Opinion
No. 4-05-00795-CR
Delivered and Filed: June 14, 2006. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 1994-CR-4538, Honorable Philip A. Kazen, Jr., Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
This is an appeal from a probation revocation proceeding. Anthony A. Infantino contends the trial court abused its discretion in revoking his probation and in failing to reduce the sentence imposed. We affirm the trial court's judgment. Infantino pled guilty to aggravated assault stipulating that he handed a gun to a passenger in the vehicle Infantino was driving who then proceeded to shoot at the driver of another vehicle. Pursuant to a plea bargain agreement, Infantino was sentenced to six years imprisonment without a deadly weapon finding; however, the sentence was suspended, and Infantino was placed on probation for a term of six years commencing March 13, 1998. On October 19, 1998, the State filed a motion to revoke Infantino's probation, alleging that he committed the offense of unlawfully distributing a controlled substance and failed to make court-ordered payments. On July 16, 2002, the State withdrew the motion. On February 24, 2004, the trial court extended the probation period for an additional year. On August 5, 2004, the State filed a second motion to revoke Infantino's probation, alleging that he failed to report and failed to pay the full amount of his court-ordered payments. Infantino pled true to the allegations. The trial court revoked Infantino's probation and sentenced him to six years imprisonment. A plea of "true" to a violation of community supervision constitutes sufficient evidence to support revocation. Hays v. State, 933 S.W.2d 659, 660 (Tex.App.-San Antonio 1996, no pet.). Once sufficient evidence is presented of a violation of a condition of community supervision, the trial court has almost absolute discretion in choosing whether to continue, modify or revoke the community supervision. Id. Infantino argues that the trial court abused its discretion in revoking his probation and sentencing him to the full six years because he "was a college student, was gainfully employed, and was an expectant father" and because he "had spent two years, nine months, and 28 days in an Alabama prison during his period of Texas probation." "Given the non-violent nature of the conditions that [Infantino] agreed that he violated, [Infantino asserts] basic fairness dictates that [he] should have been given a reduced sentence or continued on probation." Because Infantino failed to object to the sentence at trial, he has waived his complaint. Tex.R.App.P. 33.1. Even if preserved, a trial court does not abuse its discretion in imposing the sentence originally assessed upon the revocation of probation. See Guzman v. State, 923 S.W.2d 792, 799 (Tex.App.-Corpus Christi 1996, no pet.); see also Krumboltz v. State, 945 S.W.2d 176, 177 (Tex.App.-San Antonio 1997, no pet.) (rejecting argument that trial court abused its discretion in imposing full sentence based on amount of time appellant spent on probation). The sentence was not imposed as punishment for the "non-violent" supervisory violations but as punishment for the felony to which Infantino pled guilty and for which he was convicted. Atchison v. State, 124 S.W.3d 755, 759 (Tex.App.-Austin 2003, pet. ref'd). The trial court's judgment is affirmed.
Because Texas had not placed a detainer on Infantino while he was in prison in Alabama, Infantino concedes he is not entitled to time credit as a result. See Ex parte Bynum, 772 S.W.2d 113, 115 (Tex.Crim.App. 1989).