WASHINGTON v. STATE (2026)

OPINION

Appellant Kevin Washington appeals the revocation of his community supervision and sentence of five years' imprisonment. In a single issue, appellant contends that the trial court violated his due process rights by failing to consider the available range of punishment and instead imposing a predetermined sentence. Concluding that the trial court failed to consider the available range of punishment, we affirm the revocation of appellant's community supervision but reverse the trial court's sentence and remand for assessment of an appropriate sentence after consideration of the available range of punishment.

Background

Appellant was charged in 2019 with possession of a controlled substance (methamphetamine) of an amount of at least one gram but less than four grams. Pursuant to a plea bargain agreement reached in 2021, appellant pleaded guilty, was found guilty and sentenced to five years in prison, and then had his sentence suspended and was placed on community supervision for five years. In July 2025, the State filed a motion to revoke appellant's community supervision, alleging he had violated specified terms of his community supervision, including by (1) committing another criminal offense; (2) ingesting intoxicating substances, including alcohol; (3) failing to obey all rules, regulations, and policies of the county community supervision department; and (4) failing to submit to random or requested drug and alcohol testing.

At the revocation hearing, the State waived the first allegation involving committing a new criminal offense. The State then presented evidence, through documents and a court officer from the county community supervision department, that appellant had “failed to totally abstain from drug use or marijuana” and had admitted to consuming alcohol twice, submitted diluted drug test samples, repeatedly failed to check in to see if he was to be randomly tested for drugs and alcohol, and failed to appear for random drug testing on multiple occasions. On cross-examination, the court officer acknowledged that after appellant completed drug rehabilitation and aftercare services, his only substance violations were for alcohol use.

Appellant and his mother also testified at the hearing. Appellant admitted to many of the alleged violations but asserted that his work schedule, transportation difficulties, and lack of access to a computer or cell phone often made complying with the requirements difficult. Appellant's mother testified that appellant lived with her, she had debilitating health problems, and she could not always provide transportation for him, but she promised she would make sure he got to his probation and drug test appointments in the future.

The court officer recommended that appellant be ordered to attend a Thinking For a Change class, have no contact with a particular person, and receive a six-month extension of his community supervision. The State, however, requested that appellant's community supervision be revoked and he be sentenced to complete his original sentence of imprisonment. The judge found that appellant committed the alleged violations and sentenced him to five years in prison.

Discussion

Appellant specifically complains in this appeal that the trial court violated his right to due process by predetermining his sentence and not considering the available range of potential punishment under the law—two to five years. Due process requires a hearing before a neutral and detached judge who considers the full range of punishment. See, e.g., Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014); Jacobs v. State, 720 S.W.3d 217, 220 (Tex. App.—Eastland 2025, no pet.). A trial court's arbitrary refusal to consider the entire available range of punishment in a revocation hearing constitutes a denial of due process. Grado, 445 S.W.3d at 739; Jacobs, 720 S.W.3d at 220. However, we presume that a trial court considered the full range of punishment absent clear evidence to the contrary. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (“Absent a clear showing of bias, a trial court's actions will be presumed to have been correct.”); Jacobs, 720 S.W.3d at 220–21.

When, as here, there was a previous plea bargain in the case, the plea-bargained sentence creates a cap to the punishment range, but the court must still consider the entire available remaining range of punishment, in this case, two to five years' imprisonment. See, e.g., Edwards v. State, 106 S.W.3d 377, 379 (Tex. App.—Fort Worth 2003, no pet.); see also Tex. Code Crim. Proc. Art. 42A.755(a) (providing that when community supervision is revoked, the trial court has discretion to either dispose of the case as if there had been no community supervision or reduce the term of confinement originally assessed to any term of confinement not less than the minimum prescribed for the offense of which the defendant was convicted); Middleton v. State, 634 S.W.3d 46, 51 (Tex. Crim. App. 2021) (explaining that a defendant on “regular” community supervision—as opposed to deferred adjudication community supervision—is not necessarily exposed to the entire range of punishment upon revocation).

Appellant in this case emphasizes two statements made by the trial judge after the close of evidence in support of the contention that the judge had predetermined his sentence at the maximum and did not consider the entire available range of punishment. Those statements were: “But the thing is when you agreed to a straight probation plea I've already assessed your punishment at five years” and “if you violate, if you go to a contested hearing and I find that there is a violation, it's five years confinement in the Texas Department of Corrections because that's actually the deal that you signed up for back in 2021.”

The first statement on its own is not sufficient to clearly show the trial court failed to consider the available range of punishment. Instead, it could be interpreted as a simple, accurate statement that punishment in the case had already been assessed at five years' confinement. See Wright v. State, 506 S.W.3d 478, 481 (Tex. Crim. App. 2016) (“In the ‘regular’ community supervision context, sentence is assessed when a defendant is placed on probation.”).

The second statement, however, is more concerning. In it, the judge appears to be telling appellant that when the judge finds a violation of the terms of a defendant's community supervision, the judge will give that defendant the sentence that was agreed to in the original plea bargain. This clearly suggests the judge was confining himself to the original agreed-to sentence and not considering the entire available range of punishment as required by due process. See Grado, 445 S.W.3d at 739; Jacobs, 720 S.W.3d at 220; Edwards, 106 S.W.3d at 379.

This case is a little different than typical cases where courts have reversed and remanded post-revocation sentences for a failure to consider the entire range of punishment. Such cases have typically involved situations where (1) the judge told the defendant at the original probation hearing that he would get a certain sentence if he violated the terms of his community supervision and then followed through with that at the revocation, (2) the judge stated at the beginning of the revocation hearing that he was going to give the bargained-for sentence, or (3) the judge assessed punishment without hearing any evidence. See, e.g., Sanchez v. State, 989 S.W.2d 409, 411 (Tex. App.—San Antonio 1999, no pet.); Earley v. State, 855 S.W.2d 260, 262–63 (Tex. App.—Corpus Christi 1993, pet. dism'd); Jefferson v. State, 803 S.W.2d 470, 471–72 (Tex. App.—Dallas 1991, pet. ref'd). Here, the trial judge did not do any of these things. The judge here made his comments after the close of evidence. However, we cannot ignore the fact that the context and nature of the comments clearly indicate that although the judge heard evidence in the case, the judge was always going to give appellant the punishment that had been agreed to in the plea bargain documents because, according to the judge, that was “the deal [appellant] signed up for back in 2021.” See Grado, 445 S.W.3d at 739; Jacobs, 720 S.W.3d at 220; Edwards, 106 S.W.3d at 379; see also Tex. Code Crim. Proc. Art. 42A.755(a).¹

Conclusion

Because the record indicates that the trial court did not consider the available range of punishment and instead imposed a predetermined sentence, we sustain appellant's sole issue. Accordingly, we affirm the revocation of appellant's community supervision but reverse the trial court's sentence and remand for assessment of an appropriate sentence after consideration of the available range of punishment.

FOOTNOTES

1.   We acknowledge the Amarillo Court of Appeals' unpublished opinion, Dominguez v. State, No. 07-24-00106-CR, 2025 WL 609198, at *5–6 (Tex. App.—Amarillo Feb. 25, 2025, no pet.) (mem. op., not designated for publication). In that nonprecedential case, the Amarillo court considered similar statements made by the presiding judge to the ones made in the present case. The Dominguez court, however, weighed several factors not relevant to the analysis in this case to determine whether the judge showed bias when sentencing: (1) the sufficiency of the evidence supporting revocation, (2) the opportunities the defendant was given to comply with the terms of her community supervision, and (3) the absence of other evidence of bias. See id. We do not agree with the Amarillo court that these other factors are determinative to the question of whether the trial court considered the available range of punishment.

Maritza M. Antú, Justice