Gage, Shawn Lynn v. State

• Court: Court of Appeals of Texas
• Decided: July 3, 2013
• Docket: 05-11-01246-CR
• Status: Published

Opinion

AFFIRM; and Opinion Filed July 3, 2013.

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-11-01246-CR

SHAWN LYNN GAGE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F10-59705-R

MEMORANDUM OPINION Before Justices Bridges, FitzGerald, and Myers Opinion by Justice Myers Appellant Shawn Lynn Gage pleaded guilty to burglary of a habitation, pursuant to a plea

agreement. The trial court accepted appellant’s plea, deferred adjudicating guilt, placed

appellant on community supervision for a period of two years, and assessed a $2500 fine. Based

on the State’s subsequent motion to proceed to adjudication and appellant’s plea of true, the trial

court granted the State’s motion, found appellant guilty, and sentenced him to five years’

imprisonment. In his issue, appellant contends the trial court abused its discretion by finding the

allegation in the motion to proceed to adjudication true “where the allegation was not a violation

of [a]ppellant’s community supervision.” We affirm the trial court’s judgment.

DISCUSSION

Appellant’s complaint is based on an error in the motion to proceed to adjudication.

Condition “O” of appellant’s community supervision ordered him to have no contact with “Casey Hurst,” but the motion to proceed to adjudication alleged appellant violated condition

“O” by contacting “Cathy Hurst.” The State does not dispute this discrepancy but argues

appellant failed to preserve the issue for our review by not objecting to the error. We agree.

During the hearing on the motion to proceed to adjudication, shortly before the trial court

accepted appellant’s plea of true and granted the State’s motion, the prosecutor read the

allegation in the motion. The relevant portion of the record reads as follows:

[Prosecutor]: Motion to revoke probation or proceed to adjudication of guilt. Comes now the State of Texas by and through her criminal district attorney and would show the Court the following, that Shawn Lynn Gage, defendant, was duly and legally placed on community supervision for a period of two years in the above entitled and numbered cause in the 265th Judicial District Court of Dallas County, Texas on the 15th day of February, A.D., 2011 for the offense of burglary of a habitation.

[Appellant]: That’s enough. I thought you were going to read the stipulation that I’m violating.

The Court: Oh, okay. Thanks.

[Appellant]: That’s all. I thought she was going to read the stipulation, I didn’t know she was going to read all that stuff. Get her off her feet.

The Court: What’s your plea to the State’s motion, is that allegation true or not?

[Appellant]: Well, I don’t know who Kathy Hurst is but I know a Casey Hurst.

The Court: Is the allegation true or not true?

[Appellant]: True, I guess.

The Court: All right. Anything you want to put on record, counsel?

[Defense Counsel]: Yes, Your Honor, I’d like to call Mr. Gage.

The Court: Let’s do that later.

[Defense Counsel]: Oh, okay. Fair enough.

The Court: Go ahead, State.

[The State]: The State offers State’s Exhibit No. 1, the Defendant’s signed written voluntary plea of true and stipulation of evidence, and ask [sic] the Court to take judicial notice of the entire contents of the Court’s file.

–2– [Defense Counsel]: No objection, Your Honor.

(emphasis added). Later, when the trial court accepted appellant’s plea of true, granted the

State’s motion to proceed to adjudication, found appellant guilty, and sentenced him to five years

in prison, the trial court asked defense counsel, “Any reason in law why your client should not

now be sentenced?” Counsel replied, “None, Your Honor.”

Appellant entered a plea of true and did not object to the error contained in the motion to

proceed to adjudication. He argues the issue is not waived because he raised it before the trial

court, but the record does not support appellant’s argument. Appellant’s comment, “Well, I

don’t know who Kathy Hurst is but I know a Casey Hurst,” indicates he was aware, at the time

he entered his plea, of the discrepancy between the spelling of the complainant’s name in the

motion to proceed to adjudication and the conditions of community supervision. Moreover,

when the trial court asked appellant whether the allegation was true, he responded, “True, I

guess.”

Appellant’s trial counsel did not object regarding appellant’s plea of true when the plea

was entered, and appellant’s comments do not constitute a legal objection and did not preserve

error. Thus, appellant failed to preserve his issue for our review. See TEX. R. APP. P. 33.1(a);

Layton v. State, 280 S.W.3d 235, 238-39 (Tex. Crim. App. 2009) (requiring timely objection to

preserve a complaint for appellate review); Miles v. State, 343 S.W.3d 908, 914 (Tex. App.––

Fort Worth 2011, no pet.) (“[T]o the extent that Appellant contends that the field identifications

by Rojo, Fernandez, and Rodriguez were tainted, Appellant did not preserve his complaint

because he did not object at the revocation hearing to the testimony about the field

identifications.”). We therefore overrule appellant’s issue.

–3– We affirm the trial court’s judgment.

Lana Myers LANA MYERS JUSTICE

Do Not Publish TEX. R. APP. P. 47 111246F.U05

–4– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

SHAWN LYNN GAGE, Appellant On Appeal from the 265th Judicial District Court, Dallas County, Texas No. 05-11-01246-CR V. Trial Court Cause No. F10-59705-R. Opinion delivered by Justice Myers. THE STATE OF TEXAS, Appellee Justices Bridges and FitzGerald participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 3rd day of July, 2013.

/Lana Myers/ LANA MYERS JUSTICE

–5–