Opinion
No. 06-17-00213-CR
06-07-2018
BRADLEY JAMES WEAVER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court Hopkins County, Texas
Trial Court No. 1725861 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Bradley James Weaver pled guilty to a charge of possession of a controlled substance, heroin, in an amount of less than one gram, and submitted his punishment to the trial court. After a presentencing investigation (PSI) report was prepared, a punishment hearing was held on November 15, 2017, at which Weaver was the only witness to testify. Weaver testified that he had been in out-patient care for drug addiction at Emergence Healthcare Network (EHN) in El Paso from January 2017 through September 2017 and requested community supervision to continue his treatment with EHN. On cross-examination, the State questioned Weaver at length about (1) an arrest in Hopkins County occurring one year before the subject infraction, in which Weaver was accused of driving under the influence of a controlled substance, and (2) his history of drug use. After the arguments of counsel, the trial court found Weaver guilty, assessed punishment of two years in state jail, which it suspended, and placed Weaver on community supervision for five years. As a condition of community supervision, the trial court ordered Weaver to attend and successfully complete a program of rehabilitation at a SAFP unit (the SAFP Condition).
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2017).
Substance Abuse Felony Punishment. See TEX. CODE CRIM. PROC. ANN. art. 42A.303 (West Supp. 2017).
On appeal, Weaver asserts that the trial court's imposition of the SAFP Condition was an abuse of discretion. He argues that this condition was based on his prior arrest for driving under the influence, in violation of his constitutional rights under the United States and Texas Constitutions to not be subjected to cruel and unusual punishment. See U.S. CONST. amend. VIII; TEX. CONST. art. 1, § 13. We find that Weaver has not preserved his point of error. However, because the judgment of the trial court contains several erroneous entries, we modify the judgment and affirm the judgment, as modified.
"Preservation of error is a systemic requirement on appeal. If an issue has not been preserved for appeal, neither the court of appeals nor this Court should address the merits of that issue. Ordinarily, a court of appeals should review preservation of error on its own motion." Ford v. State, 305 S.W.3d 530, 532-33 (Tex. Crim. App. 2009). To preserve a complaint for our review, a party must make a timely request, objection, or motion to the trial court that states the specific grounds for the desired ruling if not apparent from the context. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. TEX. R. APP. P. 33.1(a)(2). An appellant claiming a violation of his constitutional right not to be subjected to cruel and unusual punishment is not excused from preserving his error at the trial court. See Stewart v. LaGrand, 526 U.S. 115, 119 (1999) (per curiam) (appellant waived Eighth Amendment complaint); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (complaint under Article I, Section 13, of Texas Constitution forfeited when no objection at trial).
In this case, Weaver made no objection when the trial court announced his punishment and the SAFP Condition in open court. Although he filed a motion for new trial, Weaver merely asserted that "[t]he verdict in this cause is contrary to the law and the evidence." When the trial court inquired about the basis of the motion for new trial at the hearing on the motion, Weaver merely responded that it was only to the question of punishment. At the hearing, Weaver never argued that the trial court's imposition of the SAFP Condition was based on the prior arrest for driving under the influence in violation of his constitutional rights. Accordingly, Weaver has preserved nothing for our review. See Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009 pet. ref'd). We overrule his sole point of error.
Even if we were to reach the merits of Weaver's complaint, as Weaver recognizes in his brief, the trial court explained at length, both at the punishment hearing and the hearing on the motion for new trial, that based on Weaver's testimony, it was concerned that in spite of his outpatient treatment, Weaver had not accepted the gravity of his addiction to heroin, and that it thought SAFP offered him the best opportunity for rehabilitation. Although the trial court mentioned Weaver's testimony regarding the prior arrest for driving under the influence, it appears that it was concerned about Weaver's refusal to take responsibility for the contraband found in his truck during that incident, not about the arrest itself. Under this record, we do not agree that the trial court imposed the SAFP Condition based upon the prior arrest.
This Court has the authority to modify a judgment to make the record speak the truth when the matter has been called to our attention by any source. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). "Our authority to reform incorrect judgments is not dependent on the request of any party, nor does it turn on a question of whether a party has or has not objected in trial court; we may act sua sponte and may have a duty to do so." Rhoten, 299 S.W.3d at 356 (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, writ ref'd); see French, 830 S.W.2d at 609.
Under the "Terms of Plea Bargain" section of the trial court's judgment, it recites, "2 YEARS STATE JAIL DIVISION TDCJ; PROBATED FOR 5 YEARS." However, the record reflects that Weaver entered an open plea of guilty without the benefit of a plea bargain agreement. We hereby modify the judgment to reflect that fact.
Also, under the "Execution/Suspension of Sentence" section of the judgment, the trial court incorrectly selected the "The Court ORDERS Defendant's sentence EXECUTED" option, when the record shows that the sentence was suspended and the defendant was placed on community supervision. Consequently, the trial court should have marked the "The Court ORDERS Defendant's sentence of confinement SUSPENDED" option. We hereby modify the judgment to reflect the correct option.
For the reasons stated, we modify the trial court's judgment by deleting in its entirety the entry appearing under the "Terms of Plea Bargain" section, deleting the "x" beside the "The Court ORDERS Defendant's sentence EXECUTED" option under the "Execution/Suspension of Sentence" section, and placing an "x" beside the "The Court ORDERS Defendant's sentence of confinement SUSPENDED" option under that section. As modified, we affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: May 29, 2018
Date Decided: June 7, 2018 Do Not Publish