Brumit v. State

• Decision Date: 14 June 2006
• Docket Number: No. PD-043-05.,PD-043-05.
• Citation: 206 S.W.3d 639
• Parties: Wilborn H. BRUMIT, Jr., Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

206 S.W.3d 639

Wilborn H. BRUMIT, Jr., Appellant, v. The STATE of Texas.

No. PD-043-05.

Court of Criminal Appeals of Texas.

June 14, 2006.

David Crook, Lubbock, for appellant.

Kim Hayes, Asst. Crim. Dist. Atty., Lubbock, Matthew Paul, State's Attorney, Austin, for the State.

OPINION

HOLCOMB, J., delivered the opinion of the Court, in which KELLER, P.J., MEYERS, PRICE, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

Appellant was charged by indictment with aggravated sexual assault. Pursuant to an open plea agreement, appellant elected to have punishment assessed by the trial court. After hearing extensive evidence of repeated sexual assaults of appellant's twelve-year-old daughter, which began when she was five years old, and the repeated sexual assaults of one of her friends, who was twelve and thirteen at the time, the trial court sentenced appellant to life imprisonment in the Texas Department of Criminal Justice, Correctional Institutions Division.

On appeal to the Amarillo Court of Appeals, appellant argued for the first time that "[t]he trial court violated appellant's due process rights under the Fourteenth Amendment to the U.S. Constitution, and committed fundamental error, by failing to function as an impartial tribunal for sentencing purposes." Appellant raised the same issue under Article 1 § 19 of the Texas Constitution. Appellant's contentions are based on the trial court's comments just before sentencing appellant; to wit,

Mr. Brumit, I will explain to you what I am doing and why I am doing it, because I will never understand what you did or why you did it. You are a predator, the worst kind of predator. The reason being is that we have to teach our children today to be careful about people that they come into contact with for fear that something like this may happen to them. When it happens to a child, your own child, in your own home, it is just unforgivable. There is no way that anybody can justify understanding what you did or why.

I think it was in 1977 or '76, I was involved in the prosecution of a little six-year-old black child that was kidnapped in the front of his apartment complex and was killed after he had been sexually assaulted. That case made me think that anybody that ever harmed a child should be put to death.

When your ex-wife made the comments that she made yesterday, I fully understood, because I don't think there is anybody, any parent anywhere that can have any sympathy whatsoever for what you did, and to make your own daughter contemplate suicide at the age of 12 because she felt that your family had disowned her as if she had done something wrong.

Your punishment is going to deter you, and hopefully it will deter anybody else that might contemplate doing what you did. I have no reason to understand why the jury did what they did in Collin County. We had a case two weeks ago where seven or eight people on the panel wanted to give somebody 20 years for just touching their [step] daughter.

For that reason, I am going to sentence you to life in the penitentiary, and hopefully, somebody out there will understand this is wrong.

The court of appeals refused to address the merits of appellant's complaints, holding that appellant had waived them for failure to present them to the trial court, either at the time of sentencing or in his motion for new trial. See Brumit v. State, No. 07-03-0462-CR, 2004 WL 2754850 (Tex.App.-Amarillo 2004). Here, and in the court of appeals, appellant concedes that he did not raise these claims before the trial court. Nevertheless, appellant argues that under our plurality opinion in Blue v. State, 41 S.W.3d 129 (Tex.Crim. App.2000), we should reach the merits of his complaints and, similarly, the court of appeals erred in failing to do so. We granted review to determine whether "[t]he court of appeals erred by affirming the trial court's sentence, thereby violating Petitioner's due process rights under the Fourteenth Amendment to the Constitution of the United States, and Petitioner's rights to due course of law under the Texas Constitution." We affirm the judgment of the court of appeals.

At the hearing on the open plea, appellant was admonished, in relevant part, as follows:

The Court: Do you understand an open plea to the Court means there is no plea agreement between you and your attorney and the State's attorney? Do you understand that?

Appellant: Yes, sir.

The Court: It means that you would be pleading guilty here today to the charge of aggravated sexual assault, and that after the Court heard [sic] testimony next week on punishment, the Court would make a determination as to the punishment to be assessed. Do you understand that?

Appellant: Yes, sir.

The Court: And do you understand that the range of punishment for this offense is five to 99 years or life in the penitentiary, and an optional fine up to $10,000. Do you understand that?

Appellant: Yes, sir.

* * * * * *

The Court: Do you understand, Mr. Brumit, in addition — I told you what the range of punishment was. Do you understand that whatever sentence you would receive in this case, you would have to serve at least 50 percent of that sentence before you became eligible for parole?

Appellant: Yes, sir.

At the sentencing hearing, the State called both victims, both victims' mothers, and one victims' father. A Collin County Sheriff's deputy, who took appellant's confession, also testified. Appellant called his sister to testify in his behalf. Appellant did not testify.

M.M.B., appellant's daughter, testified that when she was five years old, appellant began to digitally penetrate her, usually while she slept. She testified that the pain would wake her, and she would discover that appellant had his hand under her clothes and his finger in her vagina. M.M.B. explained that, after this initial assault, appellant continued to digitally penetrate her about twice a week. When M.M.B. was six years old, she told her mother about the abuse. When M.M.B.'s mother confronted appellant about the outcry, she accepted appellant's excuses that the touching was accidental or unintended. After her mother declined to believe M.M.B., she testified that the abuse made her feel "useless," "dirty," and that the sexual assaults were her fault. M.M.B. testified that she did not tell appellant to stop or otherwise resist. She further testified that she was afraid to resist, primarily because of appellant's large stature.

M.M.B. testified that when she was eight years old, appellant raped her for the first time. M.M.B. had been sleeping and awoke to find appellant penetrating her vagina with his penis. M.M.B. explained that the rape was very painful. M.M.B. testified that appellant raped her this one time while the family lived in Lubbock County, but when the family moved to Collin County shortly thereafter, he continued to rape her, even though all of the sexual assaults stopped for about two months after the move.

Once in Collin County, appellant raped M.M.B. on two other occasions, and the digital penetration continued with increased frequency. When M.M.B. was twelve, she made another outcry to her mother. M.M.B. told her mother that she had packed all of her belongings and intended to move. M.M.B. explained to her mother that she was leaving because she had not believed the abuse allegations before. M.M.B. told her mother about the abuse that continued after she was six, and her mother decided to pack her bags and leave also. M.M.B.'s mother took her to a Dallas-area hospital for a rape exam, which M.M.B. described as painful, emotionally uncomfortable, and that it made her feel "dirty." M.M.B. and her mother stayed at a hotel until appellant was arrested.

M.M.B. testified about the after-effects of the abuse. She thought that her brother and grandmother blamed her for her father's predicament, although they did not say so. She testified that she saw a therapist to deal with the abuse, but it did not help her. M.M.B. was later hospitalized for suicidal ideation. She explained that, "I was thinking of different ways to kill myself to make everybody else's life better, because my brother hated me. He couldn't even look at me. And I had lost contact with the whole part of my dad's side of the family, and I just felt like I was doing nobody [sic] any good." M.M.B. had also threatened to take a "whole bottle of pills." She was prescribed anti-depressant medication, but it did not relieve her depression, rather, "it just made [her] gain a lot of weight." M.M.B. explained that the sexual abuse made her feel "worthless," "like ... an ugly duckling," who "wasn't good enough for anybody or anything, not even myself or my family." M.M.B. described the negative effects of the abuse on her social life and her relations with men, such as the boys at school and male teachers.

On cross-examination, defense counsel elicited testimony that when M.M.B. visited appellant in prison, he did not blame her, he told her that he had a sickness, and that he was sorry for what he had done to her.

Dana Brumit, M.M.B.'s mother, testified that she was married to appellant for fifteen years, but they were now divorced. Dana testified that she and appellant lived in Lubbock County and had two children, M.M.B. and an older son. The family moved to Collin County when M.M.B. was eight years old. When M.M.B. was six years old, she told Dana that appellant was sexually molesting her. Dana testified that when she confronted appellant, he denied that any abuse occurred. Appellant convinced Dana that some accidental touching may have taken place when he and the kids were roughhousing or when he was tickling M.M.B. Dana further questioned appellant about M.M.B.'s allegation that he had rubbed his erect penis against her while M.M.B. was sleeping in his bed, but appellant insisted that it was just an accident and no contact was intended. Appellant told Dana that M.M.B. must have "misunderstood" their roughhousing to...