Beth Ellen Davidson A/K/A Beth Ellen Robb v. State

• Court: Court of Appeals of Texas
• Decided: January 30, 2013
• Docket: 09-11-00660-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________

NO. 09-11-00660-CR NO. 09-11-00661-CR ____________________

BETH ELLEN DAVIDSON A/K/A BETH ELLEN ROBB, Appellant

V.

THE STATE OF TEXAS, Appellee

_____________________________________________________________________ _

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause Nos. 10-09715, 11-10842 ________________________________________________________________________

MEMORANDUM OPINION

In carrying out plea agreements, Beth Ellen Davidson a/k/a Beth Ellen Robb, pled

guilty to possession of a controlled substance, a third degree felony, and to delivery of a

controlled substance, a state jail felony. 1 See Tex. Health & Safety Code Ann. §§

481.104, 481.114(b), 481.117(c) (West 2010). The trial court found Davidson guilty,

pronounced her sentences, suspended the sentences, and placed her on community

1 Each of these cases has been appealed separately; but because both cases present similar reporter’s records and arguments, we resolve both appeals in this opinion.

1 supervision. Subsequently, in each case, the State asked that the trial judge revoke its

order placing Davidson on community supervision. After finding in a hearing that

Davidson violated the terms of her placement, the trial court revoked both of its

community supervision orders.

Davidson appealed, and she raises the same three issues in each of her appeals. In

issue one, Davidson contends that she was denied due process because the trial court

predetermined her sentences. In issue two, Davidson asserts the trial court denied her a

fair and impartial forum at the punishment hearing. In her third issue, Davidson argues

that each of the sentences the trial court imposed on her constitutes a cruel and unusual

punishment. In each of Davidson’s appeals, we conclude that Davidson failed to preserve

her issues for appellate review. We affirm the trial court’s judgments.

The trial court placed Davidson on community supervision based on plea

agreements that Davidson made with the State. After Davidson pled guilty to possessing

a controlled substance, the trial court sentenced Davidson to ten years in prison,

suspended her sentence, placed her on community supervision for ten years, and ordered

her to pay a $1,000 fine. After Davidson pled guilty to delivery of a controlled substance,

the trial court sentenced Davidson to two years in state jail, suspended her sentence,

placed her on community supervision for five years, and ordered her to pay a $500 fine.

Subsequently, the State filed motions to revoke the community supervision orders.

Each respective motion alleges that Davidson violated the terms of her community

2 supervision order by committing an additional offense and by using or possessing a drug.

Davidson’s pleas in response to the State’s motions to revoke were heard in one hearing,

and during the hearing, Davidson pled “true” to the allegation that in April 2011 she had

amphetamines in her system, but she pled “untrue” to having committed an additional

offense while on community supervision. Several weeks later, the trial court conducted a

joint evidentiary hearing on the State’s motions to revoke. After hearing the evidence,

and based on the allegations in the State’s motions, the trial court found that Davidson

had violated the community supervision orders and revoked the community supervision

order in each case. At the conclusion of the hearing, the trial court imposed a ten-year

prison sentence in the possession case and imposed a two-year state jail sentence in the

delivery case.

In her brief, Davidson has combined the arguments on her first two issues, both of

which concern Davidson’s punishment hearing. However, the record shows that during

the hearing, Davidson never objected to the punishment the trial court pronounced;

following the hearing, the record further reflects that Davidson did not file a motion for

new trial. Because Davidson did not raise her complaints in the trial court, she failed to

preserve these issues for our review. See Tex. R. App. P. 33.1(a)(1); Rogers v. State, 640

S.W.2d 248, 264 (Tex. Crim. App. 1982) (second op. on reh’g) (“It is a general rule that

appellate courts will not consider any error which counsel for accused could have called,

but did not call, to the attention of the trial court at the time when such error could have

3 been avoided or corrected by the trial court.”); Teixeira v. State, 89 S.W.3d 190, 192

(Tex. App.—Texarkana 2002, pet. ref’d) (failing to raise timely objection waived

complaint that trial court failed to consider entire range of punishment); Cole v. State,

931 S.W.2d 578, 579-80 (Tex. App.—Dallas 1995, pet. ref’d) (holding that complaint

regarding whether trial court predetermined defendant’s sentence was waived when

defendant failed to object to the trial court’s action).

Additionally, the record shows that at Davidson’s initial sentencing hearing,

before she was placed on community supervision, Davidson did not complain that she

had been denied due process. Following the sentencing proceeding, Davidson did not file

an appeal. Davidson may not, after being sentenced and having her sentences suspended,

wait until she violates the community supervision order to appeal her sentences. A

“defendant placed on ‘regular’ community supervision may raise issues relating to the

conviction . . . only in appeals taken when community supervision is originally imposed.”

Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999); see Tex. Code Crim.

Proc. Ann. art. 42.12 § 23(b) (West Supp. 2012) (“The right of the defendant to appeal

for a review of the conviction and punishment, as provided by law, shall be accorded the

defendant at the time he is placed on community supervision.”).

Nor do Davidson’s complaints that the trial court predetermined her ten and two

year sentences have any merit. The trial court placed Davidson on court-ordered

community supervision after pronouncing her guilty of the two crimes at issue. In court-

4 ordered community supervision cases, the trial court assesses punishment before it grants

community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 § 3(a) (West Supp.

2012). The order granting community supervision suspends the imposition of the

sentence until the defendant violates the terms of the trial court’s community supervision

order or the defendant successfully completes the supervision period. See Wiltz v. State,

863 S.W.2d 463, 465 (Tex. Crim. App. 1993); see also Tex. Code Crim. Proc. Ann. art.

42.12 § 3(a). If placed on community supervision, and if the community supervision

order is revoked after the trial court finds the defendant guilty and pronounces sentence,

the trial court may dispose of the case as if there had been no community supervision.

Tex. Code Crim. Proc. Ann. art. 42.12 § 23(a) (West Supp. 2012). Given the procedural

history of this case, the trial court did not err by imposing the sentences it originally

assessed. Guzman v. State, 923 S.W.2d 792, 799 (Tex. App.—Corpus Christi 1996, no

pet.).

While in a traditional probation case the trial court may choose to reduce the term

of confinement that it originally assessed, that decision is left to the trial court’s sound

discretion. Tex. Code Crim. Proc. Ann. art. 42.12 § 23(a); Cannon v. State, 537 S.W.2d

31, 32 (Tex. Crim. App. 1976). The record does not show the trial court abused its

discretion by deciding not to reduce Davidson’s sentences.

To support her arguments on appeal, Davidson relies on Howard v. State, 830

S.W.2d 785 (Tex. App.—San Antonio 1992, pet. ref’d), and Jefferson v. State, 803

5 S.W.2d 470 (Tex. App.—Dallas 1991, pet. ref’d). Unlike this case, the two cases on

which Davidson relies involved defendants who received deferred adjudication. In

Howard and Jefferson, the trial court deferred pronouncing the defendants’ guilt; in

contrast, Davidson was adjudicated guilty, her sentences were pronounced, and the trial

court then suspended her sentences. See Howard, 830 S.W.2d at 787; Jefferson, 803

S.W.2d at 470.

Davidson’s cases are traditional probation cases. The trial court did not defer

adjudicating Davidson’s guilt; instead, in each case, the trial court accepted Davidson’s

plea of guilty, found her guilty of the offense, assessed her punishment, suspended her

sentence, and placed her on community supervision. Davidson did not receive deferred

adjudication. Because a defendant who is given deferred adjudication is not being found

guilty and punishment is not then imposed, the trial court is not confined to its prior

order; instead, if the defendant fails to fulfill the terms of the trial court’s community

supervision order, the trial court may consider the full range of punishment. See Weed v.

State, 891 S.W.2d 22, 25 (Tex. App.—Fort Worth 1995, no pet.).

Davidson also complains the trial court did not consider evidence in mitigation of

her sentence. However, the record does not reflect that the trial court refused to consider

any of the evidence that Davidson offered. During the evidentiary hearing on the motion

to revoke, Davidson’s attorney called her as a witness, the State never objected to any of

the questions that she was asked, and Davidson did not call any other witnesses to testify

6 on her behalf. Thus, the record shows the trial court provided Davidson an opportunity to

present any evidence she wished to offer.

In summary, even had Davidson timely objected and preserved error, the record

does not support Davidson’s claim that the trial court denied her right to receive due

process. Nevertheless, issues one and two were not properly preserved for our review and

both issues in each of Davidson’s appeals are overruled.

In issue three, Davidson argues that her sentences are disproportionate and

constitute cruel and unusual punishments that violate the Eighth Amendment to the

United States Constitution and the Texas Code of Criminal Procedure. See U.S. Const.

amend. VIII; Tex. Code Crim. Proc. Ann. art. 1.09 (West 2005) (forbidding cruelty). The

record shows that when her sentences were pronounced, Davidson did not complain

about the length of her sentences. See Tex. R. App. P. 33.1(a); Rhoades v. State, 934

S.W.2d 113, 120 (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); Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d) (noting defendant failed to preserve Eighth

Amendment argument that he received disproportionate sentence). Because Davidson

failed to timely object, Davidson has waived the complaints that she attempts to raise in

issue three.

7 However, even had Davidson’s complaints about the length of her sentences been

properly preserved for appellate review, both of Davidson’s sentences are within the

statutorily authorized range of punishment for the two crimes at issue. See Tex. Health &

Safety Code Ann. §§ 481.114(b), 481.117(c); see also Tex. Penal Code Ann. § 12.34

(West 2011), § 12.35 (West Supp. 2012). 2 Punishment is generally not considered

excessive even when it is imposed at the statutory maximum. See Gavin v. State, No. 01-

08-00881-CR, 2010 Tex. App. LEXIS 3862, at **20-21 (Tex. App.—Houston [1st Dist.]

May 20, 2010, no pet.) (not yet released for publication); see also Holley v. State, 167

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

that is within the statutory range for the offense is generally not excessive, nor considered

to be constitutionally cruel or unusual. See Kirk v. State, 949 S.W.2d 769, 772 (Tex.

App.—Dallas 1997, pet. ref’d). Generally, a sentence that is within the statutory range of

punishment established by the Legislature will not be disturbed on appeal. See Jackson v.

State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).

Davidson also failed to prove that her sentences were grossly disproportionate, as

the record contains no evidence “reflecting sentences imposed for similar offenses on

criminals in Texas or other jurisdictions by which to make a comparison.” See Jackson v.

State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no pet.). Because Davidson

2 Because amended section 12.35 contains no material changes relevant to this case, we cite to the current version of the statute. 8 failed to preserve error regarding her complaints about the length of her sentences, we

overrule issue three in each of Davidson’s appeals.

Having overruled all of Davidson’s issues in both appeals, we affirm the trial

court’s judgments.

AFFIRMED.

___________________________ HOLLIS HORTON Justice

Submitted on November 6, 2012 Opinion Delivered January 30, 2013 Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.