Fielding v. State

719 S.W.2d 361, 1986 Tex. App. LEXIS 9073

• Court: Court of Appeals of Texas
• Decided: September 10, 1986
• Docket: 05-85-01019-CR, 05-85-01020-CR
• Status: Published

Opinions

STEWART, Justice.

B. Donald Fielding appeals from two convictions for possession of a controlled substance with intent to deliver. Appellant contends that revocation of his unadjudicat-ed “probation” violated due process of law and double jeopardy principles, that the change in status from deferred adjudication to 60 years’ imprisonment violates the constitutional prohibition against cruel and unusual punishment, that the trial court erred in refusing to hold a hearing on appellant’s motion for new trial, and that the sentencing process and sentence imposed violated due process. These contentions are without merit. We affirm the trial court’s judgment.

I. Facts

On January 9,1985, appellant entered his plea of guilty. After hearing evidence substantiating appellant's guilt, thé trial court deferred further proceedings without an adjudication of guilt and placed appellant on ten years’ “probation”. See TEX.CODE CRIM.PROC.ANN. art. 42.12, § 3d (Vernon Supp.1986). One condition of appellant’s deferred adjudication was that he “(a) [cjommit no offense against the laws of this or any other state or the United States.”

On May 24, 1985, the State filed its motion to proceed with adjudication of guilt. The motion alleged that appellant had violated condition (a) by driving a motor vehicle on a public street when his driver’s license was suspended. On May 31,1985, a hearing was held on the State’s motion. At the close of that hearing the trial court accepted appellant’s plea of true to the allegations in the State’s motion, found that the allegations were true, granted the State’s motion, and proceeded with the adjudication of guilt. The trial court accepted appellant’s plea of guilty entered January 9, 1985, found appellant guilty, and assessed punishment at 60 years in the Texas Department of Corrections on each offense.

II.Decision to Proceed with Adjudication

In appellant’s first five grounds of error, he alleges constitutional violations connected with the trial court’s decision to proceed with adjudication of guilt. A defendant cannot appeal the trial court’s determination to proceed with adjudication of guilt. TEX.CODE CRIM.PROC.ANN. art. 42.12, § 3d (Vernon Supp.1986). This decision is within the absolute discretion of the trial court and is not subject to appellate review. Homan v. Hughes, 708 S.W.2d 449, 451 (Tex.Crim.App.1986); Williams v. State, 592 S.W.2d 931, 932-33 (Tex.Crim.App.1979). Thus, in ruling on a preliminary motion, our court struck appellant’s first five grounds of error. See Contreras v. State, 645 S.W.2d 298 (Tex.Crim.App. 1983).

III.Cruel and Unusual Punishment

In his sixth ground of error, appellant contends that his change in status from deferred adjudication to sixty years’ incarceration violated the constitutional ban against cruel and unusual punishment. Appellant argues that he has a substantial liberty interest granted by the trial court when it deferred adjudication; that he substantially complied with all the conditions of his deferred adjudication; that his only violations of those conditions were minor traffic offenses unrelated to the offenses with which he was charged; and that, although a lengthy sentence of imprisonment could originally have been imposed, the State is bound by its determination that its best interests were adequately protected by deferred adjudication unless there are sufficient grounds for a redetermination and reevaluation of the decision to impose probation. Appellant further maintains that the justification for the imposition of lengthy prison terms was alleged licensing offenses and that, therefore, the sentences were grossly disproportionate to the minor offenses, thus constituting cruel and unusual punishment.

We note initially that the sixty-year sentences are not punishment for driving with a suspended driver’s license but for the unlawful possession of cocaine with intent to deliver. In essence, appellant’s arguments amount to a contention that the trial court abused its discretion in determining to proceed with adjudication of guilt because there was insufficient evidence to support that determination. This same contention was overruled in Williams v. State, 592 S.W.2d 931 (Tex.Crim.App.1979), which held that the decision to proceed to adjudication is within the absolute discretion of the trial court and is not subject to appellate review. Contreras v. State, 645 S.W.2d 298 (Tex.Crim.App.1983). Furthermore, the punishment assessed was within the limits prescribed by statute. See TEX. REV.CIV.STAT.ANN. art. 4476-15, § 4.03(d) (Vernon Supp.1986). Therefore, the punishment, is not prohibited as cruel and unusual. McNew v. State, 608 S.W.2d 166, 174 (Tex.Crim.App.1978); Samuel v. State, 477 S.W.2d 611, 614-15 (Tex.Crim. App.1972). Appellant’s sixth ground of error is overruled.

IV.Motion For New Trial

In his seventh ground of error appellant contends that the trial court erred in failing to hold a hearing on appellant’s motion for new trial. Granting or denying motions for new trial rests within the discretion of the trial court, and appellate courts will ordinarily not reverse that decision unless the trial court has abused its discretion. This rule also applies where the trial court denies the motion without an evidentiary hearing. Mclntire v. State, 698 S.W.2d 652, 660 (Tex.Crim.App.1985); Appleman v. State, 531 S.W.2d 806, 810 (Tex.Crim.App.1976). However, a hearing on a motion for new trial is mandated when an affidavit attacking the verdict on any matter outside the record itself is sufficient to give the trial court notice that reasonable grounds exist for disturbing its verdict. Mclntire, 698 S.W.2d at 658, 660 (Tex.Crim.App.1985).

In this case, the only extrinsic matter raised by affidavit concerns appellant’s reason for violating the conditions of his deferred adjudication. At the hearing on proceeding with adjudication, Fielding presented evidence showing that he had been unaware that his driver’s license was suspended. The affidavit attached to Fielding’s motion for new trial was executed by the attorney who represented Fielding for traffic violations. It gave the background facts concerning Fielding’s suspended license “which were known to the trial court, but were not part of the record”, as stated in the motion for new trial. This affidavit simply corroborated Fielding’s testimony at the adjudication hearing. Fielding’s motion for new trial presented no issues that required proof to be developed outside the record. Under these circumstances, the trial court did not err in denying Fielding a hearing on his motion. Darrington v. State, 623 S.W.2d 414, 416 (Tex.Crim.App.1981). Appellant’s seventh ground of error is overruled.

V. Due Process

Finally, appellant contends that the sentencing process and sentence imposed in this case violate due process. Appellant argues that he substantially complied with the terms of his “probation” and that the trial court determined his sentence before hearing all the evidence. We initially observe that, to the extent that appellant’s contention attacks the determination to proceed with adjudication of guilt, it is not reviewable by this court. Contreras, 645 S.W.2d at 298.

Appellant argues that the sentence imposed was illegal because the court’s only option after adjudication of guilt was to reinstate appellant’s “probation”. He relies on the Supreme Court decisions in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (parolee), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (probationer), holding that one who has substantially complied with the terms and conditions of probation is entitled as a matter of law to retain his liberty. Both of these cases concern probation after conviction and, therefore, are not applicable to a deferred adjudication proceeding. Deferred adjudication vests no rights in the defendant; it is a product of the court’s leniency. Indeed, there is no appellate review from an order deferring adjudication. If a defendant is dissatisfied with such deferral, his proper remedy is to move for final adjudication under section 3d(a) of article 42.12. McDougal v. State, 610 S.W.2d 509 (Tex.Crim.App.1981).

There is no provision in the statutes for reinstatement of unadjudicated “probation” after guilt has been adjudicated. To the contrary, after an adjudication of guilt, assessment of punishment proceeds “as if the adjudication of guilt has not been deferred.” TEX.CODE CRIM.PROC.ANN. art. 42.12, § 3d(b) (Vernon Supp.1986).

Further, the deferred adjudication statute does not enunciate a “substantial compliance” standard. Violating one condition of deferred adjudication authorizes an adjudication of guilt on the original offense. See Hunter v. State, 640 S.W.2d 656, 658 (Tex.App.—El Paso 1982, pet. ref’d). Indeed, appellant’s plea of “true” is, standing alone, sufficient to justify the revocation. Pierce v. State, 636 S.W.2d (Tex.App.—Corpus Christi 1982, no pet.).

When it deferred adjudication in January, the trial court made the following statement:

When these things are adjudicated, if they are, you’re not getting any ten years, you’re not getting, any twenty years, you’re getting a substantial sentence. And I normally don’t do this, but I’m laying my cards on the table, and if you violate the conditions of your probation, you’re talking about 60 and up; is that clear?

Later, in May, when the trial court proceeded with adjudication and assessed punishment at 60 years, he remarked, “I believe I told you when you came before me that if you violated any terms and conditions of your probation what I was going to do, and I couldn’t be any clearer.”

Appellant contends that the trial judge’s statements reveal that he decided at the time adjudication was deferred that if appellant violated any term of his deferred adjudication he would receive at least a sixty-year sentence; that the trial court refused to consider evidence in mitigation of punishment offered by appellant at the hearing on the State’s motion to proceed with adjudication; and that, consequently, the trial court prejudged and predetermined appellant’s sentence in violation of the Fifth and Fourteenth amendments to the United States Constitution and Article I, section 19 of the Texas Constitution. Specifically appellant complains of the trial court’s failure to consider the fairly innocuous conduct relied upon by the State in its motion to proceed with adjudication and appellant’s exemplary conduct during his deferred adjudication.

We first consider appellant’s claim that the trial court refused to hear evidence in mitigation of punishment. Appellant relies upon Black v. Romano, 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985), Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); United States v. Long, 656 F.2d 1162 (5th Cir. 1981); and United States v. Cavazos, 530 F.2d 4 (5th Cir.1976), for the proposition that when the trial court assesses punishment it must consider good behavior during the deferral period and the nature of the offense that led to its determination to proceed with adjudication of guilt. Of these cases, only Romano involves probation revocation and it is distinguishable from the instant case because it concerned probation after conviction but this case involves the procedures delineated in art. 42.-12, sec. 3d(a) providing for “probation” before conviction. McNew, 608 S.W.2d at 175-76.

Nevertheless, the record reflects that the trial court allowed appellant a full hearing in defense of the motion to proceed with adjudication. Appellant relies on that same defensive testimony as evidence in mitigation of punishment. Although appellant was given the opportunity prior to sentencing to offer additional legal reasons why he should not be sentenced, he merely stated that he would not have been driving if he had known his license was suspended. Thus, the court did not refuse to hear evidence in mitigation of punishment. Once the adjudication hearing was held, the trial court could immediately assess punishment. McNew, 608 S.W.2d at 174.

We next address appellant’s contention that the trial court prejudged and predetermined his sixty-year sentence. After hearing the evidence of appellant’s good behavior during deferred adjudication, the trial judge stated that his decision to proceed with adjudication of guilt and assess punishment at 60 years was made “in light of the pre-sentence report and in light of the prior [felony] probation and in light of the amount of cocaine and in light of all the facts and circumstances surrounding the case....” We conclude that the trial judge considered the evidence presented in mitigation of punishment and, after weighing it against the considerations above, arrived at a punishment of 60 years. In light of the trial judge’s statement we cannot presume that he consciously refused to consider the mitigating evidence when he assessed punishment.

At the hearing held January 9, resulting in appellant’s deferred adjudication, the trial judge admonished appellant that the punishments for appellant’s offenses were confinement for not less than five nor more than ninety-nine years with a fine not to exceed $50,000, and confinement for not less than ten years nor more than ninety-nine years or life with a fine not to exceed $100,000. The trial judge’s statement to appellant at the May 31 hearing, “I told you when you came before me that if you violated any terms and conditions of your probation what I was going to do ...”, may well have referred to the trial judge’s admonishment of appellant and not to the threat of “60 and up.” In the absence of a clear showing to the contrary, we must presume that the trial court’s actions were correct. Thompson v. State, 641 S.W.2d 920, 921 (Tex.Crim.App.1982); see also Schneider v. State, 594 S.W.2d 415, 418 (Tex.Crim.App.1980) (presumption of regularity of proceedings). We conclude that the appellant has failed to rebut the presumption of correct action set forth in Thompson.

We note that, although the trial court is not required to admonish a defendant as to the consequences of deferred adjudication, to do so is the better practice. McNew, 608 S.W.2d at 177. Here, the trial court did inform appellant of the consequences if appellant violated the terms and conditions of his deferred adjudication. If appellant was dissatisfied with the terms and conditions, or with the stated consequences of a future adjudication of guilt, he could have filed for final adjudication within 30 days thereafter under article 42.-12, section 3d(b).

Appellant does not contend that sixty years is an inappropriate sentence for each of the charged offenses. The sentences imposed were within the discretion of the trial court. Because they were within the statutory limits for the offenses charged, they will not be disturbed on appeal. United States v. Lane, 693 F.2d 385, 390 (5th Cir.1982); United States v. White, 524 P.2d 1249, 1254 (5th Cir.1975), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 375 (1976); Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984).

Appellant argues that the trial court imposed the sixty-year sentences because of derogatory publicity incurred by the trial court’s placing appellant on deferred adjudication; that because newspapers quoted the district attorney’s statement, “The judge promised to give him at least sixty years if he messed up,” that the trial court did not consider the full range of punishment after adjudicating appellant’s guilt, but arbitrarily gave appellant the same sixty-year sentence that the trial court had previously announced he would give appellant if appellant’s guilt were adjudicated. We need not speculate on the validity of these allegations because, so long as the punishment imposed by the trial court is within the range prescribed by statute, the motivation of the trial court in imposing the sentence is irrelevant. See White, 524 F.2d at 1254; Tamminen v. State, 653 S.W.2d 799, 803 (Tex.Crim.App.1983).

Additionally, any error in the trial judge’s treatment of appellant’s mitigating evidence is harmless. The following cases support this proposition. Singletary v. State, 509 S.W.2d 572, 577 (Tex.Crim.App.1974), held that excluding evidence of the defendant’s medals, commendations, and citations for meritorious service awarded during his ten years of service in the United States Army was not reversible error. Cleveland v. State, 502 S.W.2d 24, 26 (Tex.Crim.App.1973), held that excluding evidence of the defendant’s volunteer work in a suicide prevention program sponsored by a mental health association was not reversible error. Logan v. State, 455 S.W.2d 267, 269 (Tex.Crim.App.1970), held that excluding evidence that the defendant was a good student who had no disciplinary problems was not reversible error. Miller v. State, 442 S.W.2d 340, 349 (Tex.Crim.App.1969), held that excluding evidence of the defendant’s active membership and attendance in a Baptist church was not reversible error. Coleman v. State, 442 S.W.2d 338, 340 (Tex.Crim.App.1969), held that excluding evidence of appellant’s work record was not reversible error. Allaben v. State, 418 S.W.2d 517, 519 (Tex.Crim.App.1967), held that excluding evidence that the defendant in a sodomy trial was receiving psychiatric treatment for his sexual problems was not reversible error.

Appellant’s due process argument is grounded mainly on the allegation that the trial judge refused to consider mitigating evidence of the appellant’s good behavior during his unadjudicated “probation”. Assuming, without holding, that the trial judge failed to fully and properly consider appellant’s mitigating evidence, we conclude that the error, if any, was harmless because excluding the mitigating evidence would not have been reversible error. See Singletary, 509 S.W.2d at 577; Cleveland, 502 S.W.2d at 26; Logan, 455 S.W.2d at 269; Miller, 442 S.W.2d at 349; Coleman, 442 S.W.2d at 340; Allaben, 418 S.W.2d at 519.

Finally, if appellant felt that the trial court was precluding itself from considering all of the evidence, the appellant could have called attention to the error. At no time during either hearing did appellant object to the trial judge’s statements or actions. If the trial judge committed errors sufficient to warrant reversal on appeal, they deserved at the least an objection or even a motion to recuse. Nevertheless, appellant’s first complaint of the trial judge’s actions appears in appellant’s motion for new trial. Appellant’s failure to timely object or file a recusal motion waived the error, if any. Rogers v. State, 640 S.W.2d 248, 264 (Tex.Crim.App.1982). Appellant’s final ground of error is overruled.

Affirmed.

GUITTARD, C.J., filed a dissenting opinion.