Opinion
No. 05-10-00179-CR
Opinion issued January 5, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F05-72152-UK.
Before Justices FitzGERALD, LANG-MIERS, and FILLMORE.
MEMORANDUM OPINION
Adrian Kelly appeals following the adjudication of his guilt for robbery. In a single issue, Kelly contends he was denied due process because the trial court failed to consider the entire range of punishment. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. We affirm the trial court's judgment. Kelly waived a jury and pleaded guilty to robbery. See Tex. Penal Code Ann. § 29.02(a) (West 2003). Pursuant to a plea agreement, the trial court deferred adjudicating Kelly's guilt, placed him on three years' community supervision, and assessed a $1500 fine. The trial court subsequently extended Kelly's community supervision for an additional two years. The State later moved to adjudicate guilt, alleging Kelly committed an aggravated robbery offense while on community supervision and failed to pay fees. During the hearing on the State's motion, the trial court stated:
If you plead true to those allegations and the evidence shows them to be true, I can find them true; if so, I can grant the State's Motion and assess your punishment at anywhere from 2 to 20 years confinement in the penitentiary and optional fine not to exceed $10,000; do you understand that.Kelly indicated he understood and pleaded true to the allegations. The trial court took judicial notice of a CATS evaluation prepared by the probation department. Marya Robledo and Jerome Bell testified about Kelly's participation in the aggravated robbery at a Radio Shack store where they worked, and the trial court watched a video from the store of the robbery. Eunice Kelly, Kelly's mother, testified about Kelly's problems with substance abuse and that Kelly lost his job several months before the robbery and "just got desperate." Mallorie Jimerson, Kelly's girlfriend, also testified about Kelly relapsing into taking drugs following the loss of his job. Both Eunice and Jimerson testified they were surprised by the video of the robbery. Eunice stated she was "shocked" and "wouldn't have thought that my son would do anything like that." Jimerson testified she did not believe Kelly would have committed the offense if he had not been using drugs and that the man in the video was not the man she knew. Both Eunice and Jimerson requested that Kelly receive treatment for his drug use. Kelly testified he was not the type of person to frighten someone and apologized to the victims of the robbery. According to Kelly, he started using drugs due to depression after losing his job. He did not remember the robbery at the Radio Shack because he had taken Xanax and drank alcohol that day. Kelly requested the trial court send him to drug treatment. The trial court found the allegations true, adjudicated Kelly guilty, and assessed punishment at five years' imprisonment. In his sole issue, Kelly contends the trial court violated his due process rights under the United States and Texas Constitutions by refusing to consider the full range of punishment. See U.S. Const. Amend. VIII, XIV; Tex. Const. Art. I, § 13. Kelly specifically asserts the trial court's comment prior to the punishment hearing excluded the possibility of extending his community supervision term or sending him to drug treatment. Kelly argues he asked for and should have received drug treatment for his "drug problems related to depression." Kelly 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.) (for error to be preserved for appeal, record must show appellant made timely request, objection, or motion). Thus, he has not preserved this issue for our review. Even if Kelly had preserved error, his complaint is without merit. 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). "[A] trial court's arbitrary refusal to consider the entire range of punishment in a particular case violates due process." Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005) (per curiam); see also Brumit, 206 S.W.3d at 645. However, absent a clear showing of bias, we presume the trial court's actions were correct. Brumit, 206 S.W.3d at 645. The one comment by the trial court relied on by Kelly does not reflect the trial court failed to consider the full range of punishment. Rather, it indicates the trial court was warning Kelly about the possible consequences of pleading true to the allegations that he violated his community supervision. The record reflects the trial court took judicial notice of the CATS evaluation and heard evidence relating to Kelly's community supervision, the severity of Kelly's conduct during the aggravated robbery, Kelly's drug use after he lost his job, and whether Kelly was the type of person who would have committed the aggravated robbery if he was not using drugs. The record does not clearly reflect the trial court failed to consider the entire range of punishment and, therefore, fails to support Kelly's due process claim. We resolve Kelly's sole issue against him. We affirm the trial court's judgment.