Raul R. Ricoy v. State

• Court: Court of Appeals of Texas
• Decided: July 30, 2014
• Docket: 05-12-01300-CR
• Status: Published

Opinion

AFFIRM; and Opinion Filed July 30, 2014.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01300-CR

RAUL ROBERT RICOY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F11-54024-P

MEMORANDUM OPINION Before Justices Fillmore, Evans, and Lewis Opinion by Justice Lewis Raul Robert Ricoy appeals the trial court’s judgment adjudicating his guilt for aggravated

assault with a deadly weapon and sentencing him to twelve years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice. Appellant contends the trial

court abandoned its role as a neutral and detached magistrate, violating his due process rights

under the United States and Texas constitutions. He also contends the trial court failed to

consider the entire range of punishment options when assessing his punishment because the court

had pre-determined that, upon a violation of the conditions of his probation, appellant would

receive a lengthy prison sentence. We affirm the trial court’s judgment.

On July 1, 2011, appellant pleaded guilty and judicially confessed to aggravated assault

with a deadly weapon. The record indicates this original offense involved choking a woman

until she was unconscious. The trial court placed appellant on deferred adjudication probation for four years in accordance with appellant’s plea bargain. But at the hearing the judge made

several remarks about the case, including: “I don’t like this case,” and “really you should be in

prison for it.” The judge told appellant:

And I want to tell you this right now, you got 20 years hanging over you. If you don’t do what this Court tells you to do, then I can give you that 20 years, and I want you to understand that I will not hesitate.

The following year, the State moved to adjudicate appellant’s guilt. The motion cited a list of

probation conditions with which appellant had been non-compliant, including reporting,

maintaining employment, and attending required BIPP classes. 1

At the hearing on adjudication, testimony also established appellant had been arrested

again while he was on probation, this time for assaulting his common-law wife. Appellant and

his wife testified and asked the judge to continue him on probation. The judge acknowledged on

the record that she was angry with appellant because of his behavior while on probation. She

reminded appellant that his range of punishment ran to twenty years and said that—if she were to

sentence him when she was angry—she might give him fifteen years. The judge stated she

would wait a day to sentence him so she could consider the sentence, because she “might be

leaning too harsh.” The hearing continued the next day, and the judge ultimately assessed

appellant’s punishment at twelve years in prison. He appeals.

Initially, it is undisputed that appellant did not object to any of the trial court’s comments.

Nor did he object to the sentence when it was assessed or in a motion for new trial. The State

argues his appellate issues are waived. Our rules of appellate procedure instruct that “as a

prerequisite to presenting a complaint for appellate review,” a timely request, objection or

motion must be made and ruled upon by the trial court. TEX. R. APP. P. 33.1(a)(1). The rule

1 BIPP is a Battering Intervention and Prevention Program “designed to help prevent domestic violence.” In Interest of J.W.M., 153 S.W.3d 541, 545–46 and n.2 (Tex. App.—Amarillo 2004, pet. denied).

–2– allows a trial court the opportunity to correct its own mistakes when convenient and appropriate,

i.e., when the mistakes are alleged to have been made. Hull v. State, 67 S.W.3d 215, 217 (Tex.

Crim. App. 2002). Appellant argues that the trial court’s errors were structural ones that affected

his substantial rights, and thus an objection was not required to preserve error. The

contemporaneous-objection rule applies even to due process violations. See id. at 217–18.

However, we need not decide whether error was preserved in this case, because the record does

not reflect partiality by the trial court or that a predetermined sentence was assessed. See Brumit

v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).

“Due process requires a neutral and detached hearing body or officer.” Id. Similarly, due

process is denied when a trial court arbitrarily refuses to consider the entire range of punishment

for an offense or imposes a predetermined sentence. Cole v. State, 931 S.W.2d 578, 579–80

(Tex. App.—Dallas 1995, pet. ref’d). However, absent a clear showing of bias, we presume a

trial court’s actions have been correct. Brumit, 206 S.W.3d at 645. Critical or disapproving

remarks to a party will not ordinarily support a bias or partiality challenge, unless they reveal an

opinion based on extrajudicial information. Youkers v. State, 400 S.W.3d 200, 208 (Tex. App.—

Dallas 2013, pet. ref’d). Our review of the record does not suggest any extrajudicial matters

influenced the trial court’s sentencing in this case. The trial judge’s comments when accepting

appellant’s plea appear to be in the nature of stern admonitions and warnings aimed at

motivating appellant to comply with the terms of probation; none indicates the judge

predetermined appellant’s sentence if he violated the terms of probation. Nor did the court later

sentence appellant at the adjudication hearing to the maximum punishment or to a sentence

allegedly “promised” earlier. Cf. Jefferson v. State, 803 S.W.2d 470, 471–72 (Tex. App.—

Dallas 1991, pet. ref’d). Instead, the trial court heard evidence about appellant’s conduct during

probation. There was evidence concerning probation violations and a second arrest on the one

–3– hand, and of appellant’s wife’s support and his good intentions on the other. Although it is

apparent the judge was angry with appellant, she also made a point—on the record—of

distancing herself from her anger; she returned to assess a shorter sentence than she was

considering at the hearing.

We conclude the trial court’s comments reflected a reasoned response to the evidence

admitted at the hearing, not a predetermined decision to revoke or to impose a lengthy prison

sentence. See Hull, 67 S.W.3d at 220. Nothing in those comments provides a basis for

overcoming the presumption the trial court acted properly in sentencing appellant. See Brumit,

206 S.W.3d at 645. We conclude appellant’s due process rights were not violated, and we

overrule appellant’s three issues.

We affirm the trial court’s judgment.

/David Lewis/ DAVID LEWIS JUSTICE

Do Not Publish TEX. R. APP. P. 47

121300F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

RAUL R. RICOY, Appellant On Appeal from the 203rd Judicial District Court, Dallas County, Texas No. 05-12-01300-CR V. Trial Court Cause No. F11-54024-P. Opinion delivered by Justice Lewis, THE STATE OF TEXAS, Appellee Justices Fillmore and Evans participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 30th day of July, 2014.

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