NUMBER 13-13-00548-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RUSSELL GLEN HORELICA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 329th District Court of Wharton County, Texas.
MEMORANDUM OPINION Before Justices Garza, Benavides, and Perkes Memorandum Opinion by Justice Perkes Appellant Russell Glen Horelica appeals his conviction for injury to a child, a
second-degree felony. See TEX. PENAL CODE ANN. § 22.04(e) (West, Westlaw through
2013 3d C.S.). By a single issue on appeal, appellant argues that the trial court violated
his right to due process by sentencing him to ten years of confinement in the Texas Department of Criminal Justice, Institutional Division, when it revoked his community
supervision for this offense. See U.S. CONST. amend. XIV. According to appellant, the
trial court failed to consider the entire punishment range—two to twenty-years—and
instead sentenced him to ten years’ confinement because that was the term of his
community supervision. We affirm.
I. BACKGROUND
On May 27, 2010, appellant pleaded nolo contendere to an information alleging
that he had committed injury to a child. Pursuant to a plea-bargain agreement, he was
placed on deferred-adjudication community supervision for a term of ten years.
On August 12, 2010, the trial court found that appellant violated the terms and
conditions of his probation. The trial court adjudicated him guilty of the offense of injury
to a child and revoked his deferred-adjudication community supervision. The trial court
suspended a ten-year prison sentence and placed appellant on community supervision
for a term of ten years.
On February 6, 2012, the trial court issued a “Judicial Summons” commanding
appellant to appear for a determination of whether a revocation motion should be filed for
the following alleged violation: “Defendant admitted to Marihuana use on February 2,
2012 (Admission Form signed by Defendant on 02/06/12).” On February 21, 2012, a
visiting judge presided over the summons proceedings and admonished appellant that
the State would move to revoke his community supervision in the event he again violated
community-supervision conditions. At the time of the summons, appellant was warned
he could face prison time in the event of revocation.
2 On May 30, 2013, the State moved to revoke appellant’s community supervision,
alleging appellant violated three of his community-supervision conditions. 1 At the
revocation hearing, appellant’s community-supervision officer testified that appellant
twice admitted to her that he had used marihuana while on community supervision. In
this regard, the State presented two “Admission Forms” wherein appellant admitted to
using and consuming an illegal drug; namely, marihuana, on each February 2, 2012 and
March 18, 2013. The trial court found that appellant violated the terms and conditions of
his community supervision and heard evidence on sentencing.2
During the punishment phase, the State presented evidence that appellant used
marihuana recreationally, but that he was not a drug addict in need of rehabilitation.
Appellant presented evidence from two family members that appellant was a caretaker
for his elderly mother. Appellant’s mother had suffered a disabling stroke and lived alone
with appellant prior to his arrest. After listening to the evidence and counsels’ closing
arguments, the trial court sentenced appellant to ten years’ confinement. In sentencing
appellant, the trial court stated, “Your original agreement when you were placed on
1 In its motion, the State alleged appellant:
[1] failed to . . . totally abstain from the use or consumption of . . . any kind or any substance capable of or calculated to cause intoxication or the illegal use of any controlled substance, to-wit: the defendant on or about February 6, 2012, admitted to CSO Linda Kerzee and CSO Rebecca Crabb to the use of marihuana on February 2, 2012; . . . [2] failed to . . . totally abstain from the use or consumption of . . . any kind or any substance capable of or calculated to cause intoxication or the illegal use of any controlled substance, to-wit: the defendant on or about May 23, 2013, admitted to CSO Linda Kerzee and CSO Rebecca Crabb to the use of marihuana on May 18, 2013; . . . [3] On or about the 2nd day of February, 2012, defendant did violate a lawful order of the judge of the 329th Judicial District Court, Wharton County, Texas, issued on [or] about the 12th day of August, 2010.
2 The trial court found the first two counts to be true, but concluded that the third count was not true because it did not include the requisite specificity. 3 probation was a ten-year sentence. I hereby sentence you to ten years . . . .” Appellant
did not object to the sentence in the trial court and did not file a motion for new trial
complaining of the sentence.
II. DUE PROCESS CHALLENGE
By his sole issue, appellant argues that the trial court violated his “due process
rights” by not considering the entire punishment range for his offense. See U.S. CONST.
amend. XIV. The State argues (1) appellant did not preserve error for review because
he failed to object in the trial court; and (2) appellant has not clearly demonstrated the
trial court arbitrarily failed to consider the full punishment range. We agree with the
State.
A. Standard of Review and Applicable Law
Whether the trial court denied appellant due process in sentencing is a question of
law which we review de novo. See Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim.
App. 2005) (en banc). A trial court denies due process if it arbitrarily refuses to consider
the entire punishment range for an offense or refuses to consider the evidence and
imposes a predetermined punishment. Teixeira v. State, 89 S.W.3d 190, 192 (Tex.
App.—Texarkana 2002, pet. ref’d); see also Cummings v. State, 163 S.W.3d 772, 776
(Tex. App.—Texarkana 2005, pet. ref’d). “Absent a clear showing of bias, a trial court’s
actions will be presumed to have been correct.” Brumit v. State, 206 S.W.3d 639, 645
(Tex. Crim. App. 2006); Earley v. State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi
1993, pet. dism’d). 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
4 particular punishment should be imposed.’ Ex parte Brown, 158 S.W.3d at 454 (quoting
Gonzales v. Johnson, 994 F. Supp. 759, 762 (N.D. Tex. 1997)).
In order to preserve review of such a complaint, a timely objection must be made
in the trial court. Cummings, 163 S.W.3d at 776; Teixeira, 89 S.W.3d at 192; see TEX.
R. APP. P. 33.1. “This rule ensures that trial courts are provided an opportunity to correct
their own mistakes at the most convenient and appropriate time—when the mistakes are
alleged to have been made.” Hull v. State, 67 S.W.3d 215, 218 (Tex. Crim. App. 2002).
In Hull v.
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NUMBER 13-13-00548-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RUSSELL GLEN HORELICA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 329th District Court of Wharton County, Texas.
MEMORANDUM OPINION Before Justices Garza, Benavides, and Perkes Memorandum Opinion by Justice Perkes Appellant Russell Glen Horelica appeals his conviction for injury to a child, a
second-degree felony. See TEX. PENAL CODE ANN. § 22.04(e) (West, Westlaw through
2013 3d C.S.). By a single issue on appeal, appellant argues that the trial court violated
his right to due process by sentencing him to ten years of confinement in the Texas Department of Criminal Justice, Institutional Division, when it revoked his community
supervision for this offense. See U.S. CONST. amend. XIV. According to appellant, the
trial court failed to consider the entire punishment range—two to twenty-years—and
instead sentenced him to ten years’ confinement because that was the term of his
community supervision. We affirm.
I. BACKGROUND
On May 27, 2010, appellant pleaded nolo contendere to an information alleging
that he had committed injury to a child. Pursuant to a plea-bargain agreement, he was
placed on deferred-adjudication community supervision for a term of ten years.
On August 12, 2010, the trial court found that appellant violated the terms and
conditions of his probation. The trial court adjudicated him guilty of the offense of injury
to a child and revoked his deferred-adjudication community supervision. The trial court
suspended a ten-year prison sentence and placed appellant on community supervision
for a term of ten years.
On February 6, 2012, the trial court issued a “Judicial Summons” commanding
appellant to appear for a determination of whether a revocation motion should be filed for
the following alleged violation: “Defendant admitted to Marihuana use on February 2,
2012 (Admission Form signed by Defendant on 02/06/12).” On February 21, 2012, a
visiting judge presided over the summons proceedings and admonished appellant that
the State would move to revoke his community supervision in the event he again violated
community-supervision conditions. At the time of the summons, appellant was warned
he could face prison time in the event of revocation.
2 On May 30, 2013, the State moved to revoke appellant’s community supervision,
alleging appellant violated three of his community-supervision conditions. 1 At the
revocation hearing, appellant’s community-supervision officer testified that appellant
twice admitted to her that he had used marihuana while on community supervision. In
this regard, the State presented two “Admission Forms” wherein appellant admitted to
using and consuming an illegal drug; namely, marihuana, on each February 2, 2012 and
March 18, 2013. The trial court found that appellant violated the terms and conditions of
his community supervision and heard evidence on sentencing.2
During the punishment phase, the State presented evidence that appellant used
marihuana recreationally, but that he was not a drug addict in need of rehabilitation.
Appellant presented evidence from two family members that appellant was a caretaker
for his elderly mother. Appellant’s mother had suffered a disabling stroke and lived alone
with appellant prior to his arrest. After listening to the evidence and counsels’ closing
arguments, the trial court sentenced appellant to ten years’ confinement. In sentencing
appellant, the trial court stated, “Your original agreement when you were placed on
1 In its motion, the State alleged appellant:
[1] failed to . . . totally abstain from the use or consumption of . . . any kind or any substance capable of or calculated to cause intoxication or the illegal use of any controlled substance, to-wit: the defendant on or about February 6, 2012, admitted to CSO Linda Kerzee and CSO Rebecca Crabb to the use of marihuana on February 2, 2012; . . . [2] failed to . . . totally abstain from the use or consumption of . . . any kind or any substance capable of or calculated to cause intoxication or the illegal use of any controlled substance, to-wit: the defendant on or about May 23, 2013, admitted to CSO Linda Kerzee and CSO Rebecca Crabb to the use of marihuana on May 18, 2013; . . . [3] On or about the 2nd day of February, 2012, defendant did violate a lawful order of the judge of the 329th Judicial District Court, Wharton County, Texas, issued on [or] about the 12th day of August, 2010.
2 The trial court found the first two counts to be true, but concluded that the third count was not true because it did not include the requisite specificity. 3 probation was a ten-year sentence. I hereby sentence you to ten years . . . .” Appellant
did not object to the sentence in the trial court and did not file a motion for new trial
complaining of the sentence.
II. DUE PROCESS CHALLENGE
By his sole issue, appellant argues that the trial court violated his “due process
rights” by not considering the entire punishment range for his offense. See U.S. CONST.
amend. XIV. The State argues (1) appellant did not preserve error for review because
he failed to object in the trial court; and (2) appellant has not clearly demonstrated the
trial court arbitrarily failed to consider the full punishment range. We agree with the
State.
A. Standard of Review and Applicable Law
Whether the trial court denied appellant due process in sentencing is a question of
law which we review de novo. See Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim.
App. 2005) (en banc). A trial court denies due process if it arbitrarily refuses to consider
the entire punishment range for an offense or refuses to consider the evidence and
imposes a predetermined punishment. Teixeira v. State, 89 S.W.3d 190, 192 (Tex.
App.—Texarkana 2002, pet. ref’d); see also Cummings v. State, 163 S.W.3d 772, 776
(Tex. App.—Texarkana 2005, pet. ref’d). “Absent a clear showing of bias, a trial court’s
actions will be presumed to have been correct.” Brumit v. State, 206 S.W.3d 639, 645
(Tex. Crim. App. 2006); Earley v. State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi
1993, pet. dism’d). 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
4 particular punishment should be imposed.’ Ex parte Brown, 158 S.W.3d at 454 (quoting
Gonzales v. Johnson, 994 F. Supp. 759, 762 (N.D. Tex. 1997)).
In order to preserve review of such a complaint, a timely objection must be made
in the trial court. Cummings, 163 S.W.3d at 776; Teixeira, 89 S.W.3d at 192; see TEX.
R. APP. P. 33.1. “This rule ensures that trial courts are provided an opportunity to correct
their own mistakes at the most convenient and appropriate time—when the mistakes are
alleged to have been made.” Hull v. State, 67 S.W.3d 215, 218 (Tex. Crim. App. 2002).
In Hull v. State, the Texas Court of Criminal Appeals held that a defendant who
failed to object to the trial court’s imposition of a “zero tolerance” policy toward probation
forfeited his right to complain on appeal. Id. at 217. In Hull, the trial court informed the
defendant “in no uncertain terms” that it would revoke his probation and impose a prison
sentence if he violated any term of his probation. Id. at 217–18. The record showed
that the defendant understood the court’s “zero tolerance” policy to be overriding and
controlling and that the defendant failed to object at the revocation hearing. Id. at 218.
Accordingly, appellant could not complain for the first time on appeal that the trial court
denied him due process by failing to consider the entire punishment range because
appellant did not preserve that complaint for appellate review. Id.
Three years later, the Court of Criminal Appeals did not find waiver of a similar
issue, despite the defendant’s failure to object to the trial court’s sentence. See Ex parte
Brown, 158 S.W.3d at 453 n.3. In Brown, prior to the revocation hearing, the trial court
promised to impose the maximum sentence in the event of probation revocation and
subsequently, at the revocation hearing, imposed “the maximum sentence without any
5 explanation for its basis.” Id. It was impossible to determine from the record on direct
appeal whether the trial court imposed the maximum sentence for “very good reasons,”
such as the nature of the original offense and the seriousness of the probation violations,
or whether the trial court arbitrarily imposed the maximum sentence. Id. In Brown, the
defendant filed an application for writ of habeas corpus seeking review of the trial court’s
violation of his due process rights by prejudging his punishment.
In Brown, the Court of Criminal Appeals held habeas review was proper because
the trial record, alone, was inadequate to allow the “defendant to object and present a
valid constitutional claim at the time of [the trial court’s] conduct.” Id. “As with the vast
majority of claims of ineffective assistance of counsel, the trial record [was] insufficient to
allow an appellate court to resolve the issue.” Id. at 453. The Brown Court elaborated
that extra-record evidence of whether the trial court had a pattern of prejudging
punishment and the trial court’s own statements and testimony concerning whether it
prejudged punishment would be particularly useful in resolving a due-process issue
concerning prejudgment of punishment. Id. The Brown Court distinguished Hull as
being a case in which the prejudgment of punishment was clearly established in the trial
record so that the defendant could object in the trial court and then present the complaint
by direct appeal. See id. at 453 n.3.
B. Discussion
In this case, appellant argues that the visiting judge’s warning (“judicial summons”)
that a motion to revoke would be filed if he violated the conditions of probation again and
the trial court’s remarks at sentencing show the trial court either prejudged punishment or
6 erroneously believed it was bound to impose a ten-year sentence because appellant’s
community-supervision was for a ten-year term. Even assuming for the sake of
argument that appellant is correct that the record shows the trial court prejudged his
punishment, appellant waived error by failing to raise this complaint in the trial court. See
TEX. R. APP. P. 33.1; Hull, 67 S.W.3d at 218.
However, we agree with the State that this record does not show the trial court
necessarily prejudged punishment. See Ex parte Brown, 158 S.W.3d at 453 n.3 (“In this
particular situation . . . the trial record . . . is not necessarily adequate for the defendant
to object and present a valid constitutional claim at the time of conduct.”). “A trial judge
may certainly impress upon a . . . probationer the seriousness of the possible
consequences of a failure to abide by the terms and conditions of probation” so long as
he does not prejudge the outcome of a future revocation hearing. Id. at 456. Here, the
judicial summons appears to be a legitimate warning of a possible consequence for
further violating the community-supervision terms. Appellant was told the State would
file a motion revoke and he could face a prison sentence in the event of revocation.
This leaves the trial court’s remark at sentencing, “Your original agreement when
you were placed on probation was a ten-year sentence. I hereby sentence you to ten
years . . . .” Taken alone, this statement is not necessarily indicative of a predetermined
sentence, and other evidence was taken during the punishment hearing. The record on
direct appeal, however, is insufficient to allow this Court to determine whether this
7 statement shows any predetermination of appellant’s sentence. 3 See id. at 453.
Appellant’s sole issue on appeal is overruled.
III. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 1st day of May, 2014.
3 We note that the record reflects that the trial court actively listened to the evidence presented at the revocation hearing, promptly ruling on objections and attentively following the proceeding. While listening to the sentencing evidence, the trial court asked the State’s witness whether a substance abuse index test had been performed on appellant. While the witness could not testify as to the result of such a test, she believed one had been performed and went on to explain to the trial court that appellant was a recreational drug user as opposed to a drug addict. 8