Nos. 05-07-01737-CR, 05-07-01738-CR
Filed February 12, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F05-48154-UI F06-29997-JI.
Before Justices MORRIS, FRANCIS, and MURPHY.
Opinion By Justice MURPHY.
Marc Christopher Plunk appeals the trial court's two judgments adjudicating him guilty of aggravated robbery and possession of a controlled substance in an amount less than one gram. Appellant contends in six issues in each case that (1) the trial court abused its discretion by adjudicating guilt because the notice lacks specificity, and the State failed to prove the alleged violation of a condition of probation; (2) the sentence imposed constitutes cruel and unusual punishment under the United States and Texas Constitutions and is an abuse of discretion, and (3) the case should be abated to determine if the judgment properly reflects appellant's back time credit. We affirm the trial court's judgments.
BACKGROUND
On October 25, 2006, appellant entered a negotiated guilty plea to the possession of a controlled substance charge. The trial court deferred adjudicating appellant's guilt, placed appellant on two years' community supervision, and assessed a $1500 fine. On December 12, 2006, the State filed a motion to adjudicate, contending appellant violated the conditions of his community supervision by committing an aggravated robbery on October 25, 2006. On December 12, 2006, appellant pleaded guilty to the aggravated robbery charge. The trial court deferred adjudication of appellant's guilt and placed appellant on seven years' community supervision. One condition of appellant's community supervision was: (s) Defendant shall participate for an indeterminate term of confinement and treatment of not less than 90 days or more than twelve months in the Substance Abuse Felony Punishment Facility Program operated by the Institutional Division of the Texas Department of Criminal Justice, and shall comply with all the rules and regulations, attending all sessions and continuing in the program until successfully released from the Program or until the Court releases the defendant from the program. On that same date, the State withdrew its motion to adjudicate in the controlled substance case with the notation "HOLD FOR SAFPF." The trial court modified appellant's conditions of community supervision in that case to include: The defendant is required to serve a term of confinement and treatment in a substance abuse treatment facility under this section, abiding by all rules and regulations of said program for a term not less than 90 days or more than one (1) year. On February 7, 2007, appellant was transferred to the Substance Abuse Felony Punishment Facility (SAFPF) at the Texas Department of Criminal Justice's Johnston Unit. On July 25, 2007, appellant received a "behavioral discharge" from SAFPF for refusing to comply with the program. The State filed a motion to proceed with adjudication of guilt in each case, claiming appellant violated a condition of probation by "fail[ing] to participate in SAFPF as directed." The trial court heard the State's motions on September 27, 2007. Appellant waived reading of the motions and entered pleas of not true. After presentation of all evidence, the trial court adjudicated appellant guilty in each offense. The court sentenced appellant to two years' confinement in a state jail on the controlled substance case and ten years' imprisonment for aggravated robbery. ANALYSISAdjudication of Guilt — Sufficiency of Notice
In his first issue, appellant contends the trial court erred in adjudicating guilt because the State's motions lacked specificity. He complains on appeal that no written condition of probation ever mandated his participation in SAFPF, "much less the degree of participation required." He also argues the motions were not "specific enough to establish exactly what condition of probation it is that Appellant was accused of violating and to what degree." Reversible error exists when the allegations in a motion to revoke fail to inform the probationer fully, and the trial court has refused to sustain a timely exception. See Labelle v. State, 720 S.W.2d 101, 104 (Tex.Crim.App. 1986) (quoting Garner v. State, 545 S.W.2d 178, 179 (Tex.Crim.App. 1977)). Here, appellant did not complain to the trial court by way of exception or motion and in fact waived the reading of the motions to revoke. As a result, appellant has failed to preserve his complaint. See Tex. R. App. P. 33.1; Eddie v. State, 100 S.W.3d 437, 440 (Tex.App.-Texarkana 2003, pet. ref'd). Even if appellant preserved the issue, his complaint fails because the motions give adequate notice of the violation. See Labelle, 720 S.W.2d at 108 (the motion to revoke must give the defendant adequate notice upon which to prepare a defense). The motions in both the aggravated robbery and controlled substance cases listed the alleged violation as "fail[ing] to participate in SAFPF as directed." The conditions of community supervision in appellant's aggravated robbery case required appellant to comply with all rules and regulations of SAFPF until successfully released. The conditions in his possession of a controlled substance case required appellant to abide by all rules and regulations of a substance abuse treatment facility. We conclude the State's motions alleging appellant failed to participate in SAFPF as directed gave him adequate notice upon which to prepare a defense. We overrule appellant's first issue. Adjudication of Guilt — Sufficiency of the Evidence
In his second issue, appellant contends the State failed to prove the alleged violation of a condition of probation by a preponderance of the evidence. Appellant argues that the State established only that appellant did not successfully complete SAFPF, when its burden was to establish that appellant failed to participate. Appellate review of an order revoking probation is limited to abuse of the trial court's discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006). The State's burden in a revocation hearing is to prove by a preponderance of the evidence a violation of a community supervision term. Id. at 763-64. That burden is satisfied when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his community supervision. Id. at 764. If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking the community supervision. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984). On appeal, we view the evidence in the light most favorable to the trial court's order of adjudication. Id. at 493. Here, the State alleged appellant failed to participate in SAFPF as directed. A condition of appellant's community supervision for both cases was compliance with all rules and regulations of the program. At the hearing, Alexandria Boles, the assistant program director at the Johnston Unit, testified she was a member of the treatment team that supervised appellant. She began documenting noncompliant behavior by appellant within sixteen days of his arrival and described appellant as "obstinate, arrogant, [and] resistant." Boles testified that appellant continued to refuse to comply with the program and was "written up" fifty-seven times for violations. She said it takes a "lot of rule violations" and a "lot of resistance" to be discharged from the program. Testimony also showed that appellant underwent two psychological evaluations at SAFPF to determine whether he needed psychotropic medication or was unable to complete the program. Although the evaluations showed appellant had an anxiety disorder with obsessive-compulsive traits, he was not placed on psychotropic medication. The psychologists did not believe appellant needed the medication to complete the program successfully. Appellant claims his failure to complete the SAFPF program was due to another offender's harassment and appellant's undiagnosed mental health issues. Appellant testified he had a drug problem since age seventeen. The aggravated robbery charge was a "wake-up call" that he needed to stop using drugs. He claimed he really pushed to enter a rehabilitation program and that he participated in SAFPF to the best of his ability. He testified about constant harassment from another offender and claimed the counselors were not responsive. Boles testified she was aware appellant had difficulties with another offender, and an investigation of the incident revealed "horseplay." Thereafter, the other offender and appellant were separated. Appellant testified the harassment continued despite the separation. Appellant also testified that many of the "write ups" were false, but admitted many were true. He testified about behavioral problems since he was a young child, including feelings he had of terror, anxiety, panic, and sudden anger. Since returning to the Dallas County Jail, he has been treated for anxiety, stress, depression, and bipolar disorder and, based on the benefit of current medications, believes he could successfully complete SAFPF. The trial court was the sole judge of the credibility of the witnesses and the weight to be given their testimony. Naquin v. State, 607 S.W.2d 583, 586 (Tex.Crim.App. [Panel Op.] 1980). Viewing the evidence in the light most favorable to the trial court's order of adjudication, we conclude the evidence was sufficient to support findings that the conditions of community supervision required appellant to comply with the rules and regulation of SAFPF and that, by failing to do so, appellant did not participate in SAFPF as directed. The trial court did not abuse its discretion by finding appellant violated a condition of his community supervision in each case. We overrule appellant's second issue. Sentencing
In his third and fourth issues, appellant contends the sentence imposed in each case constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution and of Article I, Section 19 of the Texas Constitution. In his fifth issue, appellant claims the trial court abused its discretion as to both sentences because they are "grossly disproportionate to the offense[s]." Appellant raises these issues for the first time on appeal. A prerequisite to appellate review is a complaint to the trial court by timely and specific request, objection, or motion. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Appellant did not complain about the sentences either at the time they were imposed or in his motions for new trial. Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda, 135 S.W.3d at 723. Accordingly, appellant has not preserved these issues for appellate review. Notwithstanding appellant's failure to preserve error, his argument fails. Punishment assessed within the statutory range is not unconstitutionally cruel and unusual. Castaneda, 135 S.W.3d at 723. Here, each sentence was within the statutory punishment range for the offense. See Tex. Health Safety Code Ann. § 481.115 (Vernon 2003); Tex. Penal Code Ann. §§ 12.32, 12.35, 29.03 (Vernon 2003 and Supp. 2008). We overrule issues three through five. Back Time Credit
In his sixth issue, appellant asks that we abate this appeal to determine whether the judgments correctly reflect appellant's back time credit for time spent in SAFPF and waiting to go to SAFPF. After sentencing appellant, the trial court stated it would credit appellant for back time. Each judgment reflected credit for the time appellant was in jail between October 25, 2006 and December 12, 2006 and from July 27, 2007 through September 27, 2007. Appellant did not receive credit for time spent in SAFPF or the time spent in jail waiting to be transferred to SAFPF. We turn first to the time appellant spent in SAFPF. The relevant statutes in effect at the time appellant was placed on community supervision did not allow credit for time spent in SAFPF for a defendant whose community supervision was revoked. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 5.03, 1993 Tex. Gen. Laws 3586, 3747, amended by Act of May 21, 2007, 80th Leg., R.S., ch. 1205, § 1, 2007 Tex. Gen. Laws 4078, 4078 (current version at Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (Vernon Supp. 2008)). As a result, appellant could not receive credit for the time in SAFPF. We note the Texas Legislature amended article 42.03, section 2 of the code of criminal procedure in 2007 to require the trial court to give a defendant credit for time confined in SAFPF, among other programs, as a condition of deferred adjudication community supervision if the defendant successfully completes the treatment program. Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a)(2) (Vernon Supp. 2008). This provision applies only to a defendant who is initially placed on community supervision after September 1, 2007. Act of May 21, 2007, 80th Leg., R.S., ch. 1205, §§ 10-11, 2007 Tex. Gen. Laws 4078, 4081. The amendment is not applicable to appellant both because he was placed on community supervision prior to September 1, 2007 and because he did not successfully complete SAFPF. The only remaining question is whether the trial court intended to give appellant credit for the period from December 13, 2006 through February 7, 2007, when he was in jail waiting to be transferred to SAFPF. A defendant is entitled to credit toward his sentence for time spent in confinement from arrest to sentencing. Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 5.03, 1993 Tex. Gen. Laws 3586, 3747, amended by Act of May 21, 2007, 80th Leg., R.S., ch. 1205, § 1, 2007 Tex. Gen. Laws 4078, 4078 (current version at Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (Vernon Supp. 2008)). But the trial court is not required to give a defendant credit for time spent in confinement as a condition of community supervision. Id.; Ex parte Walker, 150 S.W.3d 429, 431 (Tex.Crim.App. 2004). The trial court has discretion to decide whether a defendant receives credit for such time. Walker, 150 S.W.3d at 432. On this record, we conclude the trial court exercised its discretion not to give appellant credit for the time he spent in jail waiting to be transferred to SAFPF. Accordingly, we deny appellant's request to abate this appeal, and we overrule appellant's sixth issue. In conclusion, we overrule appellant's six issues in both cases and affirm the trial court's judgments.