Opinion
No. 05-03-00755-CR
Opinion Filed July 6, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F99-54525-JL. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
Marcelino Barnebas Rico was charged with burglary of a building. Pursuant to his guilty plea the trial court assessed punishment at two years' confinement and a $300 fine; later the trial court granted Rico's motion for shock probation and placed Rico on community supervision for a period of two years. See Tex. Code Crim. Proc. Ann. art. 42.12, § 15(f) (Vernon Supp. 2004). At that time the trial court stated:
"If I see you again, I'm going to send you back to the state jail for two years. Do you understand?"Within two years, the State moved to revoke the shock probation, alleging Rico committed multiple violations of the terms and conditions of his community supervision. Rico pled true to one violation — that he did not pay a probation fee as directed — and the state withdrew its other allegations. After a hearing, and without reference to its prior statement, the trial court sentenced Rico to two years' punishment and a $300 fine. In a single point of error, Rico contends the trial court denied him due process of law by predetermining his sentence. The background of the case and the evidence adduced below are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. Rs. App. P. 47.2(a), 47.4. We affirm. The trial court violates due process of law if it assesses a predetermined sentence, arbitrarily refuses to consider the entire punishment range, or refuses to consider mitigating evidence when determining punishment. See McClenan v. State, 661 S.W.2d 108, 110 (Tex.Crim.App. 1983), overruled in part on other grounds by De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App. 2004); Cole v. State, 931 S.W.2d 578, 580 (Tex.App.-Dallas 1995, pet. ref'd). However, Rico did not object to the trial court's sentencing procedure at the revocation hearing or in a motion for new trial and, therefore, has waived any complaint. See Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995); Cole, 931 S.W.2d at 580; see also Tex.R.App.P. 33.1(a). Rico relies on Jefferson v. State, 803 S.W.2d 470, 472 (Tex.App.-Dallas 1991, pet. ref'd), in support of his argument. There the trial court told the defendant at his deferred adjudication hearing that he would receive the maximum punishment if he violated his probation. When the court later adjudicated Jefferson's guilt, it referred to its prior statement, and then kept its promise. We held the trial court violated Jefferson's due process rights by improperly restricting its ability to consider the full range of punishment. However, even if Rico had not waived any error, this case is distinguishable from Jefferson in several respects. First, the record does not indicate that the trial court recalled, much less relied on, its prior statement. Second, there is evidence in the record that at the revocation hearing the trial court looked at the allegations, evidence, and seven other extraneous offenses. The trial court noted that since the probation hearing Rico was involved in a variety of theft offenses and his previous felony probation was revoked. Thus the trial judge did not rely solely on the promise made at the probation hearing, as did the judge in Jefferson. See id. at 472. Instead, this case is similar to Fielding v. State, 719 S.W.2d 361 (Tex.App.-Dallas 1986, pet. ref'd) where the appellate court found no error because the trial court had taken reports, evidence, and circumstances into consideration. We conclude Rico waived any error regarding the trial court's sentence. We further conclude that, even if he had not waived his complaint on appeal, the record does not indicate that the trial court's decision to impose a two-year sentence under these circumstances violated Rico's right to due process of law or constituted an abuse of discretion. See Tex. Code Crim. Proc. Ann. art. 42.12, § 23(a) (Vernon Supp. 2004). We overrule Rico's single point of error and affirm the trial court's judgment.