Lackey v. State, No. 08-08-00012-CR (Tex. App. 12/16/2009)
| Decision Date | 16 December 2009 |
| Docket Number | No. 08-08-00012-CR.,08-08-00012-CR. |
| Parties | KYLE LESLIE LACKEY, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 366th District Court of Collin County, Texas, (TC# 366-83112-06).
Before CHEW, C.J., McCLURE, and RIVERA, JJ.
Kyle Lackey, Appellant, appeals the trial court's revocation of his community supervision. We affirm.
After pleading guilty to twelve counts of possession of child pornography, Appellant was sentenced to ten years of community supervision and ordered to pay a $1,500 fine on each count. The State later filed a motion to revoke his supervisions. Appellant pled true to six out of the State's eleven allegations, and the trial court, finding all eleven allegations true, revoked his supervisions and sentenced him to ten years in prison on each count, with Counts I and II to run consecutively and all other counts to run concurrently.
Appellant's original appellate counsel filed a brief with this Court contending that the trial court abused its discretion by: (1) sentencing Appellant to multiple punishments for the same offense in violation of the double-jeopardy clause when many of the counts alleged the same elements and descriptive language; (2) ordering, on revocation, Appellant's sentences to run consecutively when he ordered the sentences to run concurrently at Appellant's original plea hearing; and (3) failing to consider the entire range of punishment. Appellant's counsel later filed a motion to withdraw, and we granted it. We further ordered Appellant's new counsel to file a supplemental brief, raising any additional issues. Appellant's supplemental brief repeated that the trial court abused its discretion by ordering his sentences to run consecutively when the court previously ordered them to run concurrently, but counsel also raised three additional issues, namely, that the trial court's stacking order was void because he already began serving his sentence, that Appellant did not receive a fair and impartial hearing, and that the evidence did not support the trial court's findings on revocation.1
We begin first with a discussion of Appellant's final issue in his supplemental brief, which contends that the evidence was insufficient to support a finding of true on allegations 1, 2, 3, 9, and 10 in the State's motion to revoke. Because Appellant asks that we reverse the judgment revoking supervision upon determining that the evidence was insufficient to support a finding of true on the complained-of allegations, we interpret Appellant's complaint as one of sufficiency to support revocation.
In reviewing a probation revocation, we examine the evidence in the light most favorable to the trial court's findings to determine whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984). If there was proof of at least one violation of the terms of community supervision, the evidence is sufficient to support revocation. O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981). Moreover, a plea of true, standing alone, is sufficient to support revocation. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979); Brooks v. State, 995 S.W.2d 762, 763 (Tex. App.-San Antonio 1999, no pet.).
Here, the State's amended motion to revoke alleged eleven violations: (1) Appellant reported to the sex-offender therapist on September 5, 2007, smelling of alcohol; (2) Appellant attended sex-offender counseling on September 11, 2007, with alcohol on his breath; (3) Appellant attended sex-offender counseling on September 18, 2007, with alcohol on his breath; (4) Appellant's blood-alcohol level was .283 on September 25, 2007; (5) Appellant's blood-alcohol level was .108 on September 27, 2007; (6) Appellant consumed alcohol on August 1, 2007; (7) Appellant's SCRAM registered a continuous alcohol detection from September 27, 2007, through October 3, 2007; (8) Appellant initiated contact with minor children by sending a hand-written letter to his son on July 3, 2007; (9) Appellant initiated contact with minor children by talking to his niece; (10) Appellant accessed the internet without the court's permission; and (11) Appellant failed to perform any of his 160 hours of community service. Appellant pled true to allegations 4, 5, 6, 7, 8, and 11, and he further admitted to allegations 7 and 11 during his testimony at the motion-to-revoke hearing. The trial court found those allegations true. Therefore, we find Appellant's pleas of true and admissions were sufficient, standing alone, to support the trial court's revocation of supervision regardless of whether the evidence supported the court's findings on allegations 1, 2, 3, 9, and 10. See Moses, 590 S.W.2d at 470; Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); Williams v. State, 910 S.W.2d 83, 86 (Tex. App.-El Paso 1995, no pet.); Battles v. State, 626 S.W.2d 149, 150 (Tex. App.-Fort Worth 1981, no pet.). Accordingly, we overrule Appellant's fourth issue in his supplemental brief.
Appellant also contends that he was not afforded a fair and impartial hearing. In his original brief, Appellant's fourth issue alleges that the trial court entered a predetermined sentence and failed to consider the entire punishment range. Appellant's third issue in his supplemental brief asserts that the trial court's prejudicial comments exhibited bias. We disagree.
Due process not only requires that a neutral and detached judicial officer presides over the proceedings, but also that the judicial officer considers the entire range of punishment before sentencing a defendant. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). Absent a clear showing to the contrary, we presume that the trial court was neutral and impartial, and that it considered the entire range of punishment. Id.
The State asserts that Appellant's complaints are not preserved for our review. However, the Court of Criminal Appeals recently declined to decide whether a party must object below to judicial bias or impartiality to preserve error. Brumit, 206 S.W.3d at 644-45. Therefore, assuming error was preserved, we find there was no evidence that the trial court behaved without impartiality.
Judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd). As the Supreme Court stated, "expressions of impatience, dissatisfaction, annoyance, and even anger" in the ordinary conduct of court administration does not establish bias. Liteky v. U.S., 510 U.S. 540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) ().
Appellant's complaints are centered on the following comment from the trial court, which was uttered after the parties made their closing arguments for punishment:
Mr. Lackey, I looked at your SCRAM. I got those results e-mailed to me. There is a long period of time where I don't think you were sober. It's pretty apparent you have a drinking problem. What's also apparent is, you stood before me with Mr. Shapiro and basically told me you were going to do everything the Court asked you to do. I went out on a limb and gave you probation because not only did you plead guilty to each of these counts, but you then fled to Arizona. They had to pick you up and bring you back. So when you were placed on probation, you go out and start drinking and you show up to your sex treatment drinking and your probation. Then you say that — then I just heard testimony that you were taking a lot of painkillers. And you tell me you didn't break any laws, yet I know that you were drinking and driving at some point in time. I went out on a limb to give you probation, and it's only by the grace of God that you didn't go out there and hurt somebody else. I got lucky by putting you on probation, but the luck has run out.
We find that none of these comments show partiality or demonstrate that the trial court failed to consider the entire punishment range.
Appellant's first complaint is directed towards the trial court's comment that he received Appellant's SCRAM reports by email. Appellant contends that he was denied due process by the trial court's consideration of his SCRAM reports when he did not have the opportunity to review and address the reports. Appellant, however, pled true to the State's allegation that his SCRAM registered a continuous alcohol detection between September 27, 2007, and October 3, 2007. Because Appellant pled true to the allegation, there was no due process violation when the trial court considered the probation violation in assessing punishment.
Appellant next complains of the trial court's comment that he fled to Arizona and was extradited back to Texas. This comment does not show bias but appears to concern the history of the case and the trial court's initial reservations of placing Appellant on probation. See Grimes v. State, 135 S.W.3d 803, 819 (Tex. App.-Houston [1st Dist.] 2004, no pet.) ("Bias must come from an extrajudicial source and result in an opinion on the merits of the case other than what the judge learned from participation in the case."). However, we need not determine whether the comment invokes partiality as Appellant failed to adequately brief his contention. Appellant's argument consists of one conclusory statement with no legal analysis or citation to authority addressing arguments identical or analogous to that uttered at bar. Appellant's complaint on this comment, therefore, is inadequately briefed. See Tex. R. App. P. 38.1(h).
Appellant's third complaint is directed towards the court's comment that he was drinking and driving, and...
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