WALTER RICHARD FRANKLIN v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

WALTER RICHARD FRANKLIN, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-09-01130-CR

Decided: May 27, 2010

Before Justices O'Neill, Francis, and Murphy

OPINION

Opinion By Justice O'Neill

Walter Richard Franklin appeals from the revocation of his community supervision.   In two points of error, appellant contends he was denied due process because the trial court predetermined the punishment, and the written judgment failed to accurately reflect the conditions of community supervision he was found to have violated.   We affirm the trial court's judgment as modified.

Background

Appellant waived a jury and pleaded guilty to burglary of a building.   See Tex. Penal Code Ann. § 30.02(a) (Vernon 2003).   Appellant also pleaded true to two enhancement paragraphs contained in the indictment.   The trial court assessed punishment at ten years' imprisonment, probated for seven years.   The State later moved to revoke appellant's community supervision, alleging he violated several conditions of his community supervision.   Appellant pleaded true to two of the allegations in a hearing on the motion.   The trial court found the two allegations true, revoked appellant's community supervision, and assessed punishment at ten years' imprisonment.

Predetermined Sentence

In his first point of error, appellant contends he was denied due process when the trial court imposed a predetermined sentence and considered matters not introduced into evidence.   Specifically, appellant asserts that because the trial court asked if six previous motions to revoke had been filed in this case, and because the trial court mentioned other felony convictions when the motion to revoke only alleged a misdemeanor offense, the trial court considered matters other than the evidence presented and the full range of punishment.   The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the record reflects the trial court considered all of the evidence and entire punishment range before assessing the sentence.

Appellant did not complain about the sentence either at the time it was imposed or in a motion 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, record must show appellant made timely request, objection, or motion).   After sentencing, appellant did not object to the sentence, and he did not file a motion for new trial.   Thus, he has not preserved this issue for our review.

Even if appellant had preserved error, however, his argument still fails.   As a general rule, punishment that is assessed within the statutory range for the offense is not unconstitutionally cruel or unusual.  Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd).   In this case, the trial court imposed punishment within the statutory range for a habitual offender.   See Tex. Penal Code Ann. §§ 12.32, 12.42(b), 30.02(c)(2) (Vernon 2003 & Supp.2009).

Moreover, absent a clear showing of bias, a trial court's actions will be presumed to have been correct.  Brumit v. State, 206 S.W.3d 639, 645 (Tex.Crim.App.2006).   In this case, the complained of comments do not reflect bias, partiality, or that the trial judge did not consider the full range of punishment.   During the revocation hearing, the trial judge heard testimony from appellant explaining that he failed to participate in the aftercare residential drug treatment program because he “met a female and relapsed.”   Appellant told the trial judge he had been using cocaine for the past twenty-five years, and admitted he had been given opportunities for drug rehabilitation in the past.   Appellant also said that while he was on community supervision, he committed, and was convicted of, misdemeanor assault.

We conclude nothing shows the trial court did not consider the full range of punishment before imposing the ten-year sentence.   See Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984) (as long as sentence is within proper range of punishment, it will not be disturbed on appeal).   We overrule appellant's first point of error.

Modify Judgment

In his second point of error, appellant contends the trial court's judgment fails to accurately reflect the conditions of community supervision he was found to have violated.   Appellant asks us to modify the judgment to show he was found to have violated conditions (A) and (O).   The State agrees to the modifications of the trial court's judgment as appellant requests.

In its amended motion to revoke, the State alleged appellant violated six conditions of his community supervision.   At the revocation hearing, appellant pleaded true to allegation numbers two and six, conditions (A) and (O).   After the trial judge inquired about the remaining four allegations, the parties agreed those allegations would be abandoned.   The trial court's judgment, however, recites that the court found appellant had violated his community supervision “as set out in the State's original motion to revoke community supervision.”   Thus, the trial court's judgment is incorrect.   We sustain appellant's second point of error.

We modify the trial court's judgment to show appellant violated conditions (A) and (O) of community supervision as set out in the State's amended motion to revoke community supervision.   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).

As modified, we affirm the trial court's judgment.

MICHAEL J. O'NEILL JUSTICE

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