Opinion
Nos. 05-10-01213-CR, 05-10-01672-CR
Opinion Filed October 4, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F09-71794-H, F10-19388-H.
Before Justices BRIDGES, RICHTER, and MURPHY.
MEMORANDUM OPINION
Derek Briggs appeals the sentences imposed (1) in his revocation of community supervision case (No. 05-10-01213-CR) and (2) for a separate conviction for harassment by a person in a correctional facility (No. 05-10-01672-CR). In a single issue, appellant contends the trial court denied him due process by refusing to consider the full range of punishment and by predetermining his sentences. We affirm the trial court's judgments. The background of the cases and the evidence admitted 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. In the revocation of community supervision case, appellant had waived a jury, pleaded guilty to unauthorized use of a motor vehicle (UUMV), and pleaded true to two enhancement paragraphs contained in the indictment. See Tex. Penal Code Ann. § 31.07(a) (West 2011). After finding appellant guilty and the enhancement paragraphs true, and after hearing evidence of appellant's drug and mental health problems, the trial court assessed punishment at ten years' imprisonment, probated for six years, with $250 restitution and a $250 fine. The State later moved to revoke appellant's community supervision, alleging numerous violations that included theft and several urinalyses that tested positive for drugs. The trial court denied that motion, but amended the terms of community supervision to include confinement and treatment in a Substance Abuse Punishment Facility Program (SAPFP). Two and a half months later, the State filed a second motion to revoke based on a new charge of harassment by a person in a correctional facility as a result of appellant's throwing a cup of liquid feces at a professional counselor. See id. § 22.11(a)(1). Appellant waived a jury and pleaded guilty to the new offense of harassment by a person in a correctional facility. Thereafter, the trial court conducted a hearing on the State's motion to revoke and for purposes of sentencing for the new offense to which appellant had pleaded guilty. Several witnesses testified for the State regarding appellant's behavioral issues and threats to staff, including the counselor who testified to the specific offense of appellant throwing the feces at her that penetrated her eyes, mouth, and ears. Appellant did not testify or call any witnesses. At the conclusion of the hearing, the trial court found the allegation supporting revocation true and revoked appellant's community supervision in the UUMV case. Having previously found appellant guilty for the harassment offense, the trial court assessed punishment at ten years' imprisonment in both cases, to be served consecutively. In a single issue, appellant contends the trial court denied him due process by failing to consider the full range of punishment and predetermining the sentences. He also references "due course of law" in the "argument" title of his appellate brief. He makes no further reference or argument supporting the language, and it appears to be a clerical error. If the reference is not a mistake, appellant has waived any contention regarding due course of law. See Tex. R. App. P. 38.1(i) (requiring clear and concise arguments with appropriate citations to authorities and to the record). Appellant raises his sentencing due process issue for the first time on appeal. He argues, however, that error is "apparent on the face of the record." Specifically, he asserts the trial court's docket entry referencing appellant's "bad" criminal history shows the trial court predetermined his fate without considering any mitigating factors, such as appellant's longstanding drug addiction and mental health issues. Appellant has failed to preserve error as to his due process complaint because he did not complain about the sentences either at the time they were imposed or in his 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, the record must show appellant made a timely request, objection, or motion). Specifically, he did not object to the sentences after they were imposed, and he alleged only that the "verdict is contrary to the law and the evidence" in his motions for new trial. Even if appellant had preserved error, his argument fails. Even assuming we may consider the handwritten docket entry on which appellant relies to assert the trial court "predetermined his fate," that entry was made the date appellant first pleaded guilty to the UUMV charge and appears to state: "Def. admonished re: violating. No plea bargain if probation violation filed — criminal history of Def. is bad." The notation preceded appellant's subsequent appearance on the first revocation motion in which the State alleged numerous violations, the trial court heard evidence and denied revocation, and the trial court continued appellant on community supervision with the SAPFP condition. A year after the notation, during which time the trial court had denied one revocation motion, appellant pleaded guilty to the new offense. The trial court held a new hearing on the second revocation motion at which five witnesses testified; appellant failed to testify or call any witnesses. Although appellant references his plea agreements in both cases in which the State had written the recommendations "7 TDC" for the new offense and "8 TDC" for the revocation, the State asked for a ten-year sentence at the conclusion of the hearing for both cases arguing that "[g]iven choices, [appellant] is always going to make the wrong one." In pronouncing the sentence, the trial court specifically referenced the "chance after chance after chance" appellant had received, that the people who work in the jail and the mental health professionals in Dallas had "done everything that they possibly could to help [him]," that appellant has a "long and extensive criminal history," and that appellant has "hurt a lot of people." This record shows the State requested the sentences given in both cases, the trial court previously had given appellant community supervision and had continued him on probation despite numerous alleged violations, the trial court considered the evidence, and the sentences imposed were within the statutory range for the offenses enhanced by prior felony convictions. See Tex. Penal Code Ann. §§ 12.34(a), 12.42(a)(1), 22.11(b), 31.07(b) (West 2011). We conclude the trial court did not abuse its discretion in assessing the ten-year sentences, and we therefore resolve appellant's sole issue against him. In each case, we affirm the trial court's judgment.