Demarcus Ray Hancock v. State ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00228-CR
______________________________
DAMARCUS RAY HANCOCK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 114th Judicial District Court
Smith County, Texas
Trial Court No. 114-1678-07
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Having been charged with the offense of sexual assault in Smith County, Texas, Damarcus
Ray Hancock entered a plea of guilty and was placed on deferred adjudication community
supervision by order entered February 13, 2008. See TEX. PENAL CODE ANN. § 22.011 (Vernon
Supp. 2009). Following the filing of a motion to adjudicate citing multiple violations of the terms
of community supervision, Hancock was adjudicated guilty and sentenced to fifteen years’
imprisonment by order of final adjudication entered October 14, 2009. Hancock appeals the
adjudication of his guilt, contending that he was denied due process because the trial court abused
its discretion by refusing to consider the full range of punishment.1
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 Gagnon v. Scarpelli,
411 U.S. 778, 786–87 (1973). A trial court denies due process when it arbitrarily refuses to
consider the entire range of punishment for an offense or refuses to consider mitigating evidence
and imposes a predetermined punishment. Ex parte Brown, 158 S.W.3d 449, 454 (Tex. Crim.
App. 2005). In the absence of a clear showing to the contrary, we presume that the trial court was
neutral and detached. Fielding v. State, 719 S.W.2d 361, 366 (Tex. App.—Dallas 1986, pet.
ref’d) (citing Thompson v. State, 641 S.W.2d 920, 921 (Tex. Crim. App. 1982)).
1
Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
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Hancock contends the record shows that the court refused to consider the full range of
punishment and thus violated his due process rights because ―[u]pon hearing the state’s
recommendation, the trial court immediately agreed.‖ Hancock asserts this shows an arbitrary
refusal of the trial court to consider the entire range of punishment.
A court denies due process and due course of law if it arbitrarily refuses to consider the
entire range of punishment for an offense or refuses to consider the evidence and imposes a
predetermined punishment. Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002); Johnson
v. State, 982 S.W.2d 403, 405 (Tex. Crim. App. 1998). However, such a complaint is not
preserved for error unless a timely objection is raised. Teixeira v. State, 89 S.W.3d 190, 192 (Tex.
App.—Texarkana 2002, pet. ref’d); Washington v. State, 71 S.W.3d 498, 499 (Tex. App.—Tyler
2002, no pet.); Cole v. State, 757 S.W.2d 864, 866 (Tex. App.—Texarkana 1988, pet. ref’d). No
objection was made to the court’s ruling; thus, the complaint was not preserved.
Even if we could properly reach this issue, the record does not show that the trial court did
not consider the entire range of punishment. What the record does reflect is that the court listened
to evidence that Hancock: (1) failed to register as a sex offender; (2) moved his residence, but
failed to notify his community supervision officer prior to the move; (3) failed to report in person
to his community supervision person within forty-eight hours after any arrest; (4) failed to pay
community supervision fees for several months; (5) failed to pay court costs; (6) failed to pay
restitution; (7) failed to pay a fee to the Smith County Community Supervision and Corrections
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Department in the amount of $15.00 for the cost of the substance abuse questionnaire; (8) failed to
pay a fee to that same department in the amount of $50.00 for the Crimestoppers program;
(9) failed to pay a fee of $100.00 for preparation of the presentence investigation (PSI) report;
(10) failed to write an ―unequivocal letter of apology‖ to the victim on or before February 27,
2008; (11) failed to send reports to the Smith County Community Supervision and Corrections
Office; (12) failed to report to his community supervision officer sixty-three times between June 2,
2008 and August 24, 2009; (13) failed to pay a supervision fee of $5.00 per month for several
months for remittance to the state comptroller on conviction of a sex offense; and (14) failed to
attend and participate fully in and successfully complete psychological counseling and treatment
sessions for sex offenders. Hancock pled ―true‖ to all the allegations contained in the motion to
adjudicate. The court also considered the fact that Hancock admitted having a juvenile record
based on his participation in a riot, and reviewed Hancock’s PSI report.
After the trial court first heard the State’s recommendation of fifteen years, defense
counsel then presented his closing argument to the court. The court then heard the entirety of that
closing argument, and the State’s rebuttal, where the State again reiterated that it believed fifteen
years was an appropriate sentence, before the court stated, ―The Court now, based on the plea and
the evidence, assesses punishment at 15 years confinement in the Institutional Division.‖
We conclude the record does not show that the trial court failed to consider the entire range
of punishment. We overrule the contention of error.
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We affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: July 19, 2010
Date Decided: July 20, 2010
Do Not Publish
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