NO. 12-05-00353-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CLARA FAIZON, § APPEAL FROM THE 159TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Clara Faizon appeals the trial court’s order revoking community supervision. On appeal, Appellant contends that the trial court violated her right to due process and fundamental fairness by failing to consider mitigation evidence of alcohol addiction and that her punishment was disproportionate to the underlying offense and allegations upon revocation. We affirm.
Background
Appellant pleaded guilty to the offense of theft by check of the value of $1,500 or more, but less than $20,000. See Tex. Pen. Code Ann. § 31.03(a), (e)(4)(A) (Vernon Supp. 2005). The trial court sentenced Appellant to two years in a state jail facility, but probated the sentence and placed Appellant on community supervision for four years. See Tex. Pen. Code Ann. § 12.35 (Vernon 2003). The trial court further imposed a $500 fine and ordered Appellant to pay restitution. Appellant was ordered not to violate the terms and conditions of her community supervision that included committing no offense against the laws of this State or of any other State or of the United States; avoiding injurious or vicious habits (including use of narcotics or habit forming drugs and alcoholic beverages); reporting to the supervision officer as directed by the judge or supervision officer on the first day of each month until discharged from community supervision; and paying her fine, costs, supervision fee, reimbursement of appointed counsel, and restitution. The trial court later imposed an additional term of probation requiring Appellant to successfully complete a residential treatment program for substance abuse, participate in and successfully complete an aftercare program, and participate in and successfully complete a treatment alternative to incarceration program.
On August 29, 2005, the State filed a motion to revoke Appellant’s probation, alleging that she violated the rules of her community supervision by intentionally or knowingly committing the offense of theft on May 20, 2005, failing to report to the community supervision officer, failing to make monthly supervision fee payments, failing to make payments for the court costs, fine, and restitution, and failing to attend and successfully complete the treatment alternative to incarceration program. A hearing on the motion to revoke was held on October 5. Appellant pleaded “true” to the first allegation in the motion to revoke, namely that she violated the rules of community supervision by intentionally or knowingly committing the offense of theft on May 20 in Angelina County, Texas. However, Appellant pleaded “not true” to the other allegations. At the conclusion of the hearing, the trial court accepted Appellant’s plea of “true” to the first allegation in the State’s motion. The trial court rejected Appellant’s pleas of “not true” to the other allegations, finding them to be “true.”1 Thus, the trial court revoked Appellant’s community supervision and assessed her punishment at two years in a state jail facility. This appeal followed.
Mitigating Evidence
As part of her sole issue on appeal, Appellant contends that the trial court violated her right to due process and fundamental fairness by failing to consider mitigation evidence relating to her alcohol addiction. The State disagrees, arguing that even if the trial court failed to fully and properly consider Appellant’s mitigating evidence, any error is harmless. It is a denial of due process for the trial court to arbitrarily refuse to consider the entire range of punishment for an offense or to refuse to consider the evidence and impose a predetermined punishment. McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983); Jefferson v. State, 803 S.W.2d 470, 471 (Tex. App.–Dallas 1991, pet. ref’d). However, in order to present a complaint for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). This rule applies to errors of constitutional dimension. Cole v. State, 931 S.W.2d 578, 580 (Tex. App.–Dallas 1995, pet. ref’d). In this case, Appellant did not object to the punishment assessed at the revocation hearing. Therefore, we conclude that Appellant’s failure to object waived any error. See Tex. R. App. P. 33.1; Cole, 931 S.W.2d at 580.
Even if Appellant had not waived her complaint, the trial court did not deny her right to due process or fundamental fairness by imposing the original sentence assessed. In court ordered community supervision, the trial court assesses punishment before it grants community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3(a) (Vernon Supp. 2005); Wiltz v. State, 863 S.W.2d 463, 465 (Tex. Crim. App. 1993); Williams v. State, No. 13-00-751-CR, 2002 WL 229721, at *1 (Tex. App.–Corpus Christi Feb. 14, 2002, no pet.) (not designated for publication). The order granting community supervision suspends the imposition of the sentence until the probationer violates the terms of her community supervision or successfully completes her probationary period. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3(a); Wiltz, 863 S.W.2d at 465. If community supervision is revoked, the trial court may proceed to dispose of the case as if there had been no community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 23(a) (Vernon Supp. 2005). The trial court may impose the sentence originally assessed. Guzman v. State, 923 S.W.2d 792, 799 (Tex. App.–Corpus Christi 1996, no pet.). The trial court may also reduce the term of confinement originally assessed. Tex. Code Crim. Proc. Ann. art. 42.12, § 23(a). Any decision to reduce the defendant’s sentence is left to the sound discretion of the trial court. See Cannon v. State, 537 S.W.2d 31, 32 (Tex. Crim. App. 1976); Williams, 2002 WL 229721, at *1. We review its decision under an abuse of discretion. See Cannon, 537 S.W.2d at 32; Williams, 2002 WL 229721 at *1.
Appellant complains that the trial court failed to consider and properly weigh her mitigating evidence in assessing punishment at the probation revocation hearing. However, Appellant offers no evidence that the trial court did not consider evidence of mitigating circumstances presented during the revocation hearing. In fact, Appellant an Angelina County probation officer testified regarding Appellant’s alcohol addiction, treatment for the addiction, and her health problems likely caused by such addiction. The evidence also indicated that Appellant did not complete an aftercare program after inpatient treatment for alcohol addiction and that she continued to use alcohol, all in violation of the terms of her community supervision. Based upon the record before us, we cannot conclude that the trial court did not consider mitigation evidence or that it abused its discretion in imposing the sentence originally assessed. See Tex. Code Crim. Proc. Ann. art. 42.12, § 23(a); Cannon, 537 S.W.2d at 32; Guzman, 923 S.W.2d at 799. Appellant’s issue as it relates to mitigation evidence is overruled.
Disproportionate Punishment
Appellant also contends in her sole issue that her punishment was disproportionate to her offense. The State argues that Appellant waived this issue because she did not object to the trial court. In order to present a complaint for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). This rule applies to errors of constitutional dimension. Cole, 931 S.W.2d at 580. In this case, Appellant did not object regarding a disproportionate sentence. Therefore, we conclude that Appellant’s failure to object waived any error. See Tex. R. App. P. 33.1; Cole, 931 S.W.2d at 580.
However, even absent waiver, we conclude that Appellant’s sentence was not grossly disproportionate. According to Appellant, her sentence is Cannon, 537 S.W.2d at 32 disproportionate pursuant to the three part test originally set forth in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 292, 103 S. Ct. at 3011. However, application of the Solem test has been modified by Texas courts and the Fifth Circuit Court of Appeals, in light of the Supreme Court’s decision in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), to require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the remaining elements. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v. State, 989 S.W.2d 842, 845-46 (Tex. App.–Texarkana 1999, no pet.).
In determining whether Appellant’s sentence is grossly disproportionate, we are guided by the holding in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980).2 In Rummel, the Supreme Court addressed the proportionality claim of an appellant who had received a mandatory life sentence under a prior version of the Texas habitual offender statute for a conviction for obtaining $120.75 by false pretenses. Id., 445 U.S. at 266, 100 S. Ct. at 1135. The life sentence was imposed because the appellant also had two prior felony convictions–one for fraudulent use of a credit card to obtain $80 worth of goods or services and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 265-66, 100 S. Ct. at 1135-36. After both recognizing the legislative prerogative to classify offenses as felonies and considering the purpose of the habitual offender statute, the court determined that the appellant’s mandatory life sentence did not constitute cruel and unusual punishment. Id., 445 U.S. at 284-85, 100 S. Ct. at 1144-45.
In this case, Appellant was convicted of theft by check of the value of $1,500 or more, but less than $20,000. Tex. Pen. Code Ann. § 31.03(a). The punishment range for such an offense is confinement in a state jail facility for any term of not more than two years or less than 180 days and, in addition, a fine not to exceed $10,000. Id. § 12.35. Appellant’s punishment was assessed at two years of confinement in a state jail facility. As such, Appellant’s offense was as serious, if not more so, than the offenses committed by the appellant in Rummel, while her two year sentence is far less severe than the life sentence upheld by the Supreme Court in Rummel. Thus, it follows that if the sentence in Rummel was not unconstitutionally disproportionate, then neither is the sentence assessed against Appellant. Therefore, because we do not conclude that the threshold test was satisfied, we need not apply the remaining elements of the Solem test. Accordingly, we overrule Appellant’s issue as it relates to the proportionality of her sentence.
Disposition
The judgment of the trial court is affirmed.
JAMES T. WORTHEN
Chief Justice
Opinion delivered July 12, 2006.
Panel consisted of Worthen, C.J. and Griffith, J.
(DO NOT PUBLISH)
[1]
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 12, 2006
NO. 12-05-00353-CR
CLARA FAIZON,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 159th Judicial District Court
of Angelina County, Texas. (Tr.Ct.No. CR-23244)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this Court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be in All Things Affirmed and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J. and Griffith, J.
THE STATE OF TEXAS
M A N D A T E
*********************************************
TO THE 159TH JUDICIAL DISTRICT COURT OF ANGELINA COUNTY, GREETINGS:
Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 12th day of July, 2006, the cause upon appeal to revise or reverse your judgment between
CLARA FAIZON, Appellant
NO. 12-05-00353-CR; Trial Court No. CR-23,244
Opinion by James T. Worthen, Chief Justice.
THE STATE OF TEXAS, Appellee
was determined; and therein our said Court made its order in these words:
“THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this Court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be in All Things Affirmed and that this decision be certified to the court below for observance.”
WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.
WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 200____.
CATHY S. LUSK, CLERK
By:_______________________________
Deputy Clerk
1 Although Appellant pleaded “true” to the first allegation in the motion to revoke, the trial court’s judgment revoking community supervision states that Appellant pleaded “not true” to the motion to revoke. In the judgment, the trial court found that Appellant violated paragraph 1 of her community supervision, i.e., committing no offense against the laws of this State or of any other State or of the United States.
2 The Fifth Circuit has referred to Rummel as a “handy guide” in conducting a proportionality review. See McGruder, 954 F.2d at 317.
[1]J.1 CIVIL - AFFIRMED
Vanilla judgment
Appellant & Sureties to pay costs