dissenting.
In the appeal of the judgment in cause number 09-7890, appellant’s counsel argues that a ninety-nine year sentence for a seventeen-year-old, who committed the offense when he was fifteen, is cruel and unusual punishment. Counsel states that the United States Supreme Court recently held it unconstitutional “to sentence a juvenile in a non-homicide case to a sentence that could not be discharged in his lifetime.” In Graham v. Florida, the Supreme Court reasoned:
Roper established that because juveniles have lessened culpability they are less deserving of the most severe punishments. [Roper v. Simmons, 543 U.S. 551, 569,] 125 S.Ct. 1183, 161 L.Ed.2d 1. As compared to adults, juveniles have a ‘“lack of maturity and an underdeveloped sense of responsibility’ they “are more vulnerable or susceptible to negative influences and outside pressures, *442including peer pressure”; and their characters are “not as well formed.” Id., at 569-570, 125 S.Ct. 1183, 161 L.Ed.2d 1. These salient characteristics mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id., at 573, 125 S.Ct. 1183, 161 L.Ed.2d 1. Accordingly, “juvenile offenders cannot with reliability be classified among the worst offenders.” Id., at 569, 125 S.Ct. 1183, 161 L.Ed.2d 1. A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson [v. Oklahoma], supra, [487 U.S. 815] at 835, 108 S.Ct. 2687, 101 L.Ed.2d 702 [ (1988) ] (plurality opinion).
560 U.S. 48, 68, 130 S.Ct. 2011, 2026, 176 L.Ed.2d 825 (2010). The State responds that “the probability of parole makes these circumstances different from Graham.” The Supreme Court also noted in Graham that “[t]hose who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives.” Id. at 2030. Although the State argues that the facts justify the sentence, the State acknowledges it “cannot disagree that holding a human being to what amounts to life in prison for horrendously bad decisions made at age fifteen is an ethically and morally monumental burden, not to be undertaken without serious consideration.”
The law provides that, after an adjudication of guilt, “all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.” Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp.2011); see Pearson v. State, 994 S.W.2d 176, 178 (Tex.Crim.App.1999); Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App.1992). In this case, sentencing occurred immediately after revocation, as follows:
Cause No. 7890, I find the evidence to be sufficient to find Counts 2, 3, 4, and 6 to be true. They are true. I hereby revoke your unadjudicated probation. I now find you guilty of the offense of aggravated robbery. I assess your punishment at 99 years’ confinement in the Institutional Division. You’ll get credit for whatever time that you’re entitled to by law.
Defense counsel filed a motion for new trial noting that the sentence was “unreasonable and without consideration of existing verifiable facts[.]” Defense counsel also filed a motion for reconsideration of the imposition of sentence, asked for a hearing and opportunity to present evidence, and requested that defendant be placed on community supervision. Appellant argues that “[biased upon the age of the defendant and matters set out in the motion for new trial and motion for reconsideration of imposition of sentence, and the manifest injustice of the harsh sentence, the decision of the trial court was contrary to the law and evidence, and therefore the trial court should have granted the motion for new trial.”
This Court does not have any reporter’s record on appeal other than of the last hearing, and appellant complains of the incomplete record. Appellant argues that denying him the entire record prevents him from reviewing whether the sentence was impermissibly predetermined when the plea was entered. See Steadman v. State, 31 S.W.3d 738, 741 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (“It is a denial of due process for the court to *443arbitrarily refuse to consider the entire range of punishment for an offense or refuse to consider the evidence and impose a predetermined punishment.”); Jefferson v. State, 803 S.W.2d 470, 471 (Tex.App.Dallas 1991, pet. ref'd). The State responds that “[w]hile counsel’s inability to ascertain whether the trial court took some action or made a remark that would provide a challenge could be remedied by providing the requested records, the trial court has opted not to do so.” This Court should order the filing of the complete record and allow the parties to provide supplemental briefs after a review of the record.
At the plea hearing, the trial judge apparently thought the appropriate resolution at that time was community supervision, because the judge deferred adjudication and placed appellant on community supervision. Appellant subsequently obtained his high school diploma after he completed the up-front time. At the revocation hearing, the probation officer and defense counsel mentioned the SAFPF program. Defense counsel stated “We would ask the Court, Your Honor, to send Mr. Diamond to SAFPF and all of the aftercare programs that are available, and give him an opportunity, Your Honor, to kick his dependence upon marijuana.” The probation officer said “[wje’ve tried to get him into different programs for him for anger management — I think he attended that once— and J.C.D.I. I[t] took me about three appointments to get him into that. Only thing I would recommend, if he is continued on probation, is to keep him locked up for SAFPF.”
The Supreme Court has noted that “[f]ew, perhaps no, judicial responsibilities are more difficult than sentencing.” See Graham, 130 S.Ct. at 2031. In rejecting a sentence of life without parole for juvenile nonhomicide offenders, the Court questioned whether “a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.” Id. at 2032. Ninety-nine years is not a sentence of life without parole, but similar sentencing difficulties and considerations are present in this case. Appellant should be granted a complete record for review, and if then shown to be necessary, another hearing before the trial court at which the State and the defense can present evidence concerning an appropriate disposition.