No. 05-09-00915-CR
Opinion Filed April 13, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-74029-TU.
Before Justices RICHTER, LANG-MIERS, and MURPHY.
Opinion By Justice RICHTER.
Appellant pled guilty to the offense of burglary of a habitation and true to an enhancement paragraph alleging a prior felony conviction. The trial court sentenced appellant to ten years' imprisonment, suspended for eight years, and assessed a $200 fine. The trial court subsequently revoked appellant's probation and sentenced him to eight years' imprisonment. In his sole issue on appeal, appellant contends the trial court denied him due process of law when it assessed a greater punishment because he denied commission of the offense. Concluding appellant's argument is without merit, we affirm the trial court's judgment.
Background
In May 2001, appellant was indicted for the offense of burglary of a habitation, enhanced with a prior felony conviction. Appellant pled guilty to the offense and true to the enhancement allegation. Appellant's written confession and written plea of true were admitted into evidence. Pursuant to a written plea agreement, the trial court found appellant guilty and assessed punishment at ten years' imprisonment, probated for eight years, and a $200 fine. In January 2008, the State filed a motion to revoke community supervision, alleging that appellant failed to report to his probation officer, failed to complete his community service, failed to pay court and probation fees, and failed to pay restitution. Appellant pled true to the allegations in the State's motion. The court conducted a revocation hearing. During the hearing, appellant denied committing the burglary of a habitation and claimed he pled guilty because his trial attorney told him he had to go back to jail to get a court appointed attorney. At the conclusion of the hearing, the court accepted appellant's plea of true, granted the State's motion, and found appellant guilty. When assessing punishment at eight years' imprisonment, the trial judge told appellant, "I was going to give you six years until you denied the offense." Discussion
Appellant contends the trial court's assessment of punishment violated his due process rights under the Fourteenth Amendment. Specifically, appellant argues he had a constitutional right to plead not guilty to the charged offense and the trial judge increased his punishment because he denied committing the offense to which he previously pled guilty. The State responds that appellant was not denied due process and the trial court was entitled to consider appellant's truthfulness when determining his sentence. We agree with the State. We note at the outset that the contemporaneous objection rule applies even to due process violations. See Hull v. State, 67 S.W.3d 215, 217-18 (Tex. Crim. App. 2002); Tex. R. App. P. 33.1(a). Appellant did not object to the sentence, nor did he raise his due process concerns in his motion for new trial. However, we need not decide whether error was preserved because the record does not reflect that appellant was denied due process of law. A defendant has the right to enter a plea of not guilty. See Mendez v. State, 138 S.W.3d 334, 344 (Tex. Crim. App. 2004). Here, however, appellant waived that right when he entered a plea bargain and pled guilty in exchange for ten years in prison, probated for eight years, and a $200 fine. Appellant denied the commission of the offense during his testimony at the revocation hearing seven years later. This denial, however, does not equate to a pursuit of the right to plead not guilty, nor does the trial court's assessment of appellant's credibility constitute a denial of that right. In assessing punishment, a trial judge is entitled to consider a defendant's truthfulness as he testifies. United States v. Grayson, 438 U.S. 41, 53 (1978); Wilson v. State, 810 S.W.2d 807, 810 (Tex. App.-Houston [1st Dist.] 1991, no pet.). It is necessary and proper for a trial judge to consider a defendant's whole person and personality, as manifested by his conduct at trial and testimony under oath, for whatever light such conduct may shed on the judge's sentencing. Grayson, 438 U.S. at 53. Accordingly, we conclude appellant's due process rights were not violated and overrule his sole issue on appeal. The trial court's judgment is affirmed.