Opinion
No. 05-05-01437-CR
Opinion Filed November 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-0532235-VU.
Before Justices MORRIS, WHITTINGTON, and RICHTER.
MEMORANDUM OPINION
Appellant Martin Angel Vasquez pleaded guilty to aggravated robbery, and the trial court assessed punishment at thirty years' confinement and a $2500 fine. In one issue, he contends the evidence is legally insufficient to justify the trial court's finding that he failed to take responsibility for his actions. We affirm. On May 10, 2004, Carrie Stines went to a car wash to clean and vacuum her daughter's car. When she finished vacuuming the inside and turned around, appellant and his friend stepped from behind the car. Appellant demanded Stines give him the keys. When she refused, appellant waved a gun at her and said "then I'm not playing." She then handed appellant her keys, and the two men drove off in her vehicle. On May 14, 2004, Officer Robert Proctor observed appellant recklessly driving a car around the parking lot of Kimball High School. When he pulled appellant over and ran the license plate, he discovered it was the car Stines had reported stolen. The officer then arrested appellant. Appellant pleaded guilty to aggravated robbery, and the trial court assessed punishment after hearing testimony from Stines, several officers, appellant's parents, and appellant. In his testimony, appellant admitted that he committed the crime and was the one who made that choice. He testified that he decided to plead out because he "wanted to accept responsibility for what I did. I know what I did was a terrible crime. I wanted to take responsibility for what I have done." However, during cross-examination the State repeatedly established that appellant was not telling the truth. For example, he claimed he did not know his girlfriend's last name even though he dated her for over a year. Then he later denied they were dating. He also testified he could not remember how long he had a gun in his possession before the May 10th offense; however, he later stated he only had a gun on that particular day. The trial court reminded appellant of the need to be truthful. The trial judge specifically stated, "When you came in front of me and you pled guilty I told you the worst thing you can do is lie. . . . I'm just going to remind you of that." During closing argument, the State asserted "What has come through here, Judge, is that he is not able to accept responsibility, not able to tell the truth." Prior to assessing punishment, the trial judge stated the following:
Mr. Vasquez, I told you and you were not telling the truth. Don't say anything. You are not telling me the truth and I knew that. I know it's difficult to tell the truth sometimes when you are put in the situation. That tells a lot about someone's character and how much responsibility they're willing to take for what they've done.
What you did was an awful thing. You have changed her life forever. I feel very bad for your family and this is not something that I am doing to you. This is something that you have done to yourself.
You pick up a gun case while you're on probation or — pick up a gun case along with this aggravated robbery. You think that would have taught you something. Based on the evidence presented the Court sentences you to 30 years in the penitentiary, 2500 fine.Appellant argues the italicized language constitutes a "finding" by the court that he failed to take responsibility for his actions and forms the basis for the thirty-year sentence. He claims this "finding" is subject to our review, and the evidence is legally insufficient to support it. In making this claim, he relies on his testimony that on more than one occasion he took responsibility for his actions. The State asserts we have no authority to conduct a legal sufficiency review of punishment assessed by a trial court in a non-capital case. Regardless of whether it is proper to review the legal sufficiency of the evidence presented during punishment of a non-capital case, appellant is incorrect in asserting that the trial court made a "finding" that he failed to take responsibility for his actions. Appellant points to nothing and we have found nothing supporting his contention that the judge's statement is subject to our review. The challenged statement is not a "finding," but rather reflects the trial court's opinion regarding the evidence. See, e.g., Shpikula v. State, 68 S.W.3d 212, 225 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (noting that trial court statement of "I just wish you would have stepped up here and said: Gosh, I made a mistake . . and showed some responsibility" was an opinion on the evidence). During sentencing, judges often make such comments; however, they are not findings that are subject to our review. Moreover, a sentence within the proper range of punishment normally will not be disturbed on appeal. See Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984) (holding that as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal). Appellant's thirty-year sentence is within the appropriate range for a first degree felony. Tex. Pen. Code Ann. § 12.32 (Vernon 2003). To the extent appellant's argument can be construed as a complaint the trial judge was biased, appellant did not object to the trial judge's statement, nor does he point to any evidence in the record that the trial judge was biased or otherwise acted improperly. In fact, the trial judge specifically stated that "based on the evidence," she was assessing punishment at thirty years' confinement. Further, appellant is not contending his sentence is excessive or otherwise inappropriate, as noted by his abandonment of this issue during oral argument. Accordingly, we overrule appellant's sole issue and affirm the trial court's judgment.
In his opening brief, appellant also argued the trial court erred in denying his motion for new trial and the thirty-year sentence was grossly disproportionate to the crime. He abandoned these issues in oral argument; therefore, we only address his sufficiency challenge.