Adam Rubert Littlepage v. State

• Court: Court of Appeals of Texas
• Decided: September 3, 2014
• Docket: 09-13-00197-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00197-CR ____________________

ADAM RUBERT LITTLEPAGE, Appellant

V.

THE STATE OF TEXAS, Appellee _______________________________________________________ ______________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 11-10942 ________________________________________________________ _____________

MEMORANDUM OPINION

Adam Rubert Littlepage pleaded guilty under a plea agreement to felony

theft. The trial court found the evidence sufficient to find Littlepage guilty, but

deferred further proceedings and placed him on five years of community

supervision and assessed a $500.00 fine. The State subsequently filed a motion to

revoke. Littlepage pleaded “true” to violating two conditions of his community

supervision.

1 In two appellate issues, Littlepage contends the trial court erred in assessing

the maximum sentence without considering the entire range of punishment, and in

assessing a $500 fine in the written judgment in the absence of an oral

pronouncement of a fine at the time of sentencing. We affirm the trial court’s

judgment as modified.

A trial court’s arbitrary refusal to consider the entire range of punishment

constitutes a denial of due process. Ex parte Brown, 158 S.W.3d 449, 454 (Tex.

Crim. App. 2005). In this case, the record does not indicate that Littlepage objected

to his sentence. See Tex. R. App. P. 33.1(a). Even if Littlepage had objected,

absent a clear showing to the contrary, we presume that the trial court was neutral

and detached in sentencing the defendant and that the trial court considered the full

range of punishment. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App.

2006). Littlepage does not argue that the trial court was biased or partial, nor does

he point to any evidence in the appellate record to demonstrate that the trial court

failed to consider the whole range of punishment. And our review of the record

does not indicate that the trial court made comments indicating bias, partiality, or a

failure to consider the entire punishment range. See id. at 645-46.

Furthermore, Littlepage’s sentence is within the statutorily authorized range

of punishment for the charged offense. See Tex. Penal Code Ann. §§ 12.35(a),

2 31.03(a),(b)(2),(e)(4) (West Supp. 2013). 1 Generally, a sentence that is within the

range of punishment established by the Legislature will not be disturbed on appeal.

Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no pet.); see

also Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d). This

includes sentences imposed at the statutory maximum. See Holley v. State, 167

S.W.3d 546, 549-50 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

Littlepage argues that he was punished for drug addiction, and that

punishing a person for being a drug addict constitutes cruel and unusual

punishment in violation of the Eighth and Fourteenth Amendments to the United

States Constitution. The record shows that when his sentence was pronounced,

Littlepage did not make this objection, and therefore he waived this complaint. See

Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex. Crim.

App. 1996) (stating defendant forfeited complaint about his constitutional right to

be free from cruel and unusual punishment by failing to raise objection in the trial

court). To the extent Littlepage argues that the trial court did not consider the

mitigating circumstances Littlepage presented, we note that the record does not

1 Because the amendments to sections 12.35 and 31.03 are not material to this case, we cite to the most recent publication of the respective statutes. 3 reflect that the trial court refused to consider any of the evidence that Littlepage

offered.2 Accordingly, we overrule Littlepage’s first issue.

In his second issue, Littlepage argues the trial court abused its discretion by

assessing a $500 fine against him in the written judgment adjudicating guilt when

there was no pronouncement of the fine in the oral rendition of judgment at the

revocation and adjudication hearing. See Taylor v. State, 131 S.W.3d 497, 502

(Tex. Crim. App. 2004). The State concedes error and asks this Court to affirm the

judgment, but modify it to delete the fine.

The trial court’s oral pronouncement sentenced Littlepage to two years in

state jail and did not assess a fine. The first page of the written judgment reflects

the defendant’s punishment as two years in prison with no amount indicated in the

fine column. The second page of the judgment notes a fine of $500. To the extent

there is a variance between the trial court’s oral pronouncement of judgment and

the written judgment, the oral pronouncement controls. Id. at 500-02 (affirming

court of appeal’s modification of judgment to remove fine assessed in the written

judgment, but not orally pronounced); Ex parte Madding, 70 S.W.3d 131, 135 2 In his appellate brief, Littlepage requested that the “record . . . be amended to allow a supplemental reporter’s record as to all cases which were sentenced at the same date and time as [Littlepage’s sentencing].” He cites no authority to support his request that would, if granted, allow the record to be altered in such a manner. Furthermore, his request would seek to introduce evidence that was not presented to the trial court. See Tex. R. App. P. 38.1(i). 4 (Tex. Crim. App. 2002). As requested by appellant and recommended by the State,

we modify the written judgment to delete the $500 fine and any order to pay it.

We affirm the judgment as modified. See Tex. R. App. P. 43.2(b).

AFFIRMED AS MODIFIED.

_________________________ LEANNE JOHNSON Justice

Submitted on July 7, 2014 Opinion Delivered September 3, 2014 Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.