Affirmed as Modified; Opinion Filed January 7, 2015.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00261-CR No. 05-13-00262-CR No. 05-13-00263-CR No. 05-13-00264-CR
MARQUIS OBRIAN WHITE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause Nos. F12-56960-U, F12-57100-U, F12-71366-U, F12-71367-U
MEMORANDUM OPINION Before Justices Francis, Evans, and Stoddart Opinion by Justice Stoddart Marquis Obrian White pleaded guilty to two charges of aggravated sexual assault and
two charges of sexual assault of a child. White entered an open plea of guilty to the charges, and
pleaded true to two enhancement paragraphs. In each case, the trial court sentenced White to life
imprisonment and assessed fines; the trial court ordered the sentences to run consecutively. In
two issues, White argues the trial court abused its discretion by failing to order a presentence
investigation and the trial court failed to consider the full range of punishment options. We
modify the trial court’s judgments to delete the assessments of fines. As modified, we affirm the
judgments. Both of White’s issues arise from the trial judge’s comments after the State rested its
case. The judge said: “Because I’m going to deny your request for a PSI or a CATS evaluation.
I think you preserved any kind of appeal issue if that’s what you’re requesting, but I’m going to
deny that request. It’s not something I’m even close to considering is probation.” At the
beginning of the proceedings, the trial judge informed White the range of punishment in each
case was either “deferred probation or 25 to life.” Although White maintains the trial court erred
by failing to request a presentence investigation and by failing to consider probation, White was
not entitled to either.
White pleaded guilty to two charges of aggravated sexual assault with a deadly weapon,
see TEX. PENAL CODE § 22.021, and two charges of sexual assault of a child, see id.§ 22.011.
Aggravated sexual assault is a first degree felony. Id. § 22.021(e). Sexual assault of a child is a
second degree felony. Id. § 22.011(f). However, because White also pleaded true to two
enhancement paragraphs, the appropriate statutory punishment range was imprisonment for life,
or for any term of not more than 99 years or less than 25 years. See id. § 12.42(d). A defendant
is not eligible for community supervision if the person is sentenced to a term of imprisonment
that exceeds 10 years, see TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3(e)(1), or the person is
convicted of an offense under section 22.021 of the penal code, see id. art. 42.12 §3g (a)(1)(E).
In his first issue, White complains the trial court failed to order presentencing reports.
The code of criminal procedure states a “judge is not required to direct an officer to prepare a
presentence report in a felony case under this section” if the “only available punishment is
imprisonment.” Id. art. 42.12 § 9(g)(3). As established above, the statutory punishment for an
individual convicted of the offenses committed by White is imprisonment. Because White was
not eligible for community supervision after being found guilty, the trial court did not err by
failing to order any presentencing reports. See Munoz v. State, No. 03-12-00809-CR, 2014 WL
–2– 6208654, at *5 (Tex. App.—Austin Nov. 14, 2014, no pet.) (mem. op., not designated for
publication) (citing TEX. CODE CRIM. PROC. ANN. art. 42.12 §§ 3g(a)(1)(E), 9(g)(3)) (“as
appellant concedes in his brief, appellant was not entitled to have a PSI conducted in the instant
case because the jury convicted him of multiple counts of aggravated sexual assault of a child,
and thus he was not eligible for community supervision.”); Jimenez v. State, 446 S.W.3d 544,
550-51 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art.
42.12 § 9(g)(3)) (defendant convicted of aggravated sexual assault not entitled to presentence
investigation).
White also argues the trial court erred by failing to order a Comprehensive Assessment
and Treatment Services (CATS) evaluation. When faced with a similar challenge, this Court
previously stated: “Without any mandatory authority requiring the trial court to order a CATS
evaluation, appellant cannot show the trial court abused its discretion by failing to order one.”
Tollefsrud v. State, No. 05-11-00857-CR, 2012 WL 2054789, at *2 (Tex. App.—Dallas June 8,
2012, no pet.) (mem. op., not designated for publication). Although the proceeding before the
trial court in Tollefsrud was a motion to revoke probation, the same principle applies to White’s
case. White has not cited any authority—and we have not found any—requiring the trial court to
order a CATS evaluation. We conclude the trial court did not err by refusing to order a CATS
evaluation. We overrule White’s first issue.
In his second issue, White argues the trial court failed to consider the full range of
punishment options “when it pre-determined that Appellant would not receive probation before
hearing all of the evidence.” The code of criminal procedure specifically states an offender such
as White, upon conviction, is not eligible for community supervision. See TEX. CODE CRIM.
PROC. ANN. art. 42.12 §§ 3(e)(1), 3g (a)(1)(E). Once the trial court found White guilty on his
pleas, he was only eligible to serve a term of years. Therefore, to consider the entire range of
–3– punishment, the trial court was not required to consider probation. We overrule White’s second
issue.
In each case, the trial court assessed punishment at life imprisonment, a $10,000 fine, and
court costs. The statutory punishment for an individual convicted of the offenses committed by
White is imprisonment for a term of years. See TEX. PENAL CODE § 12.42(d). The penal code
does not authorize the trial court to assess fines against White. See id.; see also Dolph v. State,
440 S.W.3d 898, 908 (Tex. App.—Texarkana 2013, pet. ref’d). Therefore, the portion of the
trial court’s judgments in which White was assessed fines were not authorized.
An appellate court may reform a judgment containing unauthorized punishment. See Ex
parte Johnson, 697 S.W.2d 605, 607-08 (Tex. Crim. App. 1985); TEX. R. APP. P. 43.2. Because
the fines were not authorized, we modify the judgments to delete the fines assessed against
White.
In each case, we modify the judgment to delete the assessment of a fine. As modified, we
affirm the trial court’s judgments.
/Craig Stoddart/ CRAIG STODDART JUSTICE
Do Not Publish TEX. R. APP. P. 47 130261F.U05
–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARQUIS OBRIAN WHITE, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-13-00261-CR V. Trial Court Cause No. F-1256960-U. Opinion delivered by Justice Stoddart. THE STATE OF TEXAS, Appellee Justices Francis and Evans participating.
Based on the Court’s opinion of this date, we MODIFY the judgment of the trial court to DELETE the assessment of the $10,000 fine.
As modified, the judgment of the trial court is AFFIRMED.
Judgment entered this 7th day of January, 2015.
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Affirmed as Modified; Opinion Filed January 7, 2015.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00261-CR No. 05-13-00262-CR No. 05-13-00263-CR No. 05-13-00264-CR
MARQUIS OBRIAN WHITE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause Nos. F12-56960-U, F12-57100-U, F12-71366-U, F12-71367-U
MEMORANDUM OPINION Before Justices Francis, Evans, and Stoddart Opinion by Justice Stoddart Marquis Obrian White pleaded guilty to two charges of aggravated sexual assault and
two charges of sexual assault of a child. White entered an open plea of guilty to the charges, and
pleaded true to two enhancement paragraphs. In each case, the trial court sentenced White to life
imprisonment and assessed fines; the trial court ordered the sentences to run consecutively. In
two issues, White argues the trial court abused its discretion by failing to order a presentence
investigation and the trial court failed to consider the full range of punishment options. We
modify the trial court’s judgments to delete the assessments of fines. As modified, we affirm the
judgments. Both of White’s issues arise from the trial judge’s comments after the State rested its
case. The judge said: “Because I’m going to deny your request for a PSI or a CATS evaluation.
I think you preserved any kind of appeal issue if that’s what you’re requesting, but I’m going to
deny that request. It’s not something I’m even close to considering is probation.” At the
beginning of the proceedings, the trial judge informed White the range of punishment in each
case was either “deferred probation or 25 to life.” Although White maintains the trial court erred
by failing to request a presentence investigation and by failing to consider probation, White was
not entitled to either.
White pleaded guilty to two charges of aggravated sexual assault with a deadly weapon,
see TEX. PENAL CODE § 22.021, and two charges of sexual assault of a child, see id.§ 22.011.
Aggravated sexual assault is a first degree felony. Id. § 22.021(e). Sexual assault of a child is a
second degree felony. Id. § 22.011(f). However, because White also pleaded true to two
enhancement paragraphs, the appropriate statutory punishment range was imprisonment for life,
or for any term of not more than 99 years or less than 25 years. See id. § 12.42(d). A defendant
is not eligible for community supervision if the person is sentenced to a term of imprisonment
that exceeds 10 years, see TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3(e)(1), or the person is
convicted of an offense under section 22.021 of the penal code, see id. art. 42.12 §3g (a)(1)(E).
In his first issue, White complains the trial court failed to order presentencing reports.
The code of criminal procedure states a “judge is not required to direct an officer to prepare a
presentence report in a felony case under this section” if the “only available punishment is
imprisonment.” Id. art. 42.12 § 9(g)(3). As established above, the statutory punishment for an
individual convicted of the offenses committed by White is imprisonment. Because White was
not eligible for community supervision after being found guilty, the trial court did not err by
failing to order any presentencing reports. See Munoz v. State, No. 03-12-00809-CR, 2014 WL
–2– 6208654, at *5 (Tex. App.—Austin Nov. 14, 2014, no pet.) (mem. op., not designated for
publication) (citing TEX. CODE CRIM. PROC. ANN. art. 42.12 §§ 3g(a)(1)(E), 9(g)(3)) (“as
appellant concedes in his brief, appellant was not entitled to have a PSI conducted in the instant
case because the jury convicted him of multiple counts of aggravated sexual assault of a child,
and thus he was not eligible for community supervision.”); Jimenez v. State, 446 S.W.3d 544,
550-51 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art.
42.12 § 9(g)(3)) (defendant convicted of aggravated sexual assault not entitled to presentence
investigation).
White also argues the trial court erred by failing to order a Comprehensive Assessment
and Treatment Services (CATS) evaluation. When faced with a similar challenge, this Court
previously stated: “Without any mandatory authority requiring the trial court to order a CATS
evaluation, appellant cannot show the trial court abused its discretion by failing to order one.”
Tollefsrud v. State, No. 05-11-00857-CR, 2012 WL 2054789, at *2 (Tex. App.—Dallas June 8,
2012, no pet.) (mem. op., not designated for publication). Although the proceeding before the
trial court in Tollefsrud was a motion to revoke probation, the same principle applies to White’s
case. White has not cited any authority—and we have not found any—requiring the trial court to
order a CATS evaluation. We conclude the trial court did not err by refusing to order a CATS
evaluation. We overrule White’s first issue.
In his second issue, White argues the trial court failed to consider the full range of
punishment options “when it pre-determined that Appellant would not receive probation before
hearing all of the evidence.” The code of criminal procedure specifically states an offender such
as White, upon conviction, is not eligible for community supervision. See TEX. CODE CRIM.
PROC. ANN. art. 42.12 §§ 3(e)(1), 3g (a)(1)(E). Once the trial court found White guilty on his
pleas, he was only eligible to serve a term of years. Therefore, to consider the entire range of
–3– punishment, the trial court was not required to consider probation. We overrule White’s second
issue.
In each case, the trial court assessed punishment at life imprisonment, a $10,000 fine, and
court costs. The statutory punishment for an individual convicted of the offenses committed by
White is imprisonment for a term of years. See TEX. PENAL CODE § 12.42(d). The penal code
does not authorize the trial court to assess fines against White. See id.; see also Dolph v. State,
440 S.W.3d 898, 908 (Tex. App.—Texarkana 2013, pet. ref’d). Therefore, the portion of the
trial court’s judgments in which White was assessed fines were not authorized.
An appellate court may reform a judgment containing unauthorized punishment. See Ex
parte Johnson, 697 S.W.2d 605, 607-08 (Tex. Crim. App. 1985); TEX. R. APP. P. 43.2. Because
the fines were not authorized, we modify the judgments to delete the fines assessed against
White.
In each case, we modify the judgment to delete the assessment of a fine. As modified, we
affirm the trial court’s judgments.
/Craig Stoddart/ CRAIG STODDART JUSTICE
Do Not Publish TEX. R. APP. P. 47 130261F.U05
–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARQUIS OBRIAN WHITE, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-13-00261-CR V. Trial Court Cause No. F-1256960-U. Opinion delivered by Justice Stoddart. THE STATE OF TEXAS, Appellee Justices Francis and Evans participating.
Based on the Court’s opinion of this date, we MODIFY the judgment of the trial court to DELETE the assessment of the $10,000 fine.
As modified, the judgment of the trial court is AFFIRMED.
Judgment entered this 7th day of January, 2015.
–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARQUIS OBRIAN WHITE, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-13-00262-CR V. Trial Court Cause No. F-1257100-U. Opinion delivered by Justice Stoddart. THE STATE OF TEXAS, Appellee Justices Francis and Evans participating.
Based on the Court’s opinion of this date, we MODIFY the judgment of the trial court to DELETE the assessment of the $10,000 fine.
–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARQUIS OBRIAN WHITE, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-13-00263-CR V. Trial Court Cause No. F-1271366-U. Opinion delivered by Justice Stoddart. THE STATE OF TEXAS, Appellee Justices Francis and Evans participating.
Based on the Court’s opinion of this date, we MODIFY the judgment of the trial court to DELETE the assessment of the $10,000 fine.
–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARQUIS OBRIAN WHITE, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-13-00264-CR V. Trial Court Cause No. F-1271367-U. Opinion delivered by Justice Stoddart. THE STATE OF TEXAS, Appellee Justices Francis and Evans participating.
Based on the Court’s opinion of this date, we MODIFY the judgment of the trial court to DELETE the assessment of the $10,000 fine.
–8–