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Click here for the full text of this decision FACTS:Appellant was charged by indictment with aggravated sexual assault. Pursuant to an open plea agreement, appellant elected to have punishment assessed by the trial court. After hearing extensive evidence of repeated sexual assaults of appellant’s twelve-year-old daughter, which began when she was five years old, and the repeated sexual assaults of one of her friends, who was 12 and 13 at the time, the trial court sentenced appellant to life imprisonment in the Texas Department of Criminal Justice, Correctional Institutions Division. On appeal to the Amarillo Court of Appeals, appellant argued for the first time that “[t]he trial court violated appellant’s due process rights under the Fourteenth Amendment to the U.S. Constitution, and committed fundamental error, by failing to function as an impartial tribunal for sentencing purposes.” Appellant raised the same issue under Article 1 �19 of the Texas Constitution. Appellant’s contentions are based on the trial court’s comments just before sentencing appellant: “Mr. Brumit, I will explain to you what I am doing and why I am doing it, because I will never understand what you did or why you did it. You are a predator, the worst kind of predator. The reason being is that we have to teach our children today to be careful about people that they come into contact with for fear that something like this may happen to them. When it happens to a child, your own child, in your own home, it is just unforgivable. There is no way that anybody can justify understanding what you did or why. “I think it was in 1977 or ’76, I was involved in the prosecution of a little six-year-old black child that was kidnapped in the front of his apartment complex and was killed after he had been sexually assaulted. That case made me think that anybody that ever harmed a child should be put to death. “When your ex-wife made the comments that she made yesterday, I fully understood, because I don’t think there is anybody, any parent anywhere that can have any sympathy whatsoever for what you did, and to make your own daughter contemplate suicide at the age of 12 because she felt that your family had disowned her as if she had done something wrong. Your punishment is going to deter you, and hopefully it will deter anybody else that might contemplate doing what you did. I have no reason to understand why the jury did what they did in Collin County. We had a case two weeks ago where seven or eight people on the panel wanted to give somebody 20 years for just touching their [step] daughter. “For that reason, I am going to sentence you to life in the penitentiary, and hopefully, somebody out there will understand this is wrong. The court of appeals refused to address the merits of appellant’s complaints, holding that appellant had waived them for failure to present them to the trial court, either at the time of sentencing or in his motion for new trial. Here, and in the court of appeals, appellant concedes that he did not raise these claims before the trial court. Nevertheless, he argues that, under the Court of Criminal Appeals 2000 plurality opinion in Blue v. State, 41 S.W.3d 129, the CCA should reach the merits of his complaints and, similarly, the court of appeals erred in failing to do so. HOLDING:Affirmed After recounting the testimony at the sentencing hearing, the state called both victims, both victims’ mothers and one victim’s father. A Collin County sheriff’s deputy, who took appellant’s confession, also testified. Appellant called his sister to testify in his behalf. Appellant did not testify. The court of appeals declined to reach the merits of appellant’s complaint, because appellant failed to object in the trial court. Appellant relies on holdings from the United States Supreme Court and Texas courts in arguing that the comments by the trial judge here constitute fundamental error, relieving appellant of the requirement to object below. However, when deciding whether a Texas appellate court may address unassigned error, the applicable test is set forth in Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), which identified three kinds of rules: “(1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request.” The court states that it need not decide whether an objection below is required to preserve an error of this nature on appeal, because the record here does not reflect partiality of the trial court or that a predetermined sentence was imposed. Due process requires a neutral and detached hearing body or officer. Absent a clear showing of bias, a trial court’s actions will be presumed to have been correct. Thompson v. State, 641 S.W.2d 920, 921 (Tex. Crim. App. 1982). The comments of the trial court here do not reflect bias, partiality, or that the trial judge did not consider the full range of punishment. Furthermore, the comments are clearly distinguishable from those cases where appellate courts have found either partiality of the trial judge or that the trial judge imposed a predetermined sentence. In Jefferson v. State, the court of appeals reversed the sentence of the trial court, where the trial court told the defendant upon deferring his sentence that, if he violated his probation, the maximum sentence would be imposed. 803 S.W.2d 470, 471 (Tex. App. Dallas 1991, pet. ref’d). Subsequently, the state filed a motion to adjudicate for failure to pay fees and failure to report. The trial court noted his previous warning and refreshed Jefferson’s memory about the court’s promise to give him the maximum sentence if he violated his probation. The court of appeals reasoned that Jefferson was denied due process of law, because the trial court’s action effectively excluded evidence relevant to punishment, it precluded consideration of the full range of punishment prescribed by law, and it deprived Jefferson of a fair and impartial tribunal at the punishment hearing. In Earley v. State, 855 S.W.2d 260, 262 (Tex. App. – Corpus Christi 1993, pet. dis’d), the trial court warned Earley that the maximum punishment may be later imposed if he violated the terms of his probation. According to the court of appeals, this fact, standing alone, was insufficient to conclude that the trial court had imposed a predetermined sentence. Upon sentencing, however, the trial court lamented that it was unable to impose a greater punishment. The court of appeals concluded that this comment, in combination with the trial court’s previous comments, showed that the trial court had “effectively decided the cases before listening to the evidence.” There are several key distinctions between the present case and Jefferson and Earley. First, the comments in those cases indicate bias and that the trial judge had not considered a lower sentence within the range of punishment. Second, in both cases, it was evident that the trial court did not consider any evidence when imposing its sentence. Here, the trial court heard extensive evidence of repeated sexual abuse of two children. The trial court listened to testimony about the effects of the abuse on the victims and their families, and according to his comments, the trial court was particularly impacted by M.M.B.’s thoughts of suicide. The trial court was aware also that this was appellant’s seventh conviction for child sexual assault. It was only after hearing all of this evidence that the trial court made his statement. And, there is explicit evidence from the hearing on the plea that the trial court considered the full range of punishment in assessing the sentence. The court concludes that the trial court did not err affirms the judgments below. OPINION:Holcomb, J.; Keller, P.J., Meyers, Price, Johnson, Keasler, Hervey and Cochran, J.J. Womack, J., concurred in the judgment.

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