Opinion issued October 23, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00627-CR
JOHN WILLIAM RATLIFFE, Appellant
v.
STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 0981674
MEMORANDUM OPINION
After he pleaded guilty to sexual assault of a child, the trial court placed appellant, John William Ratliffe, on deferred adjudication community supervision. Appellant later pleaded “true” to the allegations contained in the State’s motion to adjudicate. The trial court revoked appellant’s community supervision, found him guilty, and sentenced him to five years in prison.
In one point of error, appellant contends that the trial court abused its discretion by assessing a five-year sentence.
We affirm.
Background
The State charged appellant with the offense of sexual assault. The indictment averred that appellant sexually assaulted 15-year-old A.M. “by placing his sexual organ in [her] female sexual organ.” Appellant pleaded guilty to the charge. The trial court deferred adjudication of appellant’s guilt, placed him on community supervision for two years, and required him to serve 40 days in jail.
The State later filed a motion to adjudicate appellant’s guilt, alleging that appellant violated the terms of his community supervision by using cocaine and marihuana, by failing to submit to drug testing on certain dates, by failing to pay certain fees, by failing to attend sex offender treatment on certain dates, and by having “contact” with his minor niece. Appellant pleaded “true” to the State’s allegations. Before accepting his plea, the trial court explained to appellant that the sentence range for sexual assault was between two and twenty years in prison. Appellant indicated that he understood.
At the adjudication hearing, the trial court also heard the testimony of several defense witnesses. The defense presented the testimony of appellant’s sex offender therapist, who testified that it was “unlikely” that appellant would re-offend if again placed on community supervision. She further testified that she did not consider appellant to be a threat to the community.
Appellant also presented the testimony of his brother, his mother, and himself to explain the circumstances under which he had “contact” with his four-year-old niece in violation of the community supervision terms. The witnesses explained that appellant, his brother, and his brother’s daughter (appellant’s four-year-old niece) had attended an impromptu family birthday celebration at a restaurant. The witnesses further explained that the contact between the niece and appellant was temporally and physically brief. The defense characterized the contact as being incidental.
The witnesses also testified about the circumstances surrounding a photograph taken at the birthday party. The photograph, which appellant’s brother had published on the internet, showed the niece sitting on appellant’s shoulders with appellant’s brother standing behind appellant holding the niece by the waist.
The witnesses explained that the photograph had been taken at the request of appellant’s mother and that it was the brother’s idea to put the niece on appellant’s shoulders. Appellant’s brother testified that he had placed the photograph on his internet website because he did not believe it showed anything inappropriate. The family members stated that each knew that appellant was ordered not to have contact with minors. However, each intimated that, because the contact with the niece was limited and spontaneous, it was innocuous and not the type of contact targeted by the terms of appellant’s community supervision. Appellant’s mother and brother also testified that the family would support appellant and that they felt he was not likely to re-offend.
At the conclusion of the adjudication hearing, the trial court found appellant guilty of sexual assault, revoked his community supervision, and sentenced him to five years in prison.
Analysis
In one point of error, appellant contends that the trial court abused its discretion by imposing a five-year sentence. Appellant asserts that such sentence is excessive “for having your picture taken with your niece’s legs touching your shoulders at an impromptu family luncheon.” Appellant also relies on the testimony of his mother and brother as detailed above and his counselor’s testimony that he is not likely to re-offend. Appellant further contends that, during closing argument, “even the State’s prosecutor argued that this particular incident was casual and seemed incidental and harmless enough.”
Appellant’s challenge to his sentence is without merit. First, appellant failed to make the objection in the trial court that he now raises on appeal. See Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (“As a general rule, an appellant may not assert error pertaining to his sentence or punishment where he failed to object or otherwise raise such error in the trial court.”); Jacoby v. State, 227 S.W.3d 128, 130 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (concluding failing to specifically object to alleged disproportionate sentence in trial court or in post-trial motion waives any error for appeal). Although he filed a motion for new trial, appellant did not specifically object to the excessiveness of his sentence on the grounds that he now raises on appeal. Thus, nothing is preserved for our review. See Tex. R. App. P. 33.1(a).
Even if we construe his motion for new trial to preserve error, appellant’s argument nonetheless fails. Appellant’s assertion that he was sentenced to five years in prison for the contact he had with his niece is incorrect. The trial court’s judgment reflects that the court assessed punishment only for the underlying offense for which appellant was charged and found guilty: sexual assault of A.M. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2008) (providing that, on determination by court to proceed with an adjudication of guilt, all proceedings, including assessment of punishment, continue as if the adjudication of guilt had not been deferred).
In any event, appellant’s contact with his niece was not the only community supervision violation to which he pleaded true. Appellant also admitted to violating the terms of his community supervision by using cocaine and marihuana, by failing to attend all of his sex offender treatment, by failing to complete all required drug testing, and by failing to pay all required fees. The trial court also had this information before it when it assessed appellant’s punishment.
In addition, when a defendant is first placed on deferred adjudication community supervision and then later adjudicated guilty, the trial court is not prohibited from assessing a longer sentence upon the adjudication of guilt than was assessed when the adjudication of guilt was first deferred. Ditto v. State, 988 S .W.2d 236, 239–40 (Tex. Crim. App. 1999). Article 42.12, section 5(b) provides that, once guilt is adjudicated, the case then proceeds as though adjudication of guilt was never deferred. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b). Thus, once his guilt is adjudicated, a defendant is subject to the entire range of punishment for the offense. Ditto, 988 S.W.2d at 238–39. Moreover, the decision whether to place a defendant on community supervision rests completely within the trial court’s discretion pursuant to the Code of Criminal Procedure’s guidelines; no authority exists requiring that a defendant receive such clemency. See Rodriguez v. State, 502 S.W.2d 13, 14 (Tex. Crim. App. 1973).
Furthermore, assessment of punishment within the statutory range provided by the legislature will not typically be an abuse of discretion. See Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984); Baldridge v. State, 77 S.W.3d 890, 893-94 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d.). Sexual assault is a second degree felony, and the range of punishment is confinement for a term of not more than twenty and not less than two years. Tex. Penal Code Ann. § 12.33(a) (Vernon 2003), § 22.011(f) (Vernon 2003). The punishment assessed by the trial court—confinement for five years—is not only well within the range of punishment established by the legislature for a person convicted of a second degree felony, it is on the lower end of the range.
We conclude that the record does not support appellant’s contentions regarding his punishment. We hold that the trial court properly exercised its discretion by sentencing appellant to five years in prison.
We overrule appellant’s sole point of error.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.
Do not publish. See Tex. R. App. P. 47.2(b).