Rashad Chisholm v. State ( 2019 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
RASHAD CHISHOLM, §
No. 08-17-00258-CR
Appellant, §
Appeal from the
v. §
120th District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC# 20120D02440)
§
OPINION
Appellant Rashad Chisholm was sentenced to twenty years’ confinement for engaging in
organized criminal activity. In a single issue, Chisholm argues the court showed improper bias
toward him by accusing him of attempting to manipulate the docket when he requested to hire new
counsel just prior to a hearing. We affirm.
BACKGROUND
Appellant Rashad Chisholm was indicted for two counts of engaging in organized criminal
activity. The counts alleged he had, as a member of the “Bloods” street gang, committed the
offenses of assault and aggravated assault with a deadly weapon. Approximately a year after
these indictments, Chisholm was arrested for a new aggravated-robbery offense. When given the
option to have counsel appointed, Chisholm chose to hire counsel to represent him instead. His
attorney, Miguel Cervantes, negotiated a plea with the State to both counts of engaging in
organized criminal activity, and Chisholm was given ten years deferred-adjudication probation.
A few months later, the State filed a motion to adjudicate in which it alleged Chisholm had
violated several of the terms and conditions of his deferred-adjudication probation. Chisholm
again hired Cervantes to represent him. The trial court dismissed the State’s motion to adjudicate,
deciding instead to modify the terms and conditions of his probation to require him to participate
in a treatment program at the West Texas Behavioral Health Residential Center.
A little over a year passed without incident. But on December 15, 2016, Chisholm’s
probation officer notified the trial court that Chisholm had again been arrested for engaging in
organized criminal activity. The trial court issued a bench warrant for Chisholm for violating his
probation and he was arrested the same day. This time, instead of hiring counsel, Chisholm
asserted he lacked the assets to pay for an attorney and requested appointed counsel, which was
granted. Attorney Charles Roberts was appointed to represent Chisholm.
The State filed a motion to adjudicate guilt, alleging Chisholm had violated his deferred-
adjudication probation in two ways: (1) by engaging in organized criminal activity, and (2) by
violating his court-imposed curfew. While this motion was pending, Roberts moved to withdraw
as counsel, asserting Chisholm had expressed dissatisfaction with his performance and approach
to the case. The trial court granted the motion and appointed attorney Cesar Lozano to replace
Roberts. Lozano filed a motion to reduce Chisholm’s bond, asserting he had attempted to raise
funds for the bond through friends and family but had been unsuccessful.
Trial for his offense of engaging in organized criminal activity was set to begin October 2,
2017 at 8:30 a.m. That morning, Lozano told the court that Chisholm was going to accept a plea
2
agreement with the State and that they were in the process of finalizing the details. With that
understanding, the trial court sat a jury for a different case and set the contested revocation hearing
with Chisholm for that afternoon.
But just prior to the hearing that afternoon, Lozano filed a motion to withdraw as counsel,
asserting Chisholm wanted to retain a new attorney to represent him. When the trial court called
the case that afternoon and asked for announcements from counsel, Lozano announced he was not
ready to proceed and notified the court of his motion to withdraw. He explained that he had been
discussing the issues with his client that morning and after the discussion Chisholm informed him
he wanted to retain a different lawyer. Lozano stated Chisholm made a phone call in his presence
to another lawyer and received a price quote from him.
The court asked Lozano if he had been appointed as counsel, and Lozano confirmed that
he had been, elaborating that Chisholm had contacted his grandmother who had agreed to help him
pay for a new attorney. The trial court expressed its frustration with this turn of events, and its
belief that Chisholm was attempting to manipulate the system through his sudden request for new
counsel:
[THE COURT]: But as we are here today -- and I'll note for the record that Mr.
Chisholm's case was set at 8:30 this morning. In fact, the case that was set is
20160D05852. He has a pre-trial case, and it is a matter -- it's a charge of engaging
in organized criminal activity. That case was set for trial today, and it was number
one, along with the codefendants in this case. The codefendants were dismissed,
and my understanding was that Mr. Chisholm was going to take a plea.
You were here and you told me that you were working on it, that it was
going to take a little bit of time. I don't know what all transpired between the State
and defense counsel, but I know that we proceeded to seat a jury in the number two
case with the understanding that Mr. Chisholm was going to take a plea.
Obviously, Mr. Lozano, I can't put this on you, and you have filed a motion
to withdraw so I have to believe that at least part of that conversation is that you
3
represented to the State of Texas that you'd reached an agreement in this case and
then, after the full day, have to be here on a contested revocation, which was set.
And that was my intent, that these matters need to be resolved one way or the other.
I didn't call the pre-trial case because I intend to proceed on a revocation.
Mr. Chisholm, I have to tell you that you are manipulating the process. You
are a probationer twice out of this court. You've had two cases out of this court,
have had matters proceeding. You know the way the process works. You know
you were set for trial. Even though you have a right to decide whether or not you
want to proceed to a jury trial on your pre-trial matters, you gave enough
representation to Mr. Lozano so that he could represent to the State of Texas that
there was an agreement.
I had 125 jurors called for a jury trial today, and today was your day. If
you didn't want to take the State's offer, we could have proceeded to seat a jury in
your case, and based on your representation to counsel and with the State, that panel
was used for another trial. This process of wanting to get a new lawyer when you
were qualified for counsel, now, apparently, you intend to hire counsel. That just
shows the manipulation of the Court's docket but perhaps maybe a lack of
truthfulness with regard to your ability to pay for counsel, because you have had
appointed counsel throughout these proceedings, which has been at least since -- I
don't know. Mr. Lozano -- oh, it must have been June of this year because you had
Mr. Roberts represent you up until June 7th of 2017 when I granted Mr. Roberts'
request to withdraw. Prior to that, there had been a motion to continue.
So this case has gone on fairly long and we are ready to proceed to a jury
trial, whatever the disposition might have been, but I'm not -- I'm not inclined to
grant that motion, Mr. Lozano. We have a revocation proceeding. It's a
proceeding to me. Mr. Chisholm has represented that he couldn't hire counsel and
now, after all day, that's what he's going to do. I mean, I don't think that's -- I think
it certainly starts to look like a misuse of County resources if you're appointed to
represent him because he doesn't have the resources and he's qualified for appointed
counsel but now, after manipulating the docket, 125 jurors later, now, all of a
sudden, he wants to pay for someone else to come in. I'm more than a little
bothered by that. Is he paying probation fees? Is he paying -- none of those
things, but now he wants to hire a lawyer.
. . .
[THE COURT]: In addition to having everyone wait for this revocation hearing,
which was already set, Mr. Chisholm, you're not going to be able to hire anyone
who's going to come in and get ready for these cases right away. I don't know who
it is that you talked to, but I'm certain that whoever you talked to is counting on
having enough time to prepare, and that is not what is going to happen here. So
4
until such time that you hire someone who's prepared to proceed on a setting which,
at best, would be in a week --
You know, I'm not prepared to grant it, Mr. Lozano. And I hate to put you
in a difficult situation but there is -- you know the case. You know Mr. Chisholm.
We have a revocation set. I think you're it. I mean, what is it that you would have
had to prepare on a revocation? You've been counsel for at least four months.
And I'm not asking you to proceed on the pre-trial case. You have the right to a
jury trial there, and that's for another day. But what is proceeding at this moment
with you as counsel -- because I don't intend on having someone else come in, and
you know they're going to ask for six months, minimally. I'm not going to do that.
These cases need to be resolved and Mr. Chisholm has been on probation out of
this court for at least three years. There's nothing to prevent me from proceeding
on the revocation and that's what I intend to do.
Lozano explained that negotiations with the State the week before had gone well, and he
believed a plea agreement had been reached on the most recent engaging-in-organized-criminal-
activity case. But over the weekend he had received a text message from Chisholm indicating
that he did not think the plea was the right decision and that Lozano was not serving his best
interests. Lozano stated he believed there had been some misunderstanding and he would be able
to explain the situation to Chisholm that morning, but his attempts were unsuccessful. He also
noted that he was not comfortable proceeding because he had not gathered the necessary
punishment witnesses and now did not have the time to do so. The trial court proposed moving
forward with the violation portion of the revocation hearing and postponing the punishment portion
to give Lozano time to gather the necessary punishment witnesses. Lozano stated he was still
uncomfortable proceeding because of Chisholm’s desire to not have Lozano represent him, and
the court noted its belief that the alleged conflict with Lozano’s representation was an attempt by
Chisholm to manipulate the system. It then stated:
[The Court]: But, Mr. Chisholm, I can't allow you to continue to manipulate the
process. You've made representations. You've had the full advice of counsel and
we have two matters that can be disposed and I have witnesses that have been
5
waiting all day pursuant to your decisions. There's no one else here that is calling
the shots except you. This was your decision. And having decided to not take the
plea, then we need to proceed with the revocation.
The court then denied Lozano’s motion to withdraw as counsel and proceeded with the
revocation hearing.
The State abandoned one of its allegations and proceeded only on the alleged curfew
violation. Chisholm pleaded “not true” to that violation. After the State presented evidence,
Chisholm changed his plea to “true,” and the trial court recessed to resume the punishment portion
of the hearing at a later date.
At the subsequent punishment hearing, the State presented evidence of Chisholm’s
aggravated-robbery case, his probation violations, and his continued association with the Bloods
street gang. Chisholm presented the testimony of relatives, family friends, sports coaches, and
others who testified to his good character, that he had merely fallen in with the wrong crowd, and
that they would mentor him if he were allowed to continue on probation. Chisholm also presented
letters and emails of support from others who identified him as a good person and who promised
to support him if he were given the chance to continue probation.
Chisholm argued he should be allowed to stay on probation because (1) the State had only
proven a curfew violation, (2) he had essentially completed all requirements of his probation
except for paying fines and fees, and (3) the testimony of his witnesses showed his capacity for
completing probation and becoming a productive member of society. The State, in turn, pointed
out that Chisholm had violated probation multiple times, that he continued to unapologetically
affiliate with the Bloods, and that there was no evidence presented that he actually intended to
change his life. The State asked the court to sentence him to twenty years’ confinement.
6
In pronouncing punishment, the court noted it was aware that Chisholm came from a good
family and the adults in his life were willing to help him. The court also noted that Chisholm had
been nothing but courteous and respectful in all proceedings before the court and in his interactions
with staff, and that he never behaved like a person who would disregard court orders due to a gang
mentality. But the court stated it could not reconcile this image with Chisholm’s documented
behavior outside the court’s presence. The court stated it must therefore conclude that neither the
adults in his life nor the court itself had any significant influence on his behavior and expressed its
belief that he would not change his life. The court then revoked his probation and sentenced him
to twenty years’ confinement. This appeal followed.
DISCUSSION
In his sole issue on appeal, Chisholm argues the court showed deep-seated antagonism
toward him by accusing him of attempting to manipulate the docket when he requested to hire new
counsel after assuring the court that morning he would be accepting a plea deal. He asserts that
because of this antagonism toward him, the court was unable to be fair and impartial during his
hearing.
Applicable Law
Due process guarantees a criminal defendant the right to a hearing before a neutral and
detached judge who will consider the full range of punishment and mitigating evidence. Gagnon
v. Scarpelli, 411 U.S. 778, 781–82 (1973); Brumit v. State, 206 S.W.3d 639, 645 (Tex.Crim.App.
2006). A judge violates due process by arbitrarily refusing to consider the entire range of
punishment or mitigating evidence in a particular case and, instead, imposing a predetermined
punishment. Ex parte Brown, 158 S.W.3d 449, 456 (Tex.Crim.App. 2005). We begin with a
7
presumption that the judge was neutral and detached. Brumit, 206 S.W.3d at 645. The burden
is on the defendant to make a “clear showing” of improper bias. Id.
Expressions of impatience, dissatisfaction, annoyance, and even anger with a defendant or
defendant’s counsel do not establish bias. Liteky v. United States, 510 U.S. 540, 555–56 (1994);
Gaal v. State, 332 S.W.3d 448, 455 (Tex.Crim.App. 2011). Accordingly, ordinary efforts at
courtroom administration by a trial court will not demonstrate bias. Gaal, 332 S.W.3d at 454.
While critical, disapproving, or hostile remarks to counsel or a party will not usually support a bias
challenge, they may do so if they reveal an opinion based on extra-judicial information. Id.
Judicial remarks do support a clear showing of bias, however, when they display “such a high
degree of favoritism or antagonism as to make fair judgment impossible.” Id., (quoting Liteky,
510 U.S. at 555). Bias is also demonstrated where a trial judge arbitrarily, without any evidence
before him, refuses to consider a portion of the range of punishment. Id. Judicial rulings alone,
however, will almost never constitute a valid basis for a finding of improper bias. Liteky, 510
U.S. at 555.
Analysis
Here, Chisholm argues the court’s remarks that he was attempting to manipulate the docket
displayed a deep-seated antagonism toward him that rendered fair judgment impossible. While
Chisholm acknowledges the comments of the court are insufficient, standing alone, to show bias,
he argues that the court’s negative opinion of his actions was acquired extra-judicially. He asserts
when this alleged extra-judicial opinion is combined with the comments of the trial court, there is
a clear showing of deep-seated antagonism.
8
But Chisholm does not point to any evidence to demonstrate the trial court’s opinion was
acquired extra-judicially. He instead asserts the court’s belief that he was attempting to
manipulate the process must have been based on extra-judicial knowledge because there was
nothing in the record to support such an accusation. Contrary to this assertion, however, the
record shows that the court’s opinion regarding his motivations were based entirely upon the
events transpiring in the judicial proceedings in his case. Chisholm’s request for appointed
counsel, the withdrawal of initial counsel, and the appointment of Lozano were matters of record
before the court. The morning of his hearing date, Chisholm was set for trial for the underlying
offense of engaging in organized criminal activity. Attorney Lozano told the court Chisholm
would be taking a plea and, based on that representation, the court informed Chisholm that his
hearing on the State’s motion to adjudicate would be set for that afternoon. Neither Chisholm nor
Lozano indicated at that time they would not be ready because Chisholm wanted to retain a new
attorney or that he was disinclined to accept the State’s plea offer. That afternoon, Lozano
announced “not ready” and stated he had moved to withdraw as counsel because Chisholm now
wanted to hire another attorney, allegedly because of disagreements between he and his client and
because Chisholm’s grandmother had agreed at the last minute to provide funds for a new attorney.
It was at this point that the court expressed its displeasure with the effect the earlier
misrepresentations would have on the docket and its belief that Chisholm’s request was made with
the intent to manipulate the process. Regardless of Chisholm’s true intent, the court’s accusation
of manipulation was wholly based on the judicial proceedings before it, and Chisholm has pointed
to nothing to show that they were derived extra-judicially.
9
Because there is no evidence of extra-judicial considerations by the court, Chisholm’s
claim of judicial bias rests solely upon the admonishments of the court during the adjudication
hearing. As Chisholm himself recognizes, the court’s remarks, standing alone, do not rise to the
level of showing “deep-seated antagonism” that would render fair judgment impossible. Liteky,
510 U.S. at 555–56 (expressions of impatience, dissatisfaction, annoyance, and even anger with a
defendant do not establish bias); Gaal, 332 S.W.3d at 455 (ordinary efforts at courtroom
administration by a trial court do not demonstrate bias). The trial court here merely expressed its
belief that Chisholm’s desire to change counsel was motivated by a desire to manipulate the docket
and admonished him in accordance with that belief. At no point did the trial court state it would,
as a result of his alleged manipulation, no longer consider the full range of punishment or sentence
him to a predetermined punishment regardless of the evidence presented. See Brown, 158 S.W.3d
at 456 (arbitrary refusal to consider full range of punishment or mitigating evidence and imposing
predetermined punishment violates due process). Instead, the court specifically acknowledged
the mitigating evidence in its pronouncement of punishment, noting its belief that Chisholm came
from a good family, that the adults in his life were willing to help him, and that he had been nothing
but courteous and respectful in all proceedings before the court. The court explained it could not
reconcile this positive image with Chisholm’s continued behavior outside the court’s presence and
concluded neither the court nor the adults in his life seemed to have the ability to convince him to
reform his behavior. Only then did it sentence him to twenty years’ confinement, a sentence well
within the punishment range for a first-degree felony offense of engaging in organized criminal
activity. See TEX.PENAL CODE ANN. § 71.02. Accordingly, Chisholm has failed to make a “clear
showing” of improper bias. Brumit, 206 S.W.3d at 645. His issue is therefore overruled.
10
The trial court certified Appellant’s right to appeal in this case, but the certification does
not bear Appellant’s signature indicating that he was informed of his rights to appeal and to file a
pro se petition for discretionary review with the Texas Court of Criminal Appeals. See
TEX.R.APP.P. 25.2. The certification is defective, and has not been corrected by the Appellant’s
attorney, or the trial court. To remedy this defect, this Court ORDERS Appellant’s attorney,
pursuant to TEX.R.APP.P. 48.4, to send Appellant a copy of this opinion and this Court’s judgment,
to notify Appellant of his right to file a pro se petition for discretionary review, and to inform
Appellant of the applicable deadlines. See TEX.R.APP.P. 48.4, 68. Appellant’s attorney is
further ORDERED, to comply with all of the requirements of TEX.R.APP.P. 48.4.
CONCLUSION
Having overruled Appellant’s only issue, the judgment of the trial court is affirmed.
July 10,2019
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
11