Opinion
04-21-00418-CR
08-24-2022
Joshua Martin MCGINNIS, Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 16-0304-CR-B Honorable William D. Old III, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice
MEMORANDUM OPINION
PATRICIA O. ALVAREZ, JUSTICE
AFFIRMED
Appellant McGinnis appeals from his community supervision revocation. He raises threeissues: 1) the trial court's actual basis for revocation was improper; 2) the judgment is void due to a sentencing discrepancy; and 3) the sentence was cruel and unusual.
Background
On August 18, 2016, Appellant McGinnis pleaded guilty to possession of methamphetamine in an amount between one and four grams. At McGinnis's plea hearing, the State announced the terms of their plea agreement:
The State: In return for the defendant's anticipated plea of guilty, the State is recommending ten years TDCJ ID probated for eight years, a $1,500 fine and costs, drug/alcohol evaluation, counseling and treatment as directed.
The trial court explained the plea proceeding and sentencing to McGinnis.
The Court: I'm not a party to that agreement. I don't have to go along with it. If I do go along with it, you will not be allowed to appeal. If I don't go along with it, I will allow you to withdraw the guilty plea, which I anticipate receiving from you momentarily, and we can have that jury trial we talked about.
McGinnis pleaded guilty, and the trial court set a new date for sentencing.
McGinnis did not appear for his sentencing. The trial court issued a warrant for his arrest. When McGinnis appeared before the court nearly four months later, the trial court reminded McGinnis that a provision from his plea agreement subjected him to a potentially higher sentence if he failed to appear.
The Court: All right. Part of the plea agreement is that if Defendant fails to appear in court on the date set for sentencing or punishment or commits a new crime, Defendant agrees that the State may advocate a higher punishment and the judge may increase the defendant's sentence including the full range of punishment.
The trial court then sentenced McGinnis to the full available term of imprisonment for his third degree felony and suspended the sentence, placing McGinnis on ten years community supervision.
The Court: All right. I'm going to change the deal a little bit. Having pled guilty, I find you guilty of the offense of possession of a controlled substance, penalty group one, more than one gram, less than four grams. I sentence you to 10 years in the Texas Department of Criminal Justice Institutional Division; however, will probate that for a period of ten years.
During his term of community supervision, McGinnis failed to comply: he was convicted of the unauthorized use of a vehicle; he failed to report that he was questioned pursuant to the criminal investigation; he failed to report in person to the Guadalupe County Community Supervision and Corrections Department; he failed to pay restitution and fees; he failed to participate in required drug education; he failed to submit to a required evaluation for incarceration alternatives; and he failed to obtain an occupational driver's license.
On June 18, 2019, the State moved to revoke McGinnis's community supervision. A capias issued, and McGinnis was arrested in January 2020. McGinnis was released on bond pending his revocation hearing, which occurred on April 21, 2021. At the hearing, McGinnis pleaded true to ten of the State's fourteen alleged violations. The trial court accepted McGinnis's admissions and scheduled sentencing for April 26, 2021. McGinnis failed to appear for the sentencing. In July 2021, McGinnis turned himself in. In September 2021, the trial court sentenced McGinnis to eight years in the Texas Department of Criminal Justice with credit for time served. McGinnis appeals.
Jurisdiction
"A defendant may [] appeal from the trial court's order revoking probation." Manganello v. State, 915 S.W.2d 158, 159 (Tex. App.-San Antonio 1996, no pet.) (citing Corley v. State, 782 S.W.2d 859, 860 (Tex. Crim. App. 1989); Edwards v. State, 835 S.W.2d 660, 662 (Tex. App.- Dallas 1992, no pet.)).
Proper Basis for Revocation
A. Parties' Arguments
McGinnis argues that the trial court used his April 26, 2021 failure to appear to revoke his probation and that it was improper because the State did not allege it as a basis for revocation. The State argues that there were several bases for the trial court to find that McGinnis violated his probation and that it was within the trial court's discretion to consider McGinnis's failure to appear at sentencing for the violations.
B. Standard of Review
"Appellate review of an order revoking community supervision is limited to the issue of whether the trial court abused its discretion." Guzman v. State, No. 11-97-048-CR, 1997 WL 33804158, at *1 (Tex. App.-Eastland Aug. 21, 1997, no pet.) (citing Flournoy v. State, 589 S.W.2d 705 (Tex. Crim. App. 1979)).
C. Law
"If community supervision is revoked after a hearing under Article 42A.751(d) [(community supervision violation)], the judge may…proceed to dispose of the case as if there had been no community supervision…." Tex. Code Crim. Proc. Ann. art. 42A.755(a)(1). This means the trial court may impose the sentence originally assessed. "Or, if the trial court determines the best interest of society and the defendant would be served by a shorter term of confinement, the trial court may exercise its discretion to reduce the term of confinement originally assessed to any term not less than the minimum prescribed for the offense." See Lombardo v. State, 524 S.W.3d 808, 816 (Tex. App.-Houston [14th Dist.] 2017, no pet.). "A finding of a single violation of community supervision is sufficient to support revocation." Darensburgh v. State, No. 05-08-00960-CR, 2009 WL 280476, at *1 (Tex. App.-Dallas Feb. 6, 2009, no pet.) (mem. op.) (citing Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980); Leach v. State, 170 S.W.3d 669, 672 (Tex. App.-Fort Worth 2005, pet. ref'd.)).
D. Analysis
McGinnis's original sentence was ten years in the Department of Criminal Justice. The trial court suspended the sentence to place McGinnis on ten years community supervision. Once McGinnis was found to be in violation of the terms of his community supervision pursuant to Texas Code of Criminal Procedure article 42A.751(d), the trial court had the discretion to impose the ten-year prison sentence from McGinnis's plea. See Lombardo, 524 S.W.3d at 816. The trial court admonished McGinnis for failing to appear and discussed the lighter sentence McGinnis might have received five months earlier. However, the trial court also made clear that it could have sentenced McGinnis to eight years in prison without the failure to appear. See id. The essential question before this court in McGinnis's first issue is whether the record supports the trial court granting the State's motion to revoke. The State's motion to revoke was based on fourteen violations, ten of which McGinnis admitted. McGinnis was not entitled to remain on community supervision after the trial court accepted McGinnis's admissions. See id. We conclude that the trial court did not abuse its discretion by revoking McGinnis's community supervision, and we overrule McGinnis's first issue.
Discrepancy Between Oral and Written Pronouncement of Sentence
A. Parties' Arguments
Appellant argues that the written judgment from his plea sentencing reveals a discrepancy between his plea agreement-10 years TDCJ-ID probated for 8 years-and the sentence imposed by the trial court-10 years TDCJ-ID probated for 10 years. He argues that his plea sentence was therefore void and his revocation sentence null. The State responds that the discrepancy is clerical and that this court should modify McGinnis's sentence in the judgment.
B. Standard of Review
A defendant-appellant may raise the issue of a potentially void sentence at any time, and we will review the record for conclusive evidence of a void judgment. See Wright v. State, 506 S.W.3d 478, 482 (Tex. Crim. App. 2016).
C. Law
To successfully appeal a void judgment, a defendant-appellant must show that there is no question in the record that a fundamental defect exists. See, e.g., Ephraim v. State, No. 02-19-00076-CR, 2020 WL 938175, at *1 (Tex. App.-Fort Worth Feb. 27, 2020, no pet.); Huddleston v. State, No. 08-01-00282-CR, 2002 WL 831147, at *2 (Tex. App.-El Paso May 2, 2002, pet. ref'd) (citing Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001)).
D. Analysis
Both parties briefed this issue without the benefit of the reporter's record from McGinnis's plea sentencing. That record reveals 1) that McGinnis was never sentenced to eight years of probation and 2) that the trial court made no clerical error. In sentencing McGinnis to ten years community supervision, the trial court relied on a provision from McGinnis's plea agreement that states: "If the defendant fails to appear in court on the date set for the sentencing/punishment hearing or commits a new crime, the defendant agrees that the State may advocate a higher punishment and the judge may increase the defendant's sentence to include the full range of punishment." We, therefore, disagree that the trial court's pronounced sentence was incongruous with McGinnis's plea agreement. McGinnis's second issue is overruled.
Cruel and Unusual Punishment
A. Parties' Arguments
McGinnis argues that the sentence imposed against him was cruel and unusual. The State argues that McGinnis waived this issue by failing to raise it at sentencing.
B. Standard of Review
"We will not disturb a trial court's decision as to punishment absent a showing of abuse of discretion and harm." Alvarez v. State, 525 S.W.3d 890, 892 (Tex. App.-Eastland 2017, pet. ref'd) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)).
C. Law
As argued by the State, "disproportionate-sentence claims must be preserved at the trial court level." Banister v. State, 551 S.W.3d 768, 769 (Tex. App.-Fort Worth 2017, no pet.) (citing Kim v. State, 283 S.W.3d 473, 475 (Tex. App.-Fort Worth 2009, pet. ref'd) (holding that disproportionate-sentence claim was forfeited)); accord Tex. R. App. P. 33.1(a).
D. Analysis
Here, McGinnis did not object to the ten-year sentence in the trial court as being cruel and unusual. See Tex. R. App. P. 33.1(a). The issue is waived, and we overrule it.
Conclusion
This court has reviewed McGinnis's three issues: improper basis for revocation, sentencing discrepancy, and cruel and unusual punishment. For the first issue, we conclude that the trial court did not abuse its discretion. For the second issue, we conclude that the record did not support McGinnis's argument. For the last issue, McGinnis waived review by failing to object in the trial court. Accordingly, we affirm the trial court's judgment.