Opinion
NO. 01-16-00064-CR
03-30-2017
KYLE EDWARD MUTTERS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas
Trial Court Case No. 1346494
MEMORANDUM OPINION
Appellant, Kyle Edward Mutters, was charged by indictment with the offense of burglary of a habitation and pleaded guilty to the charged offense. The trial court deferred adjudication of appellant's guilt and placed him on community supervision for five years. The State subsequently filed a motion to adjudicate guilt, and appellant pleaded true to all but one of the allegations in the motion to adjudicate. The trial court adjudicated appellant guilty and sentenced him to twenty years' confinement. In his sole point of error, appellant contends that he was denied the right to an impartial judge when the trial court considered evidence outside of the record when assessing his punishment. We affirm.
Background
On June 21, 2012, appellant pleaded guilty to the offense of burglary of a habitation. The trial court deferred a finding of guilt and placed appellant on community supervision for five years.
On January 16, 2015, the State filed an amended motion to adjudicate appellant's guilt, alleging that appellant had violated nineteen terms and conditions of his community supervision by (1) committing aggravated robbery; (2) failing to report to his community supervision officer in November and December 2014; (3) failing to provide written verification of employment; (4) failing to notify his community supervision officer of a change in residence, rendering appellant's whereabouts "currently unknown"; (5) failing to submit a urine sample on seven occasions; (6) failing to participate in a community service program; (7) failing to pay six different fees/fines; and (8) failing to participate in a drug/alcohol program. At the hearing on the State's motion, appellant pleaded "not true" to the aggravated robbery allegation but pleaded "true" to all of the other allegations. Following the presentation of evidence, the trial court found all of the allegations true.
During the punishment phase, the State asked the trial court to sentence appellant to twenty years. In support of the request, the prosecutor reminded the trial court that appellant had committed aggravated robbery and resumed his drug use while on community supervision. Before sentencing appellant, the trial judge stated, "[o]ne thing that the Prosecutor did fail to mention is the fact that you were an absconder for a year as well." The trial court sentenced appellant to twenty years' confinement. Appellant timely appealed.
Discussion
In his sole point of error, appellant contends that he was denied the right to an impartial judge because the trial court considered evidence outside of the record when assessing his punishment. Specifically, he complains that there was no evidence presented at the adjudication hearing that he had absconded.
A defendant who fails to report to his community supervision officer is considered an absconder. See Parsons v. State, 513 S.W.2d 554, 556 (Tex. Crim. App. 1974) (concluding that trial court's order revoking defendant's probation for, among other things, "absconding supervision," was "an additional way of saying that he did not report 'as directed'"); see also Mena v. State, No. 14-12-00652-CR, 2013 WL 3243367, at *2 (Tex. App.—Houston [14th Dist.] June 25, 2013, no pet.) (mem. op., not designated for publication) (stating that defendant's case was transferred to an "absconder" case file because he failed to report to his probation officer for several months); Donahoe v. State, No. 01-07-00862-CR, 2010 WL 2873694, at *2 (Tex. App.—Houston [1st Dist.] July 22, 2010, no pet.) (mem. op., not designated for publication) ("The trial court stated on the record that it had found that [defendant] was an "absconder"; that is, that [defendant] had not complied with her community supervision conditions by failing to report to her supervising probation officer.") Here, the record reflects that appellant pleaded "true" in open court to the allegation in the State's motion that he failed to report to his community supervision officer in November and December 2014, despite having been ordered to do so by the court. The State also presented documentary evidence of appellant's failure to report on these dates.
We conclude that the record does not show that the trial court considered evidence outside the record when considering appellant's punishment. We overrule appellant's point of error.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Chief Justice Radack and Justices Brown and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).