Salinas v. State
Decision Date | 01 December 1999 |
Docket Number | No. 04-98-00939-CR,04-98-00939-CR |
Parties | (Tex.App.-San Antonio 1999) Russell SALINAS, Appellant v. STATE of Texas, Appellee |
Court | Texas Court of Appeals |
Sitting: Phil Hardberger, Chief Justice Alma L. Lopez, Justice Karen Angelini, Justice
Russell Salinas ("Salinas") appeals the trial court's entry of judgment. In a sole point of error, he alleges that the trial court erred in denying him a fair sentencing hearing by not functioning as an impartial adjudicator. We affirm.
Salinas entered a plea of nolo contendre to the State's charge that he caused bodily injury to Joshua Salinas, his infant son. The trial court sentenced Salinas, a repeat offender, under a plea agreement to ten years incarceration in the institutional division of the Texas Department of Criminal Justice and assessed a $1,000 fine against him. The trial court denied Salinas's motion for new trial on October 23, 1998. Salinas filed a notice of appeal on November 6, 1998. On November 10, 1998, the trial court appended its order denying the motion for new trial with the statement, "Permission to appeal is granted." We have jurisdiction to hear Salinas's appeal because he has substantially complied with Texas Rule of Appellate Procedure 25.2(b)(3)(C). See, e.g., Riley v. State, 825 S.W.2d 699, 701 (Tex. Crim. App. 1992); Gomes v. State, 9 S.W.3d 170 ( )(en banc).
In a sole point of error, Salinas alleges that the trial court denied him a fair punishment hearing. Salinas contends that the trial court did not function as an impartial adjudicator and that the error was not harmless. Specifically, Salinas draws our attention to several exchanges between the court and witnesses, as well as the court and counsel. Salinas argues that these exchanges show that the court "had already made up its mind, even before testimony was presented."
The trial court's statements appear throughout the sentencing hearing:
1. Near the end of testimony of Dr. John H. Smith, a psychologist who examined Salinas:
....
Here we've got again another child injury, no threat.
....
[After testimony that Salinas should receive a probated sentence.] Do you think I should reward him for committing additional crimes?
....
Because if the records are true and he got five years before, now he goes and commits another crime, I'm telling this guy,
I mean, I don't think it's the way it ought to work. I mean, you know, I don't care what that is, it just can't work that way. I can't be, you know, giving the guy a medal for going on and committing more crimes. It ought to be the other way around.... Maybe I need to be examined....
2. During testimony by Reverend Pat DuBois, Salinas's pastor:
COUNSEL: Pastor,...[i]s he a threat to society?
....
REV. DUBOIS: No, not to society as a whole.
....
THE COURT: Would you consider a child society?
....
And your church is ready to support [Salinas]?
3. During Defense Counsel's statement to the court:
....
I don't care about their opinion. They are entitled to it. The parole is documented. I respect them for it but I decide.
4. During Defense Counsel's Closing Argument:
THE COURT: .... Now you want me to turn my face and slap him on the wrist and tell him it's okay. Then when he goes and hurts somebody, then you are not going to come here and say,
I don't care how long you stand there, counsel. He's been to the penitentiary before for the same thing. I'm going to deny his probation. There's no way I'm going to grant...probation. I mean if I do and this man commits something else, are you guaranteeing me that's [sic] he's not going to commit another crime when he committed one in '92 and he's back here again for the same thing?
....
I asked you a question, sir, are you guaranteeing this Court that?
....
I will not stick my neck [out] so somebody can cut it off without a guarantee, sir....
We review the sentence imposed by the trial court under an abuse of discretion standard. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Huynh v. State, 833 S.W.2d 636, 640 (Tex. App.-Houston [14th Dist.] 1992, no pet.). We note the "general rule that a penalty assessed within the range of punishment established by the legislature will not be disturbed on appeal." Flores v. State, 936 S.W.2d 478, 478 (Tex. App.-Eastland 1996, pet. ref'd); Huynh, 833 S.W.2d at 640. In the present case, the range of punishment for Salinas's offense (as a repeat offender) is 2-20 years incarceration with a fine not to exceed $10,000.00. See Tex. Pen. Code 12.33 (Vernon 1994). Salinas's punishment, ten years, is within the mid-range permitted by the legislature.
The Constitutional mandate of due process requires a neutral and detached judicial officer who will consider the full range of punishment and mitigating evidence. See McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983); cf. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). "In the absence of a clear showing to the contrary," we presume that the trial court was neutral and detached. Earley v. State, 855 S.W.2d 260, 262 (Tex. App.-Corpus Christi 1993, no pet.).
In Earley, and the cases relied upon by the Earley court, the trial judges had clearly evidenced their decisions on sentencing at the outset of the hearings in question. See, e.g., Earley, 855 S.W.2d at 262-63 ( ); Howard v. State, 830 S.W.2d 785, 787 (Tex. App.-San Antonio 1992, pet. ref'd) (...
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