Hull v. State

29 S.W.3d 602, 2000 WL 1294318

• Court: Court of Appeals of Texas
• Decided: October 12, 2000
• Docket: 01-99-00127-CR
• Status: Published

Opinions

OPINION

MURRY B. COHEN, Justice.

A jury found appellant guilty of injury to a child and assessed punishment at 10 years in prison, probated, and a non-probated $10,000 fine. The State moved to revoke appellant’s probation for failing to report and for failing to present written verification of employment. Appellant pled true to failure to report and not true to failing to verify employment. The trial court revoked probation and assessed punishment at 10 years in prison. We reverse and remand.

Analysis

In the first point of error, appellant contends he was deprived of his liberty without due process of law because “no tolerance” probation (1) constitutes the judge’s commitment to a predetermined outcome, (2) precludes consideration of relevant evidence and of statutory options favoring the defendant, and (3) denies a hearing before an impartial judge. We agree.

As he announced his ruling, the judge stated:

Mr. Hull, I told you when you got probation, if you violated probation in any way, shape, or form I was going to revoke that probation. I am a man of my word, and I am going to carry out what I told you when I gave you this probation. You did not have an option at all to do anything other than every single rule in this probation every step of the way exactly as instructed by me and the probation department.

You know, here you come again. It’s all about poor Mr. Hull and his family. This case is and always has been about Marcus King, a three year old child, going to the hospital with a broken rib and a punctured lung because of your conduct.

Now, for reasons that I fail to understand, the jury having found you guilty, gave you the opportunity to have probation. And I gave you every condition of probation that I could think of in order to ensure that you would be strictly monitored and that you would follow these rules, because I told you that you were under zero tolerance, which meant that if you violated in any way, shape or form, you were going to be back here in an orange jumpsuit. You lasted 24 whole days on your probation after you got out of jail before you violated the rules of probation. This is one case where I can right a wrong. My only regret in this situation is that I am limited by the amount of punishment that I can assess you at ten years. But the jury made that choice and I have to live with it and you have to live with it. Having said that, I revoke your probation. I sentence you to ten years confinement in the Texas Department of Criminal Justice, Institutional Division. I will give you credit for your back time. See the bailiff. (End proceedings.)

These remarks show that the judge had committed himself to revoke probation for any violation whatsoever, no matter what exigent circumstances existed. That was error. It rendered him unable to apply the law the legislature enacted. See Tex. Code CRiM. P. Ann. art. 42.12, § 22(a) (Vernon Supp.2000) (probation may be continued despite violation of terms). The statutory option the judge abandoned in advance was that provided by article 42.12, section 22(a) — the possibility of being continued on probation despite a proven violation. Consequently, the “no tolerance” probation here shares the same quality of predetermination that has been consistently disapproved in cases involving pre-announced sentences. See McClenan v. State, 661 S.W.2d 108, 110 (Tex.Crim.App.1983) (an arbitrary refusal to consider the entire range of punishment would constitute a denial of due process); see also Earley v. State, 855 S.W.2d 260, 262 (Tex.App.—Corpus Christi, 1993), pet. dism’d as improvidently granted, 872 S.W.2d 758 (Tex.Crim.App.1994); Howard v. State, 830 S.W.2d 785, 787 (Tex.App.—San Antonio 1992, pet. refd); Jefferson v. State, 803 S.W.2d 470, 471 (Tex.App.—Dallas 1991, pet. refd) (all holding that remarks indicating the judge was delivering a promised outcome showed a lack of impartial consideration of both relevant evidence and statutory sentencing options); Fielding v. State, 719 S.W.2d 361, 368 (Tex.App.—Dallas 1986, pet. refd) (Guittard, C.J., dissenting).

Our law provides many justifications for conduct that would otherwise be criminal. For example, Penal Code Chapter 9, entitled “Justification Excluding Criminal Responsibility,” lists a number of them, and a fact finder must be willing to consider them all. “No tolerance” is the opposite of that concept. No tolerance is the absence of discretion, and discretion is the very essence of judging.

Appellant presented unchallenged mitigating evidence. Because the judge declined to consider it, appellant was harmed. Appellant and his wife testified that on Friday, November 6, 1998, the morning appellant failed to report, they went to their child’s school upon learning the child had been struck and urinated upon. The State neither contradicted nor impeached this evidence, nor did it argue that appellant and his wife were lying. Appellant became upset and forgot the appointment, but he called his probation officer the same day, spoke to her supervisor that day, and spoke to his probation officer at 7:30 a.m. on the next business day. Mitigating evidence was also presented concerning appellant’s failure to produce written documentation of employment. As a condition of probation, appellant had to serve 90 days in jail, beginning July 17, 1998. That period would have ended on Wednesday, October 14, 1998, five days (including a weekend) before appellant’s first reporting date of October 19. Although he failed to produce it for his probation officer when he reported on October 19 and 30, 1998, appellant produced uncontroverted written documentation and testimony in court that he was employed during that period. The probation officer testified that of her 120 to 130 cases, only this one was “no tolerance.”

Appellant admitted he did not personally report to his probation officer on November 6, 1998. He pled true to failure to report and testified he did not provide timely written verification of employment. That began the judge’s work, however; it did not end it. The judge then had to decide (1) whether to excuse appellant’s conduct and (2) if not, what to do about it. Those decisions constitute the harder work of judging, and they must be made after hearing and considering the evidence, not before.

Due process is denied if a judge is committed in advance to a particular outcome and does not impartially consider the evidence. While Texas law provides the basis for this reversal, the United States Supreme Court has held that a state court criminal defendant has a federal constitutional right not to be arbitrarily denied the full range of statutory discretion that exists under state law. See Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 2229, 65 L.Ed.2d 175 (1980); accord Anderson v. Jones, 743 F.2d 306, 308 (5th Cir.1984). This would include the statutory right to be considered for continued probation despite violation of conditions, especially ones that are minor and well explained. See Tex Code Crim. P. Ann. art. 42.12, § 22(a).

The State contends appellant waived this complaint by (1) not objecting when probation was imposed to the condition of “no tolerance” and (2) not moving to recuse the judge. We disagree.

“No tolerance” was never listed among the “conditions of community supervision” in the judge’s order. It is not mentioned at all in the judge’s order. Although the judge apparently told appellant orally, when sentencing appellant to probation, that no violations would be tolerated,¹ the written conditions the judge signed ordered appellant to “abide by the following conditions” and that “failure to abide by these conditions may result in revocation of community supervision_” (Emphasis added.) Because “the following conditions” and “these conditions” did not mention “no tolerance,” and because the written statement that violation “may result” in revocation is the opposite of no tolerance, we conclude that “no tolerance” was never a condition of probation. Rather, it was an attitude of the court toward appellant. Even if the words “no tolerance” had appeared in the judge’s order, they would not have required appellant to do anything different, ie., anything not already required by the other conditions. Thus, there was no condition of probation for appellant to object to.

Nor did appellant waive the complaint by not moving to recuse the judge. There was no reason to do so until after the judge ruled and immediately ended the trial. When originally sentencing appellant to probation, the judge told appellant orally that a violation “in any way, shape, or form” would result in revocation, but the judge’s written order retreated from that warning. It said nothing about “no tolerance”; instead, it stated that any violation “may result” in revocation, which is true in every case. We conclude that appellant was entitled to rely on the written conditions of community supervision signed by the judge, instead of the judge’s oral statement. See Eubanks v. State, 599 S.W.2d 815, 817 (Tex.Crim.App.1980) (court’s written order controls over oral announcement). That judgment indicated the judge would retain the discretion that the legislature authorized him to exercise on behalf of appellant. Relying on the judge’s signed order, as appellant had a right to do, appellant had no incentive to recuse the judge, until the judge spoke the words quoted above. In a similar case, of punishment promised in advance, the Dallas Court stated, “Until the judge assesses punishment the defendant is entitled to assume the judge will perform his solemn duty to assess punishment upon consideration of relevant evidence.” Jefferson, 803 S.W.2d at 472. “Under these conditions, the defendant could not know until after the judge had assessed punishment that he needed to request recusal.”² Id. For these reasons, the Dallas Court held it was excusable that the defendant never moved to recuse the judge, despite the judge’s earlier promised punishment when granting probation. Id. By then, a recusal would have been worthless because recusal grants future relief only. A recusal would not have undone the revocation. Id.

Finally, we hold that a motion for new trial was not required to preserve the error. “A motion for new trial is a prerequisite to presenting a point of error on appeal only when necessary to adduce facts not in the record.” Tex.R.App. P. 21.2. That is not the case here.³ Nor would a motion for new trial have allowed the trial judge to cure the error by granting any lesser remedy than is now required.

Nor is this error made harmless by appellant’s plea of true to one violation and his admission of the other. A proceeding to revoke probation is not like a typical civil or criminal case; in those cases, the fact-finder must rule for the plaintiff or the State if its charges are proved. Revocation of probation is fundamentally different in that, respect. A judge hearing a motion to revoke probation has absolute discretion to deny it, even though the probationer pleads “true,” stipulates to a violation, and judicially confesses. See Ex parte Tarver, 695 S.W.2d 344, 349 (Tex.App.—Houston [1st Dist.] 1985), aff'd, 725 S.W.2d 195 (Tex.Crim. App.1986). Our law expressly authorizes judges to continue probation “after determining that the defendant violated a condition of community supervision.... ” See Tex.Code Crim. P. Ann. art. 42.12, § 22(a). Such discretion is frequently exercised in favor of probationers. See Rogers v. State, 640 S.W.2d 248, 248-49 (Tex.Crim.App.1982); Wright v. State, 640 S.W.2d 265, 266-67 (Tex.Crim.App.1982); Hise v. State, 640 S.W.2d 271, 271-72 (Tex.Crim.App.1982). A judge must not abandon, either before hearing evidence or without considering the evidence, the statutory discretion the legislature has granted him.

The first point of error is sustained.

The judgment is reversed, and the cause is remanded.'

En-banc consideration was requested.

A majority of the Justices of the Court did not vote to grant en-banc

consideration. See Tex.R.App. P. 41.2(c).

Justice TAFT dissents from the denial of en-banc consideration. Justice NUCHIA joins Justice TAFT’S dissenting opinion from the denial of en banc consideration.

1 . No record of that hearing is before us.

2 . We disagree with Justice Taft's statement that Jefferson is distinguishable because the trial judge in that case gave less notice than the judge here. In Jefferson, the trial judge told the defendant when originally assessing probation that if he violated probation “in any way,” it would be revoked. 803 S.W.2d at 471. The Dallas court nevertheless unanimously excused the defendant from making a motion to recuse.

3 . That distinguishes this case from those like Solis v. State, 945 S.W.2d 300, 301 (Tex.App.—Houston [1st Dist.] 1997, pet. ref’d), in which the defendant complained the punishment was “grossly disproportionate” and thus had to present evidence to prove that.