Nos. 05-08-00854-CR, 05-08-00855-CR
Opinion Filed January 5, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F98-51284-QH, F08-50639-PH.
Before Justices BRIDGES, LANG, and LANG-MIERS.
Opinion By Justice LANG.
Florentino Banda Rubio, Jr. appeals following the adjudication of his guilt for two possession with intent to deliver heroin offenses. In five points of error, appellant contends one of the judgments adjudicating guilt is void, the trial court abused its discretion by revoking his probation and proceeding with adjudication of guilt in each case, and the trial court abused its discretion by sentencing him to imprisonment in each case. We affirm the trial court's judgment in the first case, and affirm the trial court's judgment as modified in the second case.
Background
In cause no. 05-08-00854-CR, appellant waived a jury and pleaded guilty to possession with intent to deliver heroin in an amount of one gram or more, but less than four grams. See Tex. Health Safety Code Ann. § 481.112(a), (c) (Vernon Supp. 2009). Appellant also pleaded true to two enhancement paragraphs. Pursuant to a plea bargain agreement, the trial court deferred adjudicating guilt and placed appellant on ten years' community supervision. The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision, including committing a new possession with intent to deliver heroin offense and three technical violations. In a hearing on the motion, appellant pleaded true to all of the allegations. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at twenty-five years' imprisonment. In cause no. 05-08-00855-CR, appellant waived a jury and pleaded guilty to possession with intent to deliver heroin in an amount of four grams or more, but less than 200 grams. See id. § 481.112(a), (d). The trial court assessed punishment at fifteen years' imprisonment. Void Judgment
In his first point of error, appellant contends the judgment adjudicating guilt in cause no. 05-08-00854-CR is void because the motion to adjudicate upon which it was based was withdrawn by the State. Appellant asserts that because the judgment recites he violated conditions of community supervision as set out in the State's "original motion to adjudicate guilt" and there is no motion attached to the judgment, then the judgment is void. The State responds that the trial court's judgment clearly refers to the correct motion to adjudicate guilt. We agree with the State. The State filed a motion to adjudicate on November 27, 2007, alleging four technical violations. That same day, the State filed a motion to withdraw its motion to adjudicate guilt. The trial court granted the motion and modified appellant's conditions of community supervision by detaining him in the county jail for a two-day period. On January 18, 2008, the State filed a motion to adjudicate alleging appellant committed a new offense and three technical violations. As noted above, appellant pleaded true to all of the allegations in a hearing on the motion, and the trial court found the allegations true. The trial court's written judgment adjudicating guilt recites appellant violated the terms and conditions of his community supervision as set out in the State's original motion to adjudicate guilt. The January 18, 2008 motion to adjudicate is included in the record. We conclude that because the November 27, 2007 motion had been withdrawn and was no longer in effect, the January 18, 2008 motion to adjudicate was properly noted as the State's original motion to adjudicate. We overrule appellant's first point of error. Abuse of Discretion
In his second and third points of error, appellant contends the trial court abused its discretion by revoking his community supervision and adjudicating his guilt in cause no. 05-08-00854-CR because the revocation was based upon grounds not alleged in the State's motion, and the State failed to establish appellant was "unable to pay the costs and fees." The State responds that the motion provided adequate notice, and appellant's pleas of true were sufficient to support the adjudication of guilt. We agree with the State. During the June 12, 2008 hearing on the motion to adjudicate, appellant pleaded true to all of the allegations contained in the motion. A plea of true, standing alone, supports revocation of community supervision. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979). Appellant's signed plea of true and stipulation of evidence was admitted into evidence. Although appellant argues on appeal that the motion to adjudicate alleged he committed the offense of "manufacture" rather than "possession with intent to deliver" a controlled substance, he made no objection to lack of notice at the hearing. Allegations in a motion to revoke community supervision need not be alleged with the same particularity required in an indictment, but they must fully and clearly set forth the alleged violations so a defendant might be informed as to what he will be called to defend against. Labelle v. State, 720 S.W.2d 101, 104 (Tex. Crim. App. 1986). The allegations need be only specific enough to provide a defendant with sufficient information so that he may prepare a defense. Id. at 108. The State's January 18, 2008 motion to adjudicate alleged appellant violated a condition of his community supervision by committing a new offense. The new offense appellant was alleged to have violated was described "as alleged in cause number F08-50639-H." Although the particular drug offense listed in the motion to adjudicate was described as "manufacture" rather than "possession with intent to deliver," in all other references the offense was listed correctly. See Tex. Health Safety Code Ann. § 4821.112(a). Appellant, who pleaded guilty to the underlying charge and true to the allegation in the motion to adjudicate, clearly had notice of the allegation against him contained in the State's motion. We conclude the trial court properly adjudicated appellant's guilt based upon grounds alleged in the State's motion and did not abuse its discretion in doing so. See Flournoy v. State, 589 S.W.2d 705, 707 (Tex. Crim. App. 1979). We overrule appellant's second and third points of error. In his fourth and fifth points of error, appellant contends the trial court abused its discretion and violated the objectives of the Texas Penal Code by sentencing him to imprisonment in each case because the sentences were not necessary to prevent a likely recurrence of his criminal behavior and do not meet rehabilitation objectives. The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the record does not support his claim. Appellant 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). After sentencing, appellant did not object to the sentences, and his motions complained that the verdicts were contrary to the law and the evidence. Thus, he has not preserved this issue for our review. Even if appellant had preserved error, however, his arguments still fail. As a general rule, punishment that is assessed within the statutory range for the offense is not excessive or unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). In cause no. 05-08-00854-CR, appellant was sentenced as an habitual felony offender, and the trial court imposed the minimum punishment. See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2009). In cause no. 05-08-00855-CR, the trial court imposed punishment within the statutory range for the offense. See id. § 12.32; Tex. Health Safety Code Ann. § 481.112(d). We conclude the trial court did not abuse its discretion in assessing the twenty-five and fifteen-year sentences. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal). We overrule appellant's fourth and fifth points of error. Modify Judgment
We note the trial court's written judgment in cause no. 05-08-00855-CR contains a $500 fine that was not orally pronounced. See Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) (when a conflict exists between the oral pronouncement and the written judgment, the oral pronouncement controls). We modify the trial court's judgment to delete the $500 fine. 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). Conclusion
In cause no. 05-08-00854-CR, we affirm the trial court's judgment. In cause no. 05-08-00855-CR, we affirm the trial court's judgment as modified.