Nos. 05-10-00862-CR, 05-10-00863-CR, 05-10-00864-CR, 05-10-00865-CR.
Opinion issued January 13, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause Nos. F05-41733-RJ, F05-41862-IJ, F06-14152-QJ, F06-67987-NJ.
Before Justices MORRIS, FRANCIS, and MURPHY.
Opinion By Justice MORRIS.
In these cases, Yerusalem Mehari Tsegai appeals her convictions for aggravated kidnapping, retaliation, unauthorized use of a motor vehicle, and possession of cocaine with intent to deliver. In two points of error, appellant contends the trial court denied her due process and due course of law and the judgments fail to reflect accurately the conditions of community supervision she was found to have violated. We modify and affirm the trial court's judgments.
Factual Background
Appellant waived a jury and pleaded guilty to aggravated kidnapping with a deadly weapon, retaliation, UUMV, and possession, with intent to deliver, of cocaine. Pursuant to plea agreements, the trial court deferred adjudicating guilt in the aggravated kidnapping case, placed appellant on ten years' community supervision, and assessed a $2,000 fine. In each remaining case, the trial court found appellant guilty and assessed the following punishments: ten years' imprisonment, probated for ten years, and a $2,000 fine for retaliation and possession of cocaine; and two years' confinement in state jail, probated for five years, and a $2,000 fine for UUMV. The State later moved to adjudicate guilt and revoke community supervision in the cases. At a hearing on the motions, appellant pleaded true to the allegations that she had violated the conditions of her community supervision. The trial court found the allegations true, adjudicated appellant's guilt in the kidnapping case, revoked her community supervision in the three other cases, and assessed punishment at ten years' imprisonment for aggravated kidnapping, retaliation, and possession of cocaine, and two years' confinement in state jail for UUMV. Discussion
In her first point of error, appellant contends she was denied due process and due course of law when the trial court imposed predetermined sentences and omitted the possibility of continuing her community supervision. Appellant asserts the trial judge's comment at the close of evidence makes clear that the full range of punishment was never really considered. After her sentences were pronounced, appellant asked, "What did that all just mean?" and "So I'm going to prison?" The trial judge replied, "That's what happens when [you're] on probation and you don't do what you're supposed to do." Appellant did not complain about the sentences either at the time they were imposed or in motions 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, she has not preserved this issue for our review. Even if appellant had preserved error, however, her argument still fails. Absent a clear showing of bias, a trial court's actions will be presumed to have been correct. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). In this case, the complained of comments do not reflect bias, partiality, or that the trial judge failed to consider the full range of punishment. During the revocation hearing, the trial judge heard testimony from appellant explaining why she violated the conditions of her community supervision, that she continued using drugs while on probation because she was "depressed," and that she did not pay any of the fees because she was in school. Appellant also said she understood that the judge could sentence her to prison or continue her community supervision. Appellant asked the judge to continue her community supervision and order outpatient drug treatment for her. We conclude nothing shows the trial court failed to consider the full range of punishment before imposing appellant's sentences. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We overrule appellant's first point of error. In her second point of error, appellant contends the trial court's judgments fail to reflect accurately the conditions of community supervision she was found to have violated. Appellant asks us to modify the judgments to show she was found to have violated conditions (B), (K), (Q), and (V). The State agrees to the modifications of the trial court's judgments as appellant requests. In its motions to revoke, the State alleged appellant violated several conditions of community supervision, including: condition (A) by committing the new offense of unlawful possession of a firearm by a felon; condition (B) by testing positive for THC, PCP, and cocaine; condition (K) by failing to pay supervision fees; condition (Q) by failing to complete drug-alcohol education program as directed; and condition (V) by failing to complete anger management classes as directed. In cause number 05-10-00862-CR, the State alleged appellant violated conditions (A), (B), and (V). In cause numbers 05-10-00863-CR and 05-10-00865-CR, the State alleged appellant violated conditions (A), (B), (K), (Q), and (V). In cause number 05-10-00864-CR, the State alleged appellant violated conditions (A) and (B). At the revocation hearing, the State abandoned the allegation that appellant violated condition (A). Appellant then pleaded true to the remaining allegations in each motion. The trial court's judgments, however, recite that the court found appellant had violated her community supervision "as set out in the State's original motion." Thus, the trial court's judgments are incorrect. We sustain appellant's second point of error. In cause number 05-10-00862-CR, we modify the trial court's judgment to show appellant violated conditions (B) and (V) of community supervision as set out in the State's motion to adjudicate. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). In cause numbers 05-10-00863-CR and 05-10-00865-CR, we modify the trial court's judgments to show appellant violated conditions (B), (K), (Q), and (V) of the State's motion to revoke community supervision. And in cause number 05-10-00864-CR, we modify the trial court's judgment to show appellant violated condition (B). Id. As modified, we affirm the trial court's judgments.