Summary
concluding that because revocation of defendant's community supervision was justified based on any one of four violations of his community-supervision conditions that were unrelated to payment of assessed fees and costs, court did not need to address defendant's contention that trial court erred by revoking his community supervision and sentencing him to confinement without making finding that his failure to pay fees and costs associated with community supervision was intentional
Summary of this case from Roming v. StateOpinion
No. 05-16-00531-CR
04-05-2017
JAMES EDMOND AUSTIN A/K/A JAMES EDWARD AUSTIN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court Collin County, Texas
Trial Court Cause No. 380-81075-2015
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Fillmore
James Edmond Austin appeals the trial court's judgment revoking his community supervision. In two points of error, Austin contends the trial court abused its discretion in assessing punishment and erred in revoking his community supervision and sentencing him to confinement without first finding that he intentionally failed to pay fees and costs associated with community supervision. We affirm the trial court's judgment revoking community supervision.
Background
Austin was charged by indictment with the third-degree felony offense of family-violence assault, enhanced by a previous family-violence assault conviction. TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2016). Pursuant to a plea agreement, Austin pleaded guilty to the offense and "true" to the enhancement paragraph contained in the indictment. The trial court sentenced Austin pursuant to that plea agreement to eight years' confinement and assessed a fine of $500.00. However, the trial court's judgment suspended the sentence and placed Austin on community supervision for a period of six years. Austin's community supervision was subject to various conditions imposed by the trial court.
The State filed a motion to revoke Austin's community supervision. At the hearing on the State's motion to revoke, Austin pleaded true to eight allegations in the motion that he had violated conditions of his community supervision. At the conclusion of the hearing, the trial court announced its findings that Austin's plea of true to the allegations, as well as the evidence at hearing, substantiated the allegations in the motion and the allegations presented were true. The trial court revoked Austin's community supervision and sentenced him to eight years' confinement with no fine. Austin filed this appeal of the trial court's judgment revoking his community supervision.
Punishment Assessed
In his first point of error, Austin contends the trial court abused its discretion by sentencing him to eight years' confinement. Austin argues the punishment imposed "violates the objectives of the system of prohibitions, penalties, and correctional measures" in the penal code and "does not meet the objectives of the prevention of oppressive treatment of a person convicted of an offense." Austin also asserts the trial court failed to consider the full range of punishment. The State responds that Austin has not preserved his complaints because he failed to raise an objection in the trial court regarding the sentence imposed. Alternatively, the State argues Austin's sentence satisfies the objectives of the penal code, the trial court did not abuse its discretion in sentencing Austin, and there is no indication on this record that the trial court refused to consider the full range of punishment.
Austin first argues the punishment imposed by the trial court does not comport with the penal code objectives of deterrence, rehabilitation, and prevention. See TEX. PENAL CODE ANN. § 1.02 (West 2011). Austin did not complain about the sentence either at the time it was imposed or in a motion for new trial. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.) (to preserve error, appellant must make a timely request, objection, or motion). As a result, he has not preserved this argument for our review. See TEX. R. APP. P. 33.1(a)(1); Castaneda, 135 S.W.3d at 723.
See also Adepegba v. State, No. 05-15-01139-CR, 2016 WL 5819232, at *2 (Tex. App.—Dallas Oct. 5, 2016, no pet.) (mem. op., not designated for publication); Davis v. State, No. 05-15-00826-CR, 2016 WL 335626, at *1 (Tex. App.—Dallas Jan. 27, 2016, no pet.) (mem. op., not designated for publication).
Additionally, as a general rule, punishment that is assessed within the statutory range for an offense is not excessive or unconstitutionally cruel or unusual. See Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref'd). As charged in this case, family-violence assault, as enhanced by a prior family-violence assault conviction, is a third-degree felony offense. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). The punishment range for a third-degree felony is imprisonment for a term of not more than ten years or less than two years with an optional fine not to exceed $10,000.00. TEX. PENAL CODE ANN. § 12.34 (West 2011). Austin's eight-year sentence is within the punishment range for this third-degree felony offense. See Carpenter v. State, 783 S.W.2d 232, 232-33 (Tex. App.—Dallas 1989, no pet.) (punishment assessed within range of punishment did not fail to comport with objectives of Texas Penal Code, i.e., deterrence, rehabilitation, and prevention); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (as general rule, sentence within proper punishment range will not be disturbed on appeal). Further, the eight-year punishment the trial court assessed was the term of confinement Austin had previously accepted in the plea agreement. Accordingly, even if Austin's argument had been preserved for appellate review, the punishment imposed by the trial court did not contravene the objectives of the penal code.
See also Adepegba, 2016 WL 5819232, at *2; Davis, 2016 WL 335626, at *1.
See also Balderas v. State, No. 05-14-01081-CR, 2015 WL 3814354, at *3 (Tex. App.—Dallas June 18, 2015, pet. ref'd) (mem. op., not designated for publication).
With regard to Austin's argument that the trial court failed to consider the full range of punishment, Austin did not raise this objection in the trial court. However, the right to a neutral and detached trial judge that will consider the full range of authorized punishment "is a substantive right necessary to effectuate the proper functioning of our criminal system," and is classified as a waivable-only right. Grado v. State, 445 S.W.3d 736, 743 (Tex. Crim. App. 2014); see also Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993) (defining "waivable only" rights as those that "the judge has an independent duty to implement" absent effective and express waiver by defendant), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). Here, the record does not reveal a waiver of that right. Therefore, Austin's argument that the trial court failed to consider the full range of punishment may be raised for the first time on appeal. See Grado, 445 S.W.3d at 741-43.
See also Mathews v. State, No. 05-14-00884-CR, 2015 WL 5813666, at *4 (Tex. App.—Dallas Oct. 6, 205, no pet.) (mem. op., not designated for publication).
A trial court's arbitrary refusal to consider the entire range of punishment constitutes a denial of due process. Id. at 739. Due process requires the trial court conduct itself in a neutral and detached manner. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). However, absent a clear showing of bias, we presume the trial court's actions were correct. Brumit, 206 S.W.3d at 645. Indications that the trial court was not biased arise from a record that: (1) shows the trial court did not make any comments suggesting it considered less than the full punishment range; (2) establishes the trial court heard extensive evidence before assessing punishment; and (3) contains explicit evidence the trial court considered the full range of punishment. Id . at 645.
Austin asserts the trial court's instruction to the Collin County Probation Department case worker, Kileigh Even, to file a motion to revoke community supervision, and the trial court's failure to take Austin's mitigating evidence into account, indicates the trial court had no intention of considering the full range of punishment. Even testified that on two occasions in December 2015, Abigail Rathkoph, the victim of the family violence at issue, contacted the probation department with complaints Austin was harassing her and that those contacts prompted the trial court's instruction to the probation department to file a motion to revoke Austin's community supervision. Rathkoph testified at the revocation hearing that she made two contacts with the probation department in December 2015 regarding complaints Austin was harassing her by flattening the tires of her automobile, throwing eggs on her back porch, and sending her a large volume of text messages and recorded voicemails. However, the trial court's instruction to Even to file a motion to revoke Austin's community supervision based on Rathkoph's complaints in no way establishes the trial court had no intention of considering the full range of punishment. Rather, the trial court heard all the testimony the defense offered before making a decision, and the trial court gave no indication it was not considering the mitigating evidence. The trial court also made no comment at the revocation hearing that it was considering less than the full punishment range, and the trial court's assessment of punishment of eight years' confinement does not establish it imposed a predetermined sentence without regard to mitigating evidence. The evidence does not support Austin's contention that the trial court failed to consider the full range of punishment in sentencing him.
See Navarrete v. State, No. 05-99-00120-CR, 2000 WL 378524, at *1 (Tex. App.—Dallas Mar. 31, 2000, no pet.) (not designated for publication).
In the absence of any indication that the trial court did not consider the full range of punishment, we must presume the trial court was fair and impartial. Brumit, 206 S.W.3d at 645. We conclude that, on the record of this case, Austin has failed to demonstrate the trial court arbitrarily refused to consider the full range of punishment before it assessed punishment of eight years' confinement.
We conclude the trial court did not abuse its discretion by sentencing Austin to eight years' confinement. We resolve Austin's first point of error against him.
Grounds for Revocation
In his second point of error, Austin relies on Bearden v. Georgia, 461 U.S. 660, 672 (1983), in arguing the trial court erred by revoking his community supervision and sentencing him to confinement without first making a finding that failure to pay fees and costs associated with community supervision was intentional. In Bearden, the United States Supreme Court considered the constitutionality of revoking a defendant's probation and sentencing him to confinement when, through no fault of his own, the defendant lacked the means or ability to pay a fine imposed as a condition of probation. Bearden, 461 U.S. at 668-69. Relying on the Fourteenth Amendment to the United States Constitution, the Court held that revocation of probation and imposition of confinement under such circumstances was fundamentally unfair. Id. at 672-73. The Court ruled that:
[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment.Id . at 672. The State responds that Austin has not preserved this point of error for appeal and the trial court's judgment revoking Austin's community supervision and sentencing him to confinement can be supported on the basis of admitted violations of the conditions of community supervision that are unrelated to nonpayment of fees and costs.
We review an order revoking community supervision under an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Dansby v. State, 468 S.W.3d 225, 231 (Tex. App.—Dallas 2015, no pet.) (op. on remand). A plea of true to an allegation contained in a motion to revoke community supervision, standing alone, is sufficient to support revocation of community supervision and adjudication of guilt. Tapia v. State, 462 S.W.3d 29, 31 n.2 (Tex. Crim. App. 2015) (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980)). Likewise, a trial court finding that the defendant violated a single condition of community supervision is sufficient to support revocation of community supervision and adjudication of guilt. See Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009); Dansby, 468 S.W.3d at 231.
See also Edwards v. State, No. 05-11-00817-CR, 2012 WL 5504015, at *3 (Tex. App.—Dallas Nov. 14, 2012, no pet.) (not designated for publication).
The State moved to revoke Austin's community supervision on grounds Austin violated the terms and conditions of his community supervision by failing to: (1) participate in and successfully complete a Battering Intervention program; (2) report as scheduled to the supervision officer for the month of October 2015; (3) perform 100 hours of community service at the rate of ten hours per month; (4) submit to a substance abuse evaluation and/or participate in and complete treatment recommendations resulting from the evaluation; (5) pay the supervision fee assessed in the amount of $50.00 per month; (6) pay the Crime Stoppers fee assessed in the amount of $50.00 within 30 days; (7) pay the assessed $500 fine within thirty days; and (8) pay court costs of $378.29 within thirty days.
At the revocation hearing, Austin pleaded true to the allegations contained in the State's motion to revoke his community supervision. At the conclusion of the hearing, the trial court found Austin's plea of true to the allegations in the motion to revoke, as well as the evidence presented at hearing, substantiated the allegations in the motion to revoke and the allegations in the motion were true. The revocation of Austin's community supervision was based not only on his failure to pay assessed fees and costs associated with community supervision, but also on four independent allegations unrelated to his failure to pay assessed fees and costs. Austin's pleading of true to each of the alleged violations of the conditions of his community supervision, standing alone, is sufficient to support revocation. See Tapia, 462 S.W.3d at 31 n.2; see also Dansby, 468 S.W.3d at 231. Accordingly, since revocation of Austin's community supervision was justified based on any one of four violations of the conditions of community supervision that are unrelated to payment of assessed fees and costs, we need not reach Austin's argument the trial court erred by revoking his community supervision and sentencing him to confinement without first making a finding his failure to pay fees and costs associated with community supervision was intentional. We conclude the trial court did not abuse its discretion in revoking Austin's community supervision, and we resolve Austin's second point of error against him.
See also Patterson v. State, No. 05-13-01567-CR, 2015 WL 356891, at *2 (Tex. App.—Dallas Jan. 28, 2015, no pet.) (mem. op., not designated for publication) (Court did not reach argument regarding community supervision revocation based on nonpayment of sex offender treatment or community supervision fee because defendant pleaded true to violating condition of community supervision regarding community service hours, and that plea of true, standing alone, was sufficient to support revocation).
See Brightmon v. State, No. 05-13-01371-CR, 2015 WL 3653235, at *4 (Tex. App.—Dallas June 12, 2015, no pet.) (mem. op., not designated for publication). Since we do not reach Austin's argument the trial court erred by revoking his community supervision and sentencing him to confinement without first making a finding his failure to pay fees and costs associated with community supervision was intentional, we need not address the State's argument Austin failed to preserve the issue for appellate review.
Conclusion
We resolve Austin's points of error against him, and we affirm the trial court's judgment revoking community supervision.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 160531F.U05
JUDGMENT
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-81075-2015.
Opinion delivered by Justice Fillmore, Justices Lang and Schenck participating.
Based on the Court's opinion of this date, we AFFIRM the trial court's judgment revoking community supervision. Judgment entered this 5th day of April, 2017.