Opinion
NO. 02-17-00144-CR
04-26-2018
BOBBI LYNN BEAN APPELLANT v. THE STATE OF TEXAS STATE
FROM COUNTY COURT AT LAW NO. 1 OF WISE COUNTY
TRIAL COURT NO. CR-74978 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Bobbi Lynn Bean appeals her conviction for driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04 (West Supp. 2017). We affirm.
Background
Around 10:00 p.m. on March 17, 2016, Douglas Scheets was sitting in his living room when he heard a loud crash outside. When he stepped outside to investigate, he discovered Appellant sitting in her SUV in a roadside ditch. Scheets observed that the car had sustained substantial damage—he testified that it appeared to have struck a large oak tree on his property hard enough to take "a pretty good chunk of bark off of it" and then had traveled between 70 and 90 yards, where it came to rest in the ditch. The car had also knocked over Scheets' mailbox. Scheets testified, "[T]his left front tire was broken loose and swung around to the - - 90 degrees to the other one, and it was kind of like a plow going down the road. It was a definite plowing action as it came up to a rest." The car was inoperable, and despite her repeated attempts, Appellant could not drive it out of the ditch.
According to Scheets, at the scene Appellant repeatedly stated that she just wanted to go home—her house was nearby, on the same road as Scheets' home. And while she willingly gave Scheets her keys to the vehicle when he requested them, Appellant became "excited" when he refused to return them to her and when he then called 911. But despite her aggravation with Scheets for refusing to give her the keys, Appellant reached into her purse and pulled out a second set of keys, started the car, and again attempted to move the vehicle. Scheets testified that he was able to distract her and take the second set of keys away from her, and that when he told her the police were on their way, she responded, "You're not supposed to do that."
Officer Rex Richie of the Boyd Police Department responded first to the call. Like Scheets, he recounted for the court the extensive damage he observed—the damaged oak tree, the upended mailbox, and the vehicle, which he described as having "extensive damage to the front . . . on the driver's side from the result of striking the tree." He also observed Appellant and described her as having had "glassy, blood shot eyes, [and] slurred speech. It was obvious that she was, you know, under the influence of something." He testified that he also observed Appellant's "argumentative" behavior toward Scheets as she attempted to reclaim her keys. According to Officer Richie, Appellant "sw[u]ng[] at him a couple of times through the window," although Officer Richie noted that she had no chance to actually strike Scheets because of the distance between them. At that point, Officer Richie asked Scheets for the keys and directed him to return to his porch.
A recording taken by Officer Richie's body camera was admitted into evidence, and it depicted what followed the altercation between Appellant and Scheets. Despite the fact that her airbag had deployed upon impact, on the recording, Appellant asked Officer Richie if her car had dents, and she argued with him when he told her that the car was not drivable. And when he informed her that she probably would not be going home, she yelled, "I could walk home if I want! . . . Yeah, by God I can!"
The video shows that when Officer Richie first asked Appellant how much she had had to drink that night, she responded, "Not enough." Appellant continued to insist that she wanted to go home, and when Officer Richie again told her she would not be going home, she became belligerent and yelled at him. Later, she began to loudly cry. When Officer Richie again asked her how much she had had to drink, she refused to answer and hurled profanities at him. She continued wailing and yelled, "You're so wrong!" and "Let me go home!" and "F*** you!" Later in the recording, Appellant can be heard stating that she was coming home from a honky tonk, where she had had two or three "big beers."
When Appellant exited the vehicle at Officer Richie's request, she resisted his initial efforts to handcuff her. According to Officer Richie, at first "she almost fell down [and he] observed her to sway." After that, she failed to comply with his directions and "forcibly jerked away," at which point he handcuffed her and escorted her to his patrol vehicle.
Because the accident was located outside of the city of Boyd, state troopers soon arrived to investigate. Trooper Jeff Johnson testified at the trial that when he arrived, he immediately noticed "a pretty big chunk" missing from the tree and "extensive damage" to the left front tire of Appellant's vehicle, which he described as "tor[n] off the vehicle." Officer Richie debriefed Trooper Johnson and informed him of Appellant's uncooperative behavior, but according to Trooper Johnson, Appellant was "somewhat cooperative" by the time he arrived and began to speak to her. Despite Appellant's improved demeanor, Trooper Johnson confirmed that she appeared "disorderly" and emanated "quite a strong smell of alcohol."
Trooper Johnson administered a horizontal-gaze-nystagmus test and identified all six clues of intoxication, but he elected not to conduct any further field sobriety tests due to Officer Richie's report of her uncooperative behavior and his own concerns about safety. At that point, Trooper Johnson placed Appellant under arrest. With her consent, Trooper Johnson obtained samples of her blood, and subsequent testing revealed a blood alcohol content of 0.234 grams of alcohol per 100 milliliters of blood.
The legal limit is 0.08. See Tex. Penal Code Ann. § 49.01(2)(B) (West 2011).
Appellant was charged with DWI, applied for community supervision, pleaded guilty, and elected to be sentenced by the trial court. At the punishment hearing, Appellant testified that she felt "ashamed" watching footage of the arrest. She acknowledged that she had turned to alcohol after struggling with the deaths of her husband and best friend in recent years. She also testified that she had previously been convicted of DWI in Tarrant County in 2015 and had received community supervision in that case as well.
In closing argument, the State proposed that if the trial court granted community supervision, it should sentence Appellant to the maximum sentence of 365 days, and if the trial court did not impose supervision, it should sentence her to 90 days in jail. Appellant's counsel argued, as he does on appeal, that the State's approach was inappropriate and that in determining the appropriate sentence, the trial court's focus should be on the "appropriate punishment if the [defendant was] not given probation."
The trial court sentenced Appellant to 365 days' confinement but suspended the sentence for two years' community supervision. In sentencing Appellant, the trial court stated,
But in this county - - and I understood all the - - you know, the reasoning about the sentence and everything. In this county . . . in other words I'm going to impose a 365 day sentence suspended for two years for 24 months, however, here's how it works. In this county - - I mean, I can't make promises or anything but in this county I - - in my experience, and this is just my opinion, I like to hold this - - have that available, the entire range available, and there's people that - - now I hate to talk about looking forward to violating the probation. Hopefully you're not going to violate it. I hope we don't have to worry about it. That's what I prefer, yes. But there are violations and there are violations. In this county I think we have a really good track record when people mess - - I mean, obviously, something as serious or more serious or worse or whatever offense, like a new offense like what we call a really big violation and that - - that's why I want to have the 365 available. On the other hand, lesser things, whatever, I mean even at the plea bargain level the State routinely, I mean, offers and people accept stuff that's 30 days, 60 days, whatever, if it's something that's less involved for some reason like they did most of their probation right and it's not even a new offense but they're just like I'm not doing my community service hours or they just - - there is stuff that they're not doing but it's not just really horrendously serious. I mean, all violations are serious obviously. But there are - - there are lesser things that on a routine basis we use the whole range and sometimes don't even come close to the maximum or anything. Just because it's there doesn't mean, even in the event of a violation, that that's what's going to happen because the Court and everybody takes into consideration stuff as to maybe we shouldn't do the whole thing. We should do lesser. I mean, and we just - - I like to have that available.
The trial court ordered Appellant to pay a $500 fine and to complete 80 hours of community service. He noted that the fine and the community-service requirement were below the maximum allowed for a second DWI conviction.
Discussion
I. Sentencing and community supervision
In her first issue, Appellant argues that the trial court improperly tied the length of the sentence imposed to the fact that he was going to grant her request for community supervision. In other words, Appellant posits that the trial court would have imposed a shorter sentence if it had chosen to deny her request for community supervision and that any such consideration was improper.
Appellant's argument is based on the distinction between a defendant's sentence and the suspension of the same to allow a defendant to complete community supervision. As the court of criminal appeals has explained, the two are entirely separate parts of a judgment. Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1088 (2000). The sentence is that part of the judgment that orders the punishment be carried into execution in the manner prescribed by law. Tex. Code Crim. Proc. Ann. art. 42.02 (West 2006). When community supervision is permitted by the court in situations such as these, the sentence is suspended while the defendant completes the terms of community supervision. Speth, 6 S.W.3d at 532; see also Tex. Code Crim. Proc. Ann. art. 42A.001(1)(B) (West Supp. 2017) (defining community supervision). Thus, "imposition of a sentence is profoundly different from the granting of community supervision." Speth, 6 S.W.3d at 532.
This is different than a deferred-adjudication proceeding, in which adjudication and, therefore, punishment are deferred until such time as community supervision is revoked. See Tex. Code Crim. Proc. Ann. art. 42A.001(1)(A) (defining community supervision in a deferred-adjudication proceeding); Weed v. State, 891 S.W.2d 22, 24-25 (Tex. App.—Fort Worth 1995, no pet.) (distinguishing the imposition of community supervision in the context of a deferred-adjudication proceeding).
For this reason, if community supervision is revoked, the trial court may not lengthen the sentence it originally imposed—it may only shorten the sentence. Tex. Code Crim. Proc. Ann. art. 42A.755(a) (West Supp. 2017) (providing that, if community supervision is revoked, the judge may "proceed to dispose of the case as if there had been no community supervision" and allowing the judge to reduce the term of confinement originally assessed); see also Weed, 891 S.W.2d at 24 (interpreting predecessor statute). Texas is not unique in this statutory structure—indeed, federal law has long precluded federal trial courts, upon revoking probation, from increasing the defendant's original sentence. See Roberts v. United States, 320 U.S. 264, 272-73, 64 S. Ct. 113, 117-18 (1943).
In addition, Appellant points out that speculation of a future violation of the community supervision terms in determining a defendant's sentence may present troublesome concerns of double jeopardy. We share her concern in this respect. See Johnson v. United States, 529 U.S. 694, 700, 120 S. Ct. 1795, 1800 (2000) (explaining that "serious constitutional questions . . . would be raised by construing revocation and reimprisonment as punishment for the violation of the conditions of supervised release"). But as Appellant also acknowledges, any such claim is not ripe for our consideration at this time.
Notwithstanding the potential merit in Appellant's arguments, we cannot say that the trial court erred by sentencing Appellant to 365 days' confinement. Trial courts are afforded broad, "essentially unfettered" discretion in determining the appropriate punishment for a defendant. Barrow v. State, 207 S.W.3d 377, 379-81 (Tex. Crim. App. 2006) (internal quotation omitted). With limited exceptions, sentencing determinations are "unassailable on appeal." Id. at 381. We generally will not disturb the trial court's determination of the appropriate punishment as long as the sentence is within the proper range of punishment. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).
The trial court was presented with extensive evidence of Appellant's intoxication and her behavior on the night of her arrest. The accident was not minor—she caused "extensive damage" to her vehicle when she swerved off of the road, took a "pretty good chunk" out of a tree, knocked over a mailbox, and came to rest in a ditch. Her car was rendered inoperable. The trial court also had the benefit of the body-camera recording showing Appellant's belligerent and argumentative behavior toward Officer Richie. And blood-test results admitted into evidence registered her blood alcohol content at three times the legal limit.
Finally, Appellant admitted that, despite having been convicted of DWI before and serving community supervision, she had continued drinking and driving. Because of her prior conviction, the applicable range of sentencing was 30 days to one year of confinement. See Tex. Penal Code Ann. § 12.21 (West 2011) (providing a maximum punishment of one year for a class A misdemeanor), § 49.09(a) (West Supp. 2017) (providing that DWI is a class A misdemeanor, with a minimum of 30 days' confinement, if the defendant has been previously convicted of DWI).
The trial court's sentence of 365 days' confinement was within the applicable range of punishment. Considering this and the facts presented, we do not view the trial court's sentence as an abuse of discretion. We therefore overrule Appellant's first issue.
II. Constitutional challenge to the trial court's "method"
In her second issue, Appellant argues that the trial court's "method" of assessing her sentence violated her due process rights. See U.S. Const. amend. XIV. Appellant takes issue with the trial court's statements that his preference is to "have . . . the entire range [of punishment] available" if community supervision is revoked. Appellant has interpreted the trial court's statements as evidencing a "predisposition to assess a particular sentence when placing a defendant on community supervision" and a "preordained policy" to sentence a defendant to the maximum punishment available based on unfounded speculation that "all defendants on its docket," once convicted, present a high risk of future misconduct while on community supervision.
In so arguing, Appellant analogizes this case to the case of Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005). In Brown, the defendant was charged with robbery and pleaded guilty. Id. at 451. The trial court chose to defer adjudication and placed the defendant on probation for four years. Id. The defendant violated the probation conditions by failing to report to his probation officer and failing to pay applicable fines. Id. After revocation and during the punishment phase, the trial court referred to a "long conversation" it had with defendant when the trial court placed him on probation in which the trial court had told the defendant that if he failed to report to his probation officer, the trial court would sentence him to 20 years' confinement, the maximum punishment. Id. The trial court then sentenced him to 20 years'. Id. The conviction was affirmed on direct appeal. Id. at 452.
In the habeas corpus proceeding, the successor judge and the court of criminal appeals found that the previous judge had, in many cases, promised to sentence defendants to the maximum sentence if they "messed up" on probation and had often followed through on that promise. Id. at 452, 456. The court of criminal appeals held that such a prejudgment of the defendant's punishment violated the defendant's right to due process. Id. at 456. It noted, "[A] trial court's arbitrary refusal to consider the entire range of punishment in a particular case violates due process." Id.
While we agree with Appellant's recitation of applicable law, we disagree with Appellant's interpretation of the trial court's statements here and do not view them as analogous to the trial court's statements in Brown. Although the trial court's statements might suggest prejudgment, they fall short of establishing a "policy" of the court applicable to all similarly-situated defendants. The trial court heard the evidence presented and the parties' closing arguments. It then took an almost hour-and-a-half break for lunch in order to "figure this out." And then, in pronouncing the sentence, the trial court explained its particular concern that Appellant's first DWI conviction had not deterred her from continuing to drink and drive, and the judge also explained that he was not going to require her to pay the maximum fine or serve the maximum number of community-service hours. These statements evidence an effort to tailor the sentence specifically for Appellant rather than to mechanically apply a broad policy of sentencing defendants to the maximum punishment.
Viewing the trial court's statements in the context of the entire record, we do not view the trial court's approach to sentencing as violative of Appellant's right to due process. We therefore overrule Appellant's second issue.
Conclusion
Having overruled Appellant's two issues, we affirm the trial court's judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
CHIEF JUSTICE PANEL: SUDDERTH, C.J.; GABRIEL and PITTMAN, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: April 26, 2018