Cleon Smith, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: October 5, 2012
• Docket: 06-12-00012-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

_________________________

No. 06-12-00012-CR ______________________________

CLEON SMITH, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th Judicial District Court Gregg County, Texas Trial Court No. 40,826-A

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION

Cleon Smith, Jr., claims the trial court failed to consider deferred adjudication when

Smith entered his open plea of guilty.1 Finding nothing in the record to support this claim, and

noting that Smith made no objection to the ruling, we overrule this point of error. We affirm the

trial court’s judgment and sentence.

I. Facts

Smith pled guilty to the charge of burglary of a habitation. There was no negotiated plea

agreement in place; the State urged the trial court to sentence Smith to ten years’ incarceration.2

Through his attorney, Smith asked the trial court to grant community supervision to any

sentence, consider some jail time as a condition of supervision, or consider deferred adjudication

and “hold the whole range of punishment over his head.” After hearing testimony, reviewing a

presentence investigation report, and considering arguments of counsel, the trial court stated,

“Your pre-sentence and the fact that you were on [community supervision] did not suggest that

you would be a good candidate for another [community supervision], so I’m going to assess your

sentence at five years confinement in the Institutional Division of the Texas Department of

Criminal Justice.” Smith made no objection to the trial court’s sentence. He filed a motion for

1 In his second point of error, Smith alleges that “[t]he civil rights of an accused are affected differently by each form of community supervision, it was error for the trial court not to consider those differences in assessing punishment.” We interpret this as an additional argument that the trial court erred in failing to consider deferred adjudication community supervision. 2 Smith was twenty-two years old at the time of his trial; he admitted having several juvenile adjudications for such offenses as theft, public lewdness, and riot participation. When he participated in the burglary to which he was pleading, he was on misdemeanor community supervision for possession of marihuana and evading arrest.

2 new trial, but that motion only complained of the sufficiency of the evidence and did not allege

the trial court failed to consider deferred adjudication.

II. Appellate Complaint Not Preserved

A trial court has the authority “without entering an adjudication of guilt” to defer further

proceedings and place a defendant on community supervision. TEX. CODE CRIM. PROC. ANN. art.

42.12, § 5(a) (West Supp. 2012). In his written request for community supervision, Smith only

requested that “in the event of my conviction” he be placed on community supervision. But in

his argument to the trial court, Smith asked the court to consider placing him on community

supervision or deferred adjudication community supervision. Although the trial court did not

specifically use the phrase deferred adjudication, he told Smith he would consider Smith’s

request for community supervision, but was under no compulsion to grant that or to follow the

State’s recommendation. Citing the fact Smith was on community supervision when he

committed the instant offense, the trial court declined community supervision for the current

charge and ordered Smith incarcerated for five years. Smith made no objection to the sentence;

he did not claim the trial court failed to consider deferring adjudication of the pending burglary

charge; and he did not claim that his civil rights would be affected differently by a different form

of community supervision. Having failed to object to the trial court’s sentence, Smith did not

preserve the appellate complaints he now makes. See TEX. R. APP. P. 33.1; see also Teixeira v.

State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref’d) (defendant failed to preserve

error that trial court arbitrarily refused to consider entire range of punishment because he failed

to make timely objection); Cole v. State, 931 S.W.2d 578, 580 (Tex. App.—Dallas 1995, pet.

3 ref’d). Because Smith did not preserve either of the complaints he presents in his appellate brief,

there is nothing for us to review.

We affirm the trial court’s judgment and sentence.

Jack Carter Justice

Date Submitted: October 4, 2012 Date Decided: October 5, 2012

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