Jimmie Richardson v. State

Opinion issued May 3, 2007 In The Court of Appeals For The First District of Texas NO. 01-06-01029-CR JIMMIE RICHARDSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 339th District Court Harris County, Texas Trial Court Cause No. 984008 MEMORANDUM OPINION In one issue, appellant, Jimmie Richardson, contends that the trial court abused its discretion when assessing his punishment following an adjudication of guilt. We affirm. Background Appellant was originally charged with aggravated assault of a family member, enhanced by two prior felony drug convictions. The case proceeded to trial. The jury deadlocked and the trial court declared a mistrial. The State abandoned the enhancement paragraphs and reduced the charge to attempted aggravated assault, to which appellant pleaded nolo contendere without an agreed recommendation. The trial court placed appellant on deferred adjudication community supervision for four years and assessed a $500 fine. The State later filed a motion to adjudicate appellant's guilt, alleging that appellant had not complied with a number of the terms of his community supervision, including attending domestic violence counseling, reporting to his probation officer, submitting a urine sample when requested, and failing to pay various fees. Appellant pleaded "not true" to the allegations. The trial court conducted a hearing on the motion to adjudicate at which it found the allegations in the State's motion to be true and found appellant guilty of attempted aggravated assault. Following its decision to adjudicate, the trial court immediately conducted a punishment hearing. The parties agreed that the evidence offered during the adjudication proceeding would be considered "offered" for purposes of the sentencing proceeding, subject to prior objections. No further evidence was offered. At the conclusion of the punishment proceeding, the trial court sentenced appellant to 10 years in prison. Punishment Complaint Appellant frames his sole point as follows: "The record demonstrates that in the circumstances of appellant's case it was an abuse of discretion to sentence him to the maximum punishment of ten years imprisonment, upon adjudication of his guilt." (1) Appellant points to "the lack of evidence in the record supporting the assessment of the maximum punishment." (2) Appellant made no objection to his sentence in the trial court, either at the time of sentencing or in any post-trial motion. To preserve error for appellate review, the complaining party must first present his complaint to the trial court by a timely, specific objection, request, or motion. See Tex. R. App. P. 33.1; Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001). We have previously held that a defendant must raise a complaint regarding the excessiveness of his sentence in the trial court to preserve the issue for appeal. See Solis v. State, 945 S.W.2d 300, 301 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). More specifically, other appellate courts have held, in cases involving challenges to sentences following an adjudication of guilt, that a defendant's failure to raise his objection to the sentence in the trial court forfeits the complaint on appeal. See Hergert v. State, 197 S.W.3d 394, 399 (Tex. App.--Beaumont 2006, no pet.); Trevino v. State, 174 S.W.3d 925, 927-28 (Tex. App.--Corpus Christi 2005, pet. ref'd). Because he did not bring his sentencing complaint to the trial court's attention by timely objection, request, or motion, appellant has not preserved this complaint for our review. See Hergert, 197 S.W.3d at 399; Trevino, 174 S.W.3d at 927-28; see also Tex. R. App. P. 33.1; Solis, 945 S.W.2d at 301. We overrule appellant's sole point of error. Conclusion We affirm the judgment of the trial court. Laura Carter Higley Justice Panel consists of Justices Nuchia, Keyes, and Higley. Do not publish. Tex. R. App. P. 47.2(b). 1. Attempted aggravated assault is a third-degree felony. See Tex. Pen. Code Ann. §§ 15.01, 22.02 (Vernon 2003 & Supp. 2006). The punishment range for a third-degree felony is 2 to 10 years in prison and a fine not to exceed $10,000. Id. § 12.34 (Vernon 2003). 2. A defendant may appeal from a judgment adjudicating guilt when the issue raised on appeal relates, not to the adjudication decision, but to the punishment phase. See Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001). The asserted error must directly and distinctly concern the punishment phase; "the claim must, on its face, relate to the sentence imposed, not to the decision to adjudicate." Hogans v. State, 176 S.W.3d 829, 834 (Tex. Crim. App. 2005) . Here, the asserted error is that the trial court abused its discretion by assessing the maximum sentence when the evidence offered did not support the maximum sentence. Because it relates directly to the punishment phase, we have jurisdiction to consider the alleged error. See Trevino v. State, 174 S.W.3d 925, 927 (Tex. App.--Corpus Christi 2005, pet. ref'd) (holding that appellant's contention that trial court erred by assessing disproportionate sentence to offense was challenge over which appellate court had jurisdiction because it was unrelated to the decision to adjudicate guilt). To the extent that appellant, in part, supports his sentencing challenge by attacking the trial court's decision to adjudicate, such argument may not be considered in support of his challenge.