In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-13-00044-CR ________________________
PRINCE ANTHONY LAJUAN PHEA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas Trial Court No. 59,848-E; Honorable Douglas R. Woodburn, Presiding
August 6, 2014
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Pursuant to a plea bargain, on May 18, 2011, Appellant, Prince Anthony Lajuan
Phea, was convicted of possession of cocaine,1 a state jail felony, and sentenced to two
years confinement, suspended for two years, and a fine of $2,000. In October 2012, the
State moved to revoke Appellant’s community supervision on the grounds he had
violated the terms and conditions of community supervision. Appellant entered a plea of
1 TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010). true to the allegations in the State’s motion, and after evidence was presented, the trial
court found the allegations to be true, revoked Appellant’s community supervision and
sentenced him to two years confinement in a state jail facility and a $2,000 fine. By two
issues, Appellant asserts he was denied due process of law under the United States
Constitution and Article I, Section 19 of the Texas Constitution because the trial court
refused to consider the full range of punishment. Additionally, the District Clerk included
attorney’s fees not ordered by the trial court in the Bill of Cost and that document was
incorporated into the final judgment. We modify the judgment to exclude those
attorney’s fees and affirm as modified.
BACKGROUND
At the guilty plea hearing in 2011, after announcing Appellant’s punishment of
two years was suspended, the trial court added, “[w]ell, I just want you to be sure and
abide by this because, you know, if you go to state jail, you’re going to be in there all
day, every day, for two years.” At the revocation hearing, after the defense rested, the
trial court announced, “I do find that the allegations are true. I sentence you to two
years in the state jail facility and a $2,000 fine.”
By two issues, Appellant argues he was denied a neutral and detached judge
who arbitrarily refused to consider the entire range of punishment and who imposed a
predetermined sentence. The State counters that Appellant’s failure to object waived
his complaint for appellate review2 and alternatively, maintains the trial court’s utterance
2 Courts of appeals are divided on whether the right to an unbiased, impartial judge is an absolute right that cannot be waived. See Hernandez v. State, 268 S.W.3d 176, 184 n.34 (Tex. App.—Corpus Christi 2008, no pet.) (holding a defendant has an absolute right to an impartial judge not only when guilt or innocence is at issue, but also during the punishment phase of trial). This Court has held that a trial court’s failure to consider the full range of punishment may be raised for the first time on appeal. See 2 at the original plea hearing does not show lack of impartiality. We disagree with the
State on Appellant’s failure to object, but agree with the State that there is no showing
of bias or partiality.
ANALYSIS
Due process protections extend to revocation proceedings because they deprive
an individual of liberty. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36
L.Ed.2d 656 (1973). The Texas Constitution requires no less. See Leonard v. State,
385 S.W.3d 570, 577 (Tex. Crim. App. 2012) (citing Caddell v. State, 605 S.W.2d 275,
277 (Tex. Crim. App. 1980)). Due process requires a neutral and detached hearing
body or officer. Hernandez v. State, 268 S.W.3d 176, 182 (Tex. App.—Corpus Christi
2008, no pet.). A trial court’s arbitrary refusal to consider the entire range of
punishment is a bias against a phase of the law upon which the defendant is entitled to
rely, depriving the defendant of a neutral and detached judge, and thereby violating the
defendant’s right to due process. Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim.
App. 2005). Absent a clear showing of such bias, a trial court’s actions will be
presumed to have been correct. Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App.
2006).
A person convicted of a state jail felony is not entitled to parole or good conduct
time. See Best v. State, 118 S.W.3d 857, 866 (Tex. App.—Fort Worth 2003, no pet.).
Article 42.12, section 15(h)(1) provides that a defendant confined in a state jail facility
does not earn good conduct time for time served. TEX. CODE CRIM. PROC. ANN. art
__________________________ Grado v. State, No. 07-11-00468-CR, 2013 Tex. App. LEXIS 7989, at *8-12 (Tex. App.—Amarillo June 28, 2013, pet. granted Nov. 6, 2013) (mem. op.) (not designated for publication). 3 42.12, § 15(h)(1) (West Supp. 2014). Accordingly, a state jail sentence must be served
day for day. See Ex parte Baker, 297 S.W.3d 256, 259 (Tex. Crim. App. 2009)
(emphasis added). Here, the trial court’s statement at the original plea hearing that
Appellant would be required to serve “all day, every day, for two years” was nothing
more than an admonishment of the potential consequences of failure to abide by the
terms and conditions of community supervision. It was not an absolute promise to
impose an arbitrary punishment without considering the evidence to be presented at a
subsequent revocation hearing. As such, it does not establish a bias or a
predetermined sentence applied over a year after the original plea hearing. Here, there
is nothing in the record to indicate the trial court decided Appellant’s punishment without
considering the evidence. Appellant entered a plea of true to all of the State’s
allegations. Having examined the entire record, we conclude Appellant has not made a
clear showing of bias to rebut the presumption that the trial court’s action was proper.
The complained-of comments in and of themselves do not establish the trial court’s
refusal to consider the full range of punishment at the revocation hearing. See Earley v.
State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi 1993), pet. dism’d, 872 S.W.2d
758 (Tex. Crim. App. 1994). Appellant’s two issues are overruled.
ATTORNEY’S FEES
The written judgment in this case reflects the assessment of court costs “[a]s per
attached Bill of Cost,” and the District Clerk’s Bill of Cost reflects “Attorney fee(s) –
Probation Revocation . . . $400.” In order to assess attorney's fees as a court cost, a
trial court must determine that the defendant has financial resources that enable him to
offset in whole or in part the cost of legal services provided. TEX. CODE CRIM. PROC.
4 ANN. art. 26.05(g) (West Supp. 2014).
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In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-13-00044-CR ________________________
PRINCE ANTHONY LAJUAN PHEA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas Trial Court No. 59,848-E; Honorable Douglas R. Woodburn, Presiding
August 6, 2014
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Pursuant to a plea bargain, on May 18, 2011, Appellant, Prince Anthony Lajuan
Phea, was convicted of possession of cocaine,1 a state jail felony, and sentenced to two
years confinement, suspended for two years, and a fine of $2,000. In October 2012, the
State moved to revoke Appellant’s community supervision on the grounds he had
violated the terms and conditions of community supervision. Appellant entered a plea of
1 TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010). true to the allegations in the State’s motion, and after evidence was presented, the trial
court found the allegations to be true, revoked Appellant’s community supervision and
sentenced him to two years confinement in a state jail facility and a $2,000 fine. By two
issues, Appellant asserts he was denied due process of law under the United States
Constitution and Article I, Section 19 of the Texas Constitution because the trial court
refused to consider the full range of punishment. Additionally, the District Clerk included
attorney’s fees not ordered by the trial court in the Bill of Cost and that document was
incorporated into the final judgment. We modify the judgment to exclude those
attorney’s fees and affirm as modified.
BACKGROUND
At the guilty plea hearing in 2011, after announcing Appellant’s punishment of
two years was suspended, the trial court added, “[w]ell, I just want you to be sure and
abide by this because, you know, if you go to state jail, you’re going to be in there all
day, every day, for two years.” At the revocation hearing, after the defense rested, the
trial court announced, “I do find that the allegations are true. I sentence you to two
years in the state jail facility and a $2,000 fine.”
By two issues, Appellant argues he was denied a neutral and detached judge
who arbitrarily refused to consider the entire range of punishment and who imposed a
predetermined sentence. The State counters that Appellant’s failure to object waived
his complaint for appellate review2 and alternatively, maintains the trial court’s utterance
2 Courts of appeals are divided on whether the right to an unbiased, impartial judge is an absolute right that cannot be waived. See Hernandez v. State, 268 S.W.3d 176, 184 n.34 (Tex. App.—Corpus Christi 2008, no pet.) (holding a defendant has an absolute right to an impartial judge not only when guilt or innocence is at issue, but also during the punishment phase of trial). This Court has held that a trial court’s failure to consider the full range of punishment may be raised for the first time on appeal. See 2 at the original plea hearing does not show lack of impartiality. We disagree with the
State on Appellant’s failure to object, but agree with the State that there is no showing
of bias or partiality.
ANALYSIS
Due process protections extend to revocation proceedings because they deprive
an individual of liberty. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36
L.Ed.2d 656 (1973). The Texas Constitution requires no less. See Leonard v. State,
385 S.W.3d 570, 577 (Tex. Crim. App. 2012) (citing Caddell v. State, 605 S.W.2d 275,
277 (Tex. Crim. App. 1980)). Due process requires a neutral and detached hearing
body or officer. Hernandez v. State, 268 S.W.3d 176, 182 (Tex. App.—Corpus Christi
2008, no pet.). A trial court’s arbitrary refusal to consider the entire range of
punishment is a bias against a phase of the law upon which the defendant is entitled to
rely, depriving the defendant of a neutral and detached judge, and thereby violating the
defendant’s right to due process. Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim.
App. 2005). Absent a clear showing of such bias, a trial court’s actions will be
presumed to have been correct. Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App.
2006).
A person convicted of a state jail felony is not entitled to parole or good conduct
time. See Best v. State, 118 S.W.3d 857, 866 (Tex. App.—Fort Worth 2003, no pet.).
Article 42.12, section 15(h)(1) provides that a defendant confined in a state jail facility
does not earn good conduct time for time served. TEX. CODE CRIM. PROC. ANN. art
__________________________ Grado v. State, No. 07-11-00468-CR, 2013 Tex. App. LEXIS 7989, at *8-12 (Tex. App.—Amarillo June 28, 2013, pet. granted Nov. 6, 2013) (mem. op.) (not designated for publication). 3 42.12, § 15(h)(1) (West Supp. 2014). Accordingly, a state jail sentence must be served
day for day. See Ex parte Baker, 297 S.W.3d 256, 259 (Tex. Crim. App. 2009)
(emphasis added). Here, the trial court’s statement at the original plea hearing that
Appellant would be required to serve “all day, every day, for two years” was nothing
more than an admonishment of the potential consequences of failure to abide by the
terms and conditions of community supervision. It was not an absolute promise to
impose an arbitrary punishment without considering the evidence to be presented at a
subsequent revocation hearing. As such, it does not establish a bias or a
predetermined sentence applied over a year after the original plea hearing. Here, there
is nothing in the record to indicate the trial court decided Appellant’s punishment without
considering the evidence. Appellant entered a plea of true to all of the State’s
allegations. Having examined the entire record, we conclude Appellant has not made a
clear showing of bias to rebut the presumption that the trial court’s action was proper.
The complained-of comments in and of themselves do not establish the trial court’s
refusal to consider the full range of punishment at the revocation hearing. See Earley v.
State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi 1993), pet. dism’d, 872 S.W.2d
758 (Tex. Crim. App. 1994). Appellant’s two issues are overruled.
ATTORNEY’S FEES
The written judgment in this case reflects the assessment of court costs “[a]s per
attached Bill of Cost,” and the District Clerk’s Bill of Cost reflects “Attorney fee(s) –
Probation Revocation . . . $400.” In order to assess attorney's fees as a court cost, a
trial court must determine that the defendant has financial resources that enable him to
offset in whole or in part the cost of legal services provided. TEX. CODE CRIM. PROC.
4 ANN. art. 26.05(g) (West Supp. 2014). Here, the record reflects the trial court found
Appellant indigent and unable to afford the cost of legal representation both before and
after the revocation hearing.3 Unless a material change in his financial resources
occurs, once a criminal defendant has been found to be indigent, he is presumed to
remain indigent for the remainder of the proceedings. TEX. CODE CRIM. PROC. ANN. art.
26.04(p) (West Supp. 2014). Therefore, because there is no evidence of record
demonstrating that his financial resources had changed, we presume Appellant was
indigent at the time of revocation. In order to rebut that presumption the record must
reflect some factual basis to support the determination that the defendant was capable
of paying attorney's fees at the time of assessment. Barrera v. State, 291 S.W.3d 515,
518 (Tex. App.—Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887 (Tex.
App.—Amarillo 2009, no pet.). Here, the record does not contain a pronouncement,
determination or finding that Appellant had financial resources that enable him to pay all
or any part of the fees paid his court-appointed counsel, and we are unable to find any
evidence to support such a determination. Therefore, we conclude that the judgment
improperly orders the repayment of attorney’s fees. See Mayer v. State, 309 S.W.3d
552, 555-56 (Tex. Crim. App. 2010). When the evidence does not support an order to
pay attorney's fees, the proper remedy is to delete the order. Id. at 557. Accordingly,
we modify the judgment to include the following sentence: “As used herein, the term
‘court cost’ does not include attorney’s fees.” The trial court is ordered to direct the
District Clerk to prepare an amended Bill of Cost in accordance with the modified
judgment.
3 On December 7, 2012, the trial court appointed counsel for purposes of the revocation proceeding, and on February 13, 2013, the trial court appointed counsel for purposes of appeal. 5 CONCLUSION
The trial court’s judgment revoking Appellant’s community supervision is affirmed
as modified.
Patrick A. Pirtle Justice
Do not publish.