TYRELL JACKSON APPELLANT v. THE STATE OF TEXAS STATE (2010)

MEMORANDUM OPINION1

I. Introduction

In two points, Appellant Tyrell A. Jackson appeals his sentence for aggravated assault with a deadly weapon.   We affirm.

II. Factual and Procedural Background

On June 22, 2007, Jackson pleaded guilty to aggravated assault with a deadly weapon in exchange for ten years' deferred adjudication community supervision, a $500 fine, and other conditions.   At the July 17, 2009 hearing on the State's first amended petition to proceed to adjudication, Jackson pleaded true to the allegations contained within paragraphs 2, 4A, 4B, 5A, 5B, 6, 8A, and 8B.² Jackson's community supervision officer testified that Jackson failed to attend fee docket but also that Jackson went to court on April 7, 2009, was told that he needed to make a payment, and paid some money that day.   Jackson testified that on April 7, 2009, he left court and made a $150 payment.   When he returned to court, no one called his name so he “took it upon [him]self to leave” because he did not know what he was supposed to do.   He attributed missing the three days of his Intensive Day Treatment Aftercare and missing his urine test to car trouble, his failure to report in January and May 2008 to homelessness, and his failure to make his supervision and crime stoppers fee payments to unemployment.

The trial court found the allegations in paragraphs 2, 4A, 4B, 5A, 5B, 6, 7,³ 8A, and 8B to be true and adjudicated Jackson guilty of aggravated assault with a deadly weapon.   It found the deadly weapon allegation to be true and assessed punishment at fourteen years' confinement.   The trial court subsequently added a special finding on reparations, in the amount of $3,291.50,⁴ to the written judgment entered on July 24, 2009.   This appeal followed.

III. Punishment

In his first point, Jackson complains that his fourteen-year sentence “for marginal technical violations of probation was an abuse of the trial court's discretion, disproportional[,] and in violation of the 8[th] Amendment ․ prohibition of cruel and unusual punishment.”

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion.  Tex.R.App. P. 33.1(a)(1);  Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999).   Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule.   Tex.R.App. P. 33.1(a)(2);  Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App.2004).   When an appellant fails to object that his sentence is disproportionate either at the time it is imposed or in a motion for new trial, nothing is preserved for our review.  Kim v. State, 283 S.W.3d 473, 475 (Tex.App.-Fort Worth 2009, pet. ref'd);  see also Mercado v. State, 718 S.W.2d 291, 296 (Tex.Crim.App.1986) (stating that, as a general rule, appellant may not assert error pertaining to his sentence or punishment when he failed to object or otherwise raise such error in the trial court);  Noland v. State, 264 S.W.3d 144, 151-52 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd) (holding that when appellant failed to object to his sentence at the punishment hearing or to complain about it in his motion for new trial, he failed to preserve his Eighth Amendment complaint that the punishment assessed was “grossly disproportionate and oppressive”);  Wynn v. State, 219 S.W.3d 54, 61 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (holding that defendant's failure to object to his sentence of life imprisonment as cruel and unusual punishment waived error).

Jackson's complaint about the alleged disproportionality of his sentence was not raised at the time it was imposed or in his motion for new trial.⁵  Therefore, he has preserved nothing for our review.   See Kim, 283 S.W.3d at 475;  Noland, 264 S.W.3d at 151-52.   We overrule Jackson's first point.⁶

IV. Reparations

In his second point, Jackson complains that the trial court should have made a determination of his ability to pay before adding reparations of $3,291.50 to the written judgment.

Section 2(b) of article 42.03 of the code of criminal procedure states that “[i]n all revocations of a suspension of the imposition of a sentence the judge shall enter the restitution or reparation due and owing on the date of the revocation.”  Tex.Code Crim. Proc. Ann. art. 42.03, § 2(b) (Vernon Supp.2009).   Section 11(a)(11) of article 42.12 states that conditions of community supervision may include conditions that the defendant shall “reimburse the county in which the prosecution was instituted for compensation paid to appointed counsel for defending the defendant in the case, if counsel was appointed[.]”  Tex.Code Crim. Proc. Ann. art. 42.12, § 11(a)(11) (Vernon Supp.2009);  see also id. § 5(a) (Vernon Supp.2009) (stating that for deferred adjudication community supervision, “[t]he judge may ․ require any reasonable conditions of community supervision ․ that a judge could impose on a defendant placed on community supervision for a conviction that was probated and suspended, including confinement.”).   Other basic conditions of community supervision include paying a fine (if assessed), all court costs, and a crime stoppers fee.   See id. § 11(a)(8), (21).   In assessing payments as a term or condition of community supervision, the trial court “shall consider the ability of the defendant to make payments.”   Id. § 11(b).

Jackson's community supervision conditions required him to pay a monthly supervision fee, a crime stoppers fee, a fine, court costs, and attorney's fees.   See id. §§ 5(a), 11(a)(11).   There is no indication in the record that the trial court failed to consider his ability to pay at the time that it imposed these conditions.   See id. § 11(b).  And upon revoking Jackson's community supervision, the trial court had no choice but to enter the amount of reparation due and owing when it signed the written judgment.   See Tex.Code Crim. Proc. Ann. art. 42.03, § 2(b);  see also Brown v. State, No. 02-08-00063-CR, 2009 WL 1905231, at *2 (Tex.App.-Fort Worth July 2, 2009, no pet.) (mem. op., not designated for publication) (holding that because reparations are not punishment and part of the sentence, they do not have to be included in the trial court's oral pronouncement of sentence to be properly included in the written judgment).   We overrule Jackson's second point.

V. Conclusion

Having overruled both of Jackson's points, we affirm the trial court's judgment.

DO NOT PUBLISH

Tex.R.App. P. 47.2(b)

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN2. That is, that Jackson:2.  Failed to attend Fee Docket by leaving the District 371st Courtroom prior to being released by the Court on or about April 7, 2009.4A. Failed to attend Intensive Day Treatment Aftercare, on or about November 24, 2008;  December 11, 2008;  and December 17, 2008.4B. Was unsuccessfully discharged from Intensive Day Treatment Aftercare on or about December 18, 2008, because he violated condition 4A.5A. Failed to submit a urine sample for testing on or about November 10, 2008.5B. Submitted a diluted urine sample on or about December 29, 2008.6. Failed to report as scheduled by his community supervision officer during January and May 2008.8A. Failed to pay his $60/month supervision fee in July, September, and December 2007;  in all but two months (May, December) in 2008;  and January, March, and May 2009.8B. Failed to pay his $20 crime stoppers fee within thirty days from the date of community supervision..  FN2. That is, that Jackson:2.  Failed to attend Fee Docket by leaving the District 371st Courtroom prior to being released by the Court on or about April 7, 2009.4A. Failed to attend Intensive Day Treatment Aftercare, on or about November 24, 2008;  December 11, 2008;  and December 17, 2008.4B. Was unsuccessfully discharged from Intensive Day Treatment Aftercare on or about December 18, 2008, because he violated condition 4A.5A. Failed to submit a urine sample for testing on or about November 10, 2008.5B. Submitted a diluted urine sample on or about December 29, 2008.6. Failed to report as scheduled by his community supervision officer during January and May 2008.8A. Failed to pay his $60/month supervision fee in July, September, and December 2007;  in all but two months (May, December) in 2008;  and January, March, and May 2009.8B. Failed to pay his $20 crime stoppers fee within thirty days from the date of community supervision.

FN3. Paragraph 7 alleged that on or about April 8, 2009, Jackson failed to remain in Tarrant County and moved to Irving, Texas, without authorization from the court or his community supervision officer.   Jackson's community supervision officer testified that he told her that he had moved to Irving, Texas.   Jackson said that he lied about moving to Irving because he needed to give his community supervision officer an address and his mother would not let him use hers..  FN3. Paragraph 7 alleged that on or about April 8, 2009, Jackson failed to remain in Tarrant County and moved to Irving, Texas, without authorization from the court or his community supervision officer.   Jackson's community supervision officer testified that he told her that he had moved to Irving, Texas.   Jackson said that he lied about moving to Irving because he needed to give his community supervision officer an address and his mother would not let him use hers.

FN4. A report from the Tarrant County Community Supervision and Corrections Department in the trial court's file stated that, as of July 23, 2009, Jackson's probation fees, fines, court costs, and attorney's fees amounted to $3,291.50..  FN4. A report from the Tarrant County Community Supervision and Corrections Department in the trial court's file stated that, as of July 23, 2009, Jackson's probation fees, fines, court costs, and attorney's fees amounted to $3,291.50.

FN5. Jackson filed a motion for new trial, complaining that the verdict was contrary to the law and evidence and alleging the discovery of new evidence favorable to him since trial.   The motion does not appear to have been presented to the trial court, it was not ruled upon, and it does not raise his Eighth Amendment complaint..  FN5. Jackson filed a motion for new trial, complaining that the verdict was contrary to the law and evidence and alleging the discovery of new evidence favorable to him since trial.   The motion does not appear to have been presented to the trial court, it was not ruled upon, and it does not raise his Eighth Amendment complaint.

FN6. Further, punishment imposed within statutory limits is generally not subject to challenge for excessiveness.   See Kim, 283 S.W.3d at 475.   Jackson was warned that he faced the full range of punishment for the original offense-two to twenty years' confinement and up to a $10,000 fine-if the trial court revoked his deferred adjudication community supervision.   See Tex. Penal Code Ann. §§ 12.33, 22.02(b) (Vernon Supp.2009)..  FN6. Further, punishment imposed within statutory limits is generally not subject to challenge for excessiveness.   See Kim, 283 S.W.3d at 475.   Jackson was warned that he faced the full range of punishment for the original offense-two to twenty years' confinement and up to a $10,000 fine-if the trial court revoked his deferred adjudication community supervision.   See Tex. Penal Code Ann. §§ 12.33, 22.02(b) (Vernon Supp.2009).

PER CURIAM