Opinion
NUMBER 13-17-00355-CR
03-01-2018
EDUARDO PEREZ LARA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa
Memorandum Opinion by Justice Rodriguez
Appellant Eduardo Perez Lara appeals from the revocation of his community supervision. By two issues, Lara contends that the trial court erred when it: (1) denied him the opportunity to present punishment evidence; and (2) failed to credit his sentence for time spent in a substance abuse felony punishment facility (SAFPF). We affirm as modified.
I. BACKGROUND
On March 22, 2013, Lara was indicted for tampering with physical evidence, a third-degree felony. See TEX. PENAL CODE ANN. § 37.09 (West, Westlaw through 2017 1st C.S.). On July 15, 2013, Lara pleaded guilty pursuant to a plea agreement. The trial court accepted the plea and, following the plea agreement, deferred a finding of guilt and placed Lara on community supervision for three years.
It is undisputed that on September 27, 2012, when a safety officer entered the classroom in which Lara was a student, Lara ran out and threw his backpack away. Another safety officer recovered the backpack, which contained six pills identified as alprazolam and a pipe with marijuana residue.
Our review of the record reveals that between February 6, 2014 and October 7, 2015 the State filed three motions to revoke for which Lara received jail sanctions (first and second motions) and placement in a SAFPF for a term of three to twelve months and an extension of his community supervision to four years (third motion). On January 4, 2017, the State filed a fourth motion to revoke Lara's community supervision. Among other things, the motion alleged that while participating in a residential substance abuse aftercare program (the Transitional Treatment Center) Lara violated five house rules. The State alleged that these five violations occurred between October 16, 2016 and December 8, 2016. A sixth violation occurred on December 9, 2016 when Lara was unsuccessfully discharged from the Transitional Treatment Center due to non-compliance with the rules and regulations.
At an April 6, 2017 hearing on the State's fourth revocation motion, after Lara pleaded true to the violation allegations and the trial court found the allegations to be true, the court revoked Lara's community supervision and proceeded to adjudicate him guilty. The trial court sentenced Lara to three years in the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) and advised him that he would "get time credit for time [he had] spent in the local system in the case." On April 21, 2017, the trial court heard and denied Lara's motion to reconsider, which complained generally of his sentence and sought continued probation, not incarceration. And on May 1, 2017, the court entered a written judgment, sentencing Lara to three years in the TDCJ-ID and ordering him to receive credit on his sentence for the time spent incarcerated; 112 days credit was handwritten in the time-credited portion of the judgment. This appeal followed.
II. LARA WAIVED HIS OPPORTUNITY TO PRESENT EVIDENCE ON PUNISHMENT
By his first issue, Lara contends that the trial court erred in denying him the opportunity to present punishment evidence. Suggesting that he had no time to object, Lara complains that, following his adjudication, the trial court never inquired of him or his trial counsel whether he wanted to say anything regarding punishment in the event his community supervision was revoked.
"[W]hen a trial court finds that an accused has committed a violation as alleged by the State and adjudicates a previously deferred finding of guilt, the court must then conduct a second phase to determine punishment." Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (en banc) (per curiam); see Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) (en banc) (same). But a defendant waives any complaint he has on appeal to the lack of a separate punishment hearing following revocation of deferred-adjudication probation by failing to object before the trial court imposes his sentence. Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex. Crim. App. 2001) (en banc); see TEX. R. APP. P. 33.1(a); see also Euler v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007) ("If appellant wanted an opportunity to present evidence and argument on the question of punishment, it was incumbent upon him to ask for that opportunity and to be ready to present such evidence and argument as soon as the trial court announced its finding that he had violated the conditions of his probation."). Such an objection should be made at the time the trial court denies the defendant an opportunity to present punishment evidence or, if the defendant has no opportunity to object at that time, at least by a motion for new trial. See Vidaurri, 49 S.W.3d at 886; Grammer v. State, 268 S.W.3d 774, 779 (Tex. App.—Waco 2008), aff'd, 294 S.W.3d 182 (Tex. Crim. App. 2009).
In the present case, Lara did not object to the trial court imposing his sentence without holding a separate punishment hearing after it found the violations of his community supervision true, revoked his community supervision, and adjudged him guilty. See Vidaurri, 49 S.W.3d at 885; TEX. R. APP. P. 33.1(a). And while it appears he may not have had an opportunity to object before sentencing, Lara did not bring such a complaint to the attention of the trial court in his Motion for Reconsideration or Reduction of Sentence, which we construe as a motion for new trial. See Vidaurri, 49 S.W.3d at 885; Grammer, 268 S.W.3d at 779. We conclude Lara waived any error. See Vidaurri, 49 S.W.3d at 885. We overrule the first issue.
III. HAVING SUCCESSFULLY COMPLETED HIS PROGRAM AT THE SAFPF,
LARA IS ENTITLED TO CREDIT FOR TIME SPENT THERE
By his second issue, Lara contends that the trial court failed to give him 275 days credit for time spent in a SAFPF. He requests that we reform the judgment to reflect that credit. The State responds that there is insufficient information in the present record for this Court to credit Lara with additional time. We disagree with the State.
A. Applicable Law
Article 42A.755(d) of the Texas Code of Criminal Procedure provides:
On revocation, the judge shall credit to the defendant time served as a condition of community supervision in a substance abuse felony punishment facility operated by the Texas Department of Criminal Justice under Section 493.009, Government Code, or other court-ordered residential program or facility, but only if the defendant successfully completes the treatment program in that facility.TEX. CODE CRIM. PROC. ANN. art. 42A.755(d) (West, Westlaw through 2017 1st C.S.). Article 42A.755(d) requires a judge to give credit to a defendant who successfully completes a substance abuse program. See id.; see also Woodard v. State, No. 13-09-00694-CR, 2011 WL 2732669, at *2 (Tex. App.—Corpus Christi July 14, 2011, no pet.) (mem. op., not designated for publication) (reviewing credit for time served in a SAFPF under former article 42.12, section 23(b) of the Texas Code of Criminal Procedure, now article 42A.755(d)).
When interpreting a statute, the court should give effect to the plain and literal meaning, unless such interpretation is ambiguous or would lead to absurd consequences not intended by the legislature. Badgett v. State, 42 S.W.3d 136, 138 (Tex. Crim. App. 2001) (en banc). Because this statute requires the substance abuse program to be completed in "that facility," the legislature did not intend that a defendant is required to successfully complete treatment at a subsequent program in order to receive credit for the completion of the first program. See id.; Patterson v. State, 525 S.W.3d 896, 897 (Tex. App.—Tyler 2017, no pet.); see also Woodard, 2011 WL 2732669, at *3; Burke v. State, 2010 WL 3431675, at *4 (Tex. App.—Austin Aug. 31, 2010, pet. ref'd) (mem. op. on reh'g, not designated for publication).
B. Discussion
On October 7, 2015, after hearing the State's third motion to revoke, the trial court imposed sanctions on Lara that included the following: "[Lara] shall serve a term of confinement and treatment in the [SAFPF] operated by the Texas Department of Criminal Justice . . . . Upon release from the facility [Lara] shall participate in a drug or alcohol abuse continuum of care treatment plan." As further described in his Conditions of Community Supervision that the court attached to its October 7 order, Lara was required to participate in the SAFPF program and, upon release from the SAFPF, to participate in a residential substance abuse aftercare program at the Transitional Treatment Center. These conditions of Lara's community supervision bring its revocation within the scope of article 42A.755(d) and its credit requirements. See TEX. CODE CRIM. PROC. ANN. art. 42A.755(d).
We have authority to modify the trial court's judgment to make the record speak the truth when we have the necessary data and information to do so. See TEX. R. APP. P. 43.2(b); Patterson, 525 S.W.3d at 897; see also French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (en banc). In this case, the record indicates that Lara entered a SAFPF on December 7, 2015. A SAFPF Progress and Conduct Report dated January 29, 2016 shows that Lara exited Phase 1 on January 14, 2016 and continued in Phase II at that time. The report lists a tentative release date from the SAFPF program as September 7, 2016.
The State also filed its fourth motion to revoke on January 14, 2017. In this fourth motion, the State alleged that Lara violated the conditions of his community supervision as set out in the violation report prepared by the Community Supervision and Corrections Department of Nueces County and attached to the motion. The report identified five violations of the following condition of Lara's community supervision: "UPON release from SAFPF, [Lara will] participate in Transitional Treatment Center, for the purpose of residential substance abuse aftercare. Cooperate fully with all treatment program requirements, and obey all rules and regulations, remaining therein until released by the [c]ourt." The report alleged that Lara violated five rules of the aftercare center—the Transitional Treatment Center—between October 16, 2016 and December 8, 2016. Because Lara was in the aftercare program when the alleged violations occurred, they necessarily occurred after he was released from the SAFPF program.
Considering credit for time served under article 42A.755(d), the record supports the conclusion that Lara entered his first substance abuse program at a SAFPF on December 7, 2015 and was released on September 7, 2016. Lara was participating in his second treatment program for substance abuse aftercare when the alleged violations occurred. Lara's undisputed participation in an aftercare program provides evidence necessary to conclude that Lara was released from a SAFPF after successfully completing the program at that facility. On April 6, 2017, the court revoked Lara's community supervision for violations that occurred during Lara's participation in the second treatment program. Lara is not required to have successfully completed treatment at the subsequent program in order to receive credit for the completion of the first program. See Patterson, 525 S.W.3d at 897; see also TEX. CODE CRIM. PROC. ANN. art. 42A.755(d); Woodard, 2011 WL 2732669, at *3; Burke, 2010 WL 3431675, at *4. So having successfully completed the first program at the SAFPF, Lara is entitled to credit for time spent in that program from December 7, 2015 through September 7, 2016. See TEX. CODE CRIM. PROC. art. 42A.755(d); Patterson, 525 S.W.3d at 897.
Because we have the necessary data and information, Patterson, 525 S.W.3d at 897; see also French, 830 S.W.2d at 609, we conclude that the trial court's judgment should be modified to reflect credit for the time Lara served in a SAFP facility, which, by our calculation, is 275 days to be added to the 112 days already credited to his sentence. See TEX. R. APP. P. 43.2(b). We sustain Lara's second issue.
Credit of 275 days comes from the days Lara served in the SAFPF between December 7, 2015 and September 7, 2016.
IV. CONCLUSION
We modify the judgment of the trial court to award Lara an additional credit of 275 days for time served in the SAFPF program. See id. We affirm the judgment as modified.
NELDA V. RODRIGUEZ
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 1st day of March, 2018.