstate me.

Court: Go on. I’m listening.

Applicant: I’m just going to ask you to reinstate me.

Court: Remember that long conversation I had when I put you on probation?

Applicant: Yes, sir, Your Honor.

Court: And you can look me in the eye, and you’re actually going to ask me that?

Applicant: Yes, sir.

Court: Okay. Anything else?

Defense: Anything else you want to add?

Applicant: The reason why I didn’t report [was] because I had a lot of problems since day one when I got out of jail. I was smoking crack.

Court: That is strong.

Applicant: It’s terrible.

Court: What did I tell you when you got out and you had some problems?

Applicant: To come see you.

Court: Some [sic ] and see me. If you had a drug problem, I’d help resolve that for you. .Didn’t I tell you that?

Applicant: Yes, sir.

Court: If you needed a job, come to me, I’d find you a job. Didn’t I tell you that?

Applicant: Yes, sir, Your Honor.

Court: If you need a place to live, come to me. I’ll find you a place to live. Didn’t I tell you that.

Applicant: Yes, sir.

Court: But I said, sir, don’t fail to report. Don’t ever do it. Didn’t I tell you that?

Applicant: Yes, sir.

Court: I told you what I’d do about it if you did.

Applicant: You said you’d give me twenty years.

Court: Watch me. Pay attention. Any- • thing further?

There was nothing further, and Judge Baraka sentenced applicant to twenty years in prison, the maximum punishment. Applicant did not object. His conviction was affirmed on appeal.¹

Applicant then filed a writ of habeas corpus alleging that: 1) the trial judge denied him due process of law by prejudging his punishment; 2) his trial counsel rendered ineffective assistance of counsel by failing to object to the trial court’s sentencing procedure; and 3) his appellate counsel rendered ineffective assistance of counsel by filing an Anders ² brief which stated that there were no grounds that would warrant reversal.

At the time applicant filed his habeas writ, Judge Baraka was no longer the presiding judge of the convicting court. He had been succeeded by Judge King who made factual findings, including one that:

there are a number of cases on the books which remanded cases back to the Criminal District Court No. 2 due to Judge Baraka’s promises made at the time the defendant was placed on probation. [footnote: See, Jefferson v. State, 803 S.W.2d 470 (TexApp.-Dallas 1991, pet. ref d); Earley v. State, 855 S.W.2d 260, 262 (Tex.App.-Corpus Christi 1993, pet. dism’d); Howard v. State, 830 S.W.2d 785 (Tex.App.-San Antonio 1992, pet. ref d).] For a period of time when Judge Baraka would place a defendant on probation he told them if they “messed up” he would give them the maximum sentence at the revocation hearing. The statement of facts attached to the application for writ of ha-beas corpus indicated] that this case is another example of Judge Baraka prejudging punishment. The court finds that the record supports Applicant’s claim that he was promised the maximum sentence in this case if he messed up on probation and at the revocation hearing Judge Baraka imposed the promised sentence without consideration of any evidence. The court finds that Applicant is entitled to a new revocation hearing.

After reviewing the writ application, attached materials, and Judge King’s Findings of Fact and Conclusions of Law, this Court remanded to the trial court for further findings and conclusions. First, we asked the trial court to consider whether applicant’s due-process claim could be brought for the first time on a writ of habeas corpus when other probationers, as noted by Judge King, had brought this same claim by direct appeal. Normally, the writ of habeas corpus cannot be used to litigate matters that could have, and therefore should have, been raised on direct appeal. Second, we asked the trial court to give Judge Baraka an opportunity to testify or otherwise explain on the record whether he had, in fact, prejudged applicant’s punishment. Although the bare record could support a finding of punishment prejudgment — that Judge Baraka was simply carrying out the “promise” he made when he placed applicant on probation to give him the maximum punishment if he violated any condition of probation — there might also be other reasons, not apparent on the record, which would explain Judge Baraka’s sentence.

II.

On remand, a new district court judge, Judge Stricklin, found that applicant could not raise his due-process claim by writ of habeas corpus. Noting that the issue of prejudgment of punishment is an issue that can be appealed, the trial court found that the record did not justify applicant’s failure to raise the issue on appeal.³ Thus, the trial judge concluded, as a matter of law, that applicant was procedurally barred from raising the issue on a writ.

This is a conclusion of law that we review de novo. Although no appeal may be taken from a trial court’s decision to proceed with adjudication of guilt, the deferred-adjudication statute expressly permits a defendant to appeal the assessment of punishment. Article 42.12, section 5(b) states: “After an adjudication on guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.” Because applicant could have raised his due-process claim of prejudgment of punishment on direct appeal, he ordinarily would not be entitled to raise the issue by writ.

However, this particular case demonstrates an exception in which a habeas applicant may raise his due-process claim for the first time by writ of habeas corpus. As with the vast majority of claims of ineffective assistance of counsel, the trial record is insufficient to allow an appellate court to resolve the issue. Judge Baraka’s admonition — that he would impose the maximum sentence if applicant violated his probation — does not, by itself, show prejudgment of punishment. In the absence of other evidence or indications of prejudgment in the trial record, an appellate court could not resolve this claim. Two types of extra-record evidence, in pai'ticular, are useful to the resolution of a due-process issue of prejudgment of punishment.

First, a court could examine other cases from Judge Baraka’s court to determine what types of cases, and how often, the judge threatened to impose the maximum sentence, and how often he actually did assess such a sentence. That is the evidence that Judge King relied upon in finding that Judge Baraka did prejudge the sentence in this case. That pattern of prejudging punishment could not be shown by looking only to the trial court record in applicant’s case. But that was the only extra-record evidence that Judge King relied upon.

A second, even more important, type of relevant information not contained in the trial record would be Judge Baraka’s testimony or statements on this issue. Because applicant could not provide such evidence without going outside the trial record, he, like those defendants claiming ineffective assistance of counsel, may raise his due-process claim by writ of ha-beas corpus.

Therefore, we cannot adopt Judge Stricklin’s conclusion of law that applicant waived his due-process claim by failing to raise it on direct appeal.

III.

Judge Stricklin also found that Judge Baraka did not prejudge applicant’s punishment and concluded that applicant had failed to prove a due-process violation. Based on testimony offered at the hearing on remand, the trial court found that Judge Baraka imposed the maximum sentence based on what he “learned about the applicant from what was before him during the original plea and revocation hearing.” We conclude that the habeas record does not support the trial court’s conclusion.

In McClenan v. State,4, we noted, in dictum, that “[a] court’s arbitrary refusal to consider the entire range of punishment would constitute a denial of due pro-eess[.]”⁵ Texas trial courts have wide discretion in determining the proper punishment in a revocation hearing, but due process guarantees a defendant the right to a hearing before a “neutral and detached hearing body.”⁶ One federal court has stated, in holding that Judge Baraka prejudged a probationer’s punishment:

[A] defendant is entitled to a probation revocation hearing before a judicial officer who has not predetermined that probation should be revoked or that a particular punishment should be imposed.⁷

In supervising a probationer, a trial judge must “constantly remember that he may one day be cast in the role of trier of fact in a revocation proceeding, and that in that event he will be required to disqualify himself unless he has refrained from prejudgment.” ⁸

In this case, the habeas judge, Judge Stricklin, noted that “Judge Baraka testified that the lack of mitigating evidence at the adjudication hearing led him to impose the maximum sentence.” Judge Baraka did testify that he would have considered any mitigating evidence:

Q: (by the State’s attorney) If he had presented any substantial excuse or some substantial mitigating evidence, would you have taken that into consideration?

A: Sure, always. You never know. Sometimes, as they say, truth is stranger than fiction. I have had— for instance, it was known that if you failed to report, you are absolutely going to the penitentiary. Well, in 99.2 percent of the time, it was probably true; but I have had some people who come forth and based on all the facts and circumstances, I could put myself in the place of a person who may be distraught, not thinking right, making the right choices; and if those are giving me the options, I probably would not send them to the pen; but, you know, my main thing oftentimes was just to try to get their attention.

Q: You wanted to impress upon them the seriousness of the situation?

A: If it was with him, him, and whoever was watching that was ready to come before me.

Here, Judge Baraka testified that he would have considered mitigating evidence in deciding whether to revoke probation. He would, he said, consider the fact that a person was “distraught, not thinking right, making the right choices.” In that case he might not revoke probation and “send them to the pen.” That testimony tells us nothing, however, about whether Judge Baraka carried through on his original promise to applicant to impose the maximum sentence if he did, in fact, revoke probation.

Judge Baraka forthrightly acknowledged that he could not remember anything about this case; he was basing his testimony on nothing more than his usual routine and his review of the statement of facts in this case. From that review it looked to him as if he was simply making good on a promise he had made during the original plea hearing:

Q: (By applicant’s attorney) And it is my understanding that after reviewing the information that was provided to you that you have no personal recollection of this gentleman who is sitting next to me as James Otis Brown?

A: No, I do not.

Q: And — but you don’t remember the circumstances of why he appeared before you on the original plea or his revocation?

A: I haven’t a clue. Even now, to be honest with you, I don’t know.

Q: Okay. You made the statement that, “Based upon my reading and interpretation, it would appear that I had advised Mr. Brown that he would receive a 20-year sentence if he violated the terms and conditions of his probation.”⁹

And that was a statement you made after reading the transcript of the original plea; is that correct?

A: Correct.

Q: And you also state, “Upon revocation, I apparently sentenced Mr. Brown to 20 years.”

Fulfilling that promise is a reasonable interpretation of what could be made from that; is that correct?

A: Correct.

Q: Okay. But other than the interpretation that there was a prejudgment because he did receive what he was promised, you don’t have any specific recollection as to why him particularly one way or another?

A: No, not with him particularly.

Q: Or what facts went into your judgment in setting the sentence at that point?

A: With regard to him specifically, no.

Further, Judge Baraka, responding to applicant’s counsel’s question about trial counsel’s performance, said:

A: ... Sometimes mitigating evidence is nothing, just a guy giving me an excuse. Sometimes it has a value. Q: It could have a value?

A: Correct. But, as I said, in interpreting his case, I don’t know him personally. I don’t know all the things I said to him.

In writing the affidavit, I tried to be as honest and straight with it, and give him the benefit of the doubt, in fact; and by reading it, I have interpreted that I could have very well told him, in advance, that if I saw you again, you are going to get 20 years, and gave it to him, because generally, if I said I was going to do something — probably until the time that the Court of Criminal Appeals told me that I can’t do it; but generally when I told a person that I was going to do something, I rarely failed to do it.

Judge Baraka’s testimony does not support the conclusion that he did not prejudge applicant’s punishment Although he testified that he did not remember applicant at all, he normally — or as he put it, in 99.2% of the cases — followed through on the punishment he had promised a defendant at the time of placing a defendant on probation. There is nothing in this record to suggest that applicant’s case falls into the .8% of the cases in which Judge Bara-ka did not follow his normal routine.

Judge Baraka promised applicant at the original plea hearing that he would impose the maximum punishment of 20 years if applicant failed to report to his probation officer. He reminded applicant at the adjudication hearing of this earlier colloquy, and applicant agreed “You said you’d give me twenty years” if applicant failed to report to his probation officer. Judge Baraka then sentenced applicant to 20 years imprisonment, exactly as he had previously promised. There is nothing in the habeas record on remand which contradicts this promise of 20 years’ imprisonment and its imposition should applicant fail to report to his probation officer.¹⁰

As noted above, a trial court’s arbitrary refusal to consider the entire range of punishment in a particular case violates due process.¹¹ A trial judge may certainly impress upon a prospective probationer the seriousness of the possible consequences of a failure to abide by the terms and conditions of probation, but it is an altogether different thing to promise to impose the maximum punishment if a prospective probationer fails to abide by the terms of probation and then carrying through on that promise without “actually consider[ing] the evidence presented at the revocation hearing.”¹²

Given the state of this record, we conclude that the record continues to support Judge King’s original habeas finding- — also based on a reading of the very same statement of facts from the original plea hearing — that “this case is another example of Judge Baraka pre-judging punishment.”¹³

Although we adopt the trial court’s finding that applicant failed to show that Judge Baraka prejudged the decision of whether to revoke probation, we find that the record does not support the further finding that Judge Baraka did not prejudge the punishment to be assessed once he did decide to revoke probation.

For this reason, we grant relief and remand this case to the trial court at the point immediately after the adjudication of guilt. The trial court should re-assess an appropriate sentence within the entire punishment range. Copies of this opinion shall be sent to the Texas Department of Criminal Justice, Institutional Division.

HERVEY, J., dissented.

KELLER, P.J., joined by HERVEY, J., filed a dissenting opinion.

WOMACK, J., filed a dissenting opinion.

KEASLER, J., joined by KELLER, P.J. and HERVEY, J., filed a dissenting opinion.

KELLER, P.J., dissenting in which HERVEY, J. joined.

In Hull v. State, we held that a defendant who failed to object to the imposition of “zero tolerance” probation forfeited his right to complain about it on appeal.¹ In that case the defendant made no objection at the time of the imposition of probation, when the remarks were made, or at the time of revocation. In this case, applicant likewise failed to object at trial. He has, therefore, forfeited his right to complain that Judge Baraka pre-judged his punishment.

Applicant, however, also raises an ineffective assistance of counsel claim, claiming that trial counsel’s failure to object, and appellate counsel’s failure to complain about the failure to object, constitute deficient performance.

If Judge Baraka did not pre-judge applicant’s punishment, then counsel was not ineffective for failing to object. We have before us findings of fact from the original habeas judge and the subsequent habeas judge. The original habeas judge — Judge King — found that applicant was entitled to relief. The subsequent judge — Judge Stricklin — found that applicant was not entitled to relief. Judge King based his recommendation on the record without a hearing. Judge Stricklin held a hearing at which Judge Baraka testified. To the extent that there is a difference of opinion between the two habeas judges, and that difference rests upon a determination of Judge Baraka’s credibility, we should defer to the judge who heard Judge Baraka’s testimony.

Judge Stricklin found that Judge Baraka would have permitted applicant to explain why he violated the conditions of his probation, but applicant failed to do so. Judge Stricklin also found that bias, if any, came from what Judge Baraka learned about applicant from the original plea and the revocation hearing. The record supports these findings, as well as Judge Stricklin’s finding that Judge Baraka did not violate applicant’s constitutional rights. Because there was no violation of applicant’s constitutional rights, trial counsel’s failure to object did not constitute ineffective assistance of counsel.

I respectfully dissent.

1 . Brown v. State, No. 05-90-003 06-CR (Tex. App.-Dallas, filed February 26, 1991, pet. ref'd).

2 . See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

3 . Applicant also failed to object to Judge Bar-aka’s sentence in the trial court. In Hull v. State, 67 S.W.3d 215 (Tex.Crim.App.2002), we held that a defendant who failed to object to the imposition of "zero tolerance” probation forfeited his right to complain about that condition on appeal. In that case, the defendant did not object at the time the trial judge orally imposed the "zero tolerance” probation condition, and he did not object at the time his probation was revoked. In Hull, unlike the present case, the trial "record reflects that appellant understood the 'zero tolerance’ policy to be overriding and controlling.... Appellant was fully aware of the court’s policy toward his probation and did not object.” Id. at 218. In the present case, the record shows that applicant was aware that the trial judge had "promised” to revoke his probation if he violated any of the probation conditions and that he had "promised” to impose the maximum prison sentence if applicant violated those conditions. Here, however, Judge Baraka imposed the maximum sentence without any explanation for its basis. He might have imposed that sentence for very good reasons, based upon applicant's underlying robbery offense and because of the seriousness of the probation violations. In this particular situation, as with many ineffective assistance of counsel claims, the trial record, by itself, is not necessarily adequate for the defendant to object and present a valid constitutional claim at the time of the conduct.

4 . 661 S.W.2d 108 (Tex.Crim.App.1983), overruled on other grounds by De Leon v. Aguilar, 127 S.W.3d 1 (Tex.Crim.App.2004).

5 . Id. at 110.

6 . Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

7 . Gonzales v. Johnson, 994 F.Supp. 759, 762 (N.D.Tex. 1997).

8 . United States v. Sciuto, 531 F.2d 842, 846 (7th Cir.1976).

9 . The statement was made in an affidavit admitted as an exhibit at the hearing. That affidavit read, in its entirety:

I, Larry W. Baraka, swear that the foregoing statement is true and correct.

I have no personal recollection of Mr. James Otis Brown, nor the circumstances of his appearance before me.

I have read the statement of facts. Based upon my reading and interpretation, it would appear that I had advised Mr. Brown that he would receive a 20 year sentence if he violated the terms and conditions of his probation.

Upon revocation, I apparently sentenced Mr. Brown to 20 years in the Texas Department of Corrections.

10 . Judge Baraka's testimony, that if a defendant provided particularly persuasive mitigating evidence then he might back away from his original "promise” to revoke probation and send the probationer to the penitentiary, does not detract from the force of his original promise that he would, if he did revoke probation, sentence applicant to 20 years.

12 . Gonzales, 994 F.Supp. at 764.

13 . At the hearing on remand, applicant also called a Dallas County criminal defense attorney who had investigated numerous cases in which defendants had alleged prejudgment of punishment by Judge Baraka. This attorney claimed that the judge maintained a "hit list” with which he would keep track of the sentences he had "promised” defendants and he would assess those “promised” sentences upon revocation of probation. This attorney stated that there were “hundreds” of cases in which Judge Baraka had prejudged punishment.

1 . Hull v. State, 67 S.W.3d 215 (Tex.Crim.App. 2002).

11 . See McClenan v. State, 661 S.W.2d 108, 110 (Tex.Crim.App.1983); see also Earley v. State, 855 S.W.2d 260, 262-63(Tex.App.-Cor-pus Christi 1993), peí. dism'd, 872 S.W.2d 758 (Tex.Crim.App.1994) (concluding that Judge Baraka prejudged punishment when adjudi-eating defendant); Jefferson v. State, 803 S.W.2d 470, 472 (Tex.App.-Dallas 1991, pet. ref’d) (same); see also Gonzales v. Johnson, 994 F.Supp. 759, 762 (N.D.Tex.1997) (granting federal habeas relief after concluding that Judge Baraka prejudged punishment when adjudicating defendant; stating that "[a] 'neutral and detached’ decisionmaker does not prejudge evidence he has not seen.... Thus, a defendant is entitled a probation revocation hearing before a judicial officer who has not predetermined that probation should be revoked or that a particular punishment should be imposed”) (citations omitted). tradicts this promise of 20 years punishment and its imposition ... ”).