Bobby Doyle Getts v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-98-229-CR

BOBBY DOYLE GETTS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 96-522-C

O P I N I O N

A man was sentenced to 10 years in prison and placed on community supervision for 10 years. Within three months, his conditions of community supervision were modified. Within a year, his community supervision was revoked, and he was sentenced to the original 10 years in prison. He complains in one issue on appeal that his right to due process was violated because the trial court failed to consider evidence, failed to consider the full range of punishment, and predetermined his punishment at the maximum sentence. We affirm the trial court s judgment.

Background

Bobby Doyle Getts pled guilty to the offense of Felon in Possession of a Firearm and was sentenced to 10 years in prison and a $500 fine. His sentence was suspended, and Getts was placed on community supervision. Three months later, the State filed a motion to revoke Getts s community supervision alleging that Getts failed to abide by his curfew, consumed alcohol, committed assault, and failed to pay court costs and other fees. The community supervision was modified to require attendance and participation in two programs. Getts was also ordered to remain in the McLennan County jail for 60 days as a term of his community supervision and was allowed to participate in the work release program.

Getts was withdrawn from the work release program when he returned with the odor of an alcoholic beverage on his breath. He completed the remainder of his 60 day term in the McLennan County Jail, and on the day he was released, less than one year after he was placed on community supervision, Getts consumed alcohol, committed the offense of driving while intoxicated, and missed his curfew. The State filed another motion to revoke based on Getts s actions on the day of his release from jail and on other violations of his community supervision which are irrelevant to the determination of his issue on appeal. At the hearing on the State s motion, Getts pled true to consuming alcohol and to driving while intoxicated. He pled not true to the other violations.

The State presented evidence at the hearing of the driving while intoxicated offense. The State also presented evidence of Getts s behavior while on community supervision through his community supervision officer. The officer recommended that Getts s community supervision be revoked. The officer testified that Getts had been in an alcohol rehabilitation program but was advised that Getts was not interested in participating in the program. Getts testified that he had a problem with alcohol and wanted one last chance to abide by the terms of his community supervision. Getts wanted to move out of state to live with his parents and raise his children. He asked to have his community supervision modified, not revoked. Other witnesses for Getts testified that he needed treatment and that he was a good worker when not drinking.

At the end of the hearing, the State recommended a full revocation. After hearing the testimony and argument of counsel, the trial court found that Getts had violated conditions of his community supervision by consuming alcohol, driving while intoxicated, and missing curfew. The trial court revoked Getts s community supervision. Before the trial court pronounced the sentence, Getts pled for his freedom; however, the court sentenced Getts to 10 years in prison and a fine of $500.

On appeal, Getts argues that his right to due process was violated because the trial court admonished him at the beginning of the hearing with the following statement:

Mr. Getts, if the Court finds any of the allegations contained in the State s Motion to Revoke Probation, the Court can do one of two things. The Court can either in some way modify the terms and conditions of your probation, and as modified continue you on probation, or the Court can revoke your probation and sentence you to 10 years in the penitentiary and a fine of $500.

He contends that the trial court failed to consider mitigating evidence, failed to consider the full range of punishment, and arbitrarily imposed a predetermined sentence which was the maximum punishment.

Applicable Law

The Code of Criminal Procedure provides that if a defendant is found to have violated any of the conditions of community supervision, the trial court may, after a hearing and without a jury, continue, extend, modify, or revoke the community supervision. Tex. Code Crim. Proc. Ann. art. 42.12 21(b) (Vernon Supp. 2000). If the community supervision is revoked, the trial court may:

proceed to dispose of the case as if there had been no community supervision, or if the judge determines that the best interest of society and the defendant would be served by a shorter term of confinement, reduce the term of confinement originally assessed to any term of confinement not less than the minimum prescribed for the offense of which the defendant was convicted.

Id. 23(a). Upon revoking the community supervision, the trial court may not impose a term of confinement greater than the sentence originally imposed. Weed v. State, 891 S.W.2d 22, 23 (Tex. App. Fort Worth 1995, no pet.). The only question presented in an appeal from an order revoking probation is whether the trial court abused its discretion. Id. at 24; see also Lloyd v. State, 574 S.W.2d 159, 160 (Tex. Crim. App. [Panel Op.] 1978).

Preservation of Complaint

The State maintains in its brief that Getts failed to preserve his complaint on appeal by failing to object. It is a general rule that appellate courts will not consider any error which counsel for the accused could have called, but did not call, to the attention of the trial court at the time when such error could have been avoided or corrected by the trial court. Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim. App. [Panel Op.] 1981)(op. on reh g); Cole v. State, 931 S.W.2d 578, 580 (Tex. App. Dallas 1995, pet. ref d); Cole v. State, 757 S.W.2d 864, 866 (Tex. App. Texarkana 1988, pet. ref d). This rule applies to errors of constitutional dimension and applies in appeals from orders revoking community supervision. Rogers, 640 S.W.2d at 265. Thus, a defendant waives any alleged due process complaints when he does not object. Id.; Cole, 931 S.W.2d at 580.

In this case, Getts did not object to the alleged due process violations committed by the trial court when imposing punishment. // He also did not complain of these deficiencies in a motion for new trial. Because he failed to object, Getts waived any complaint. See Cole, 931 S.W.2d at 580; Cole, 757 S.W.2d at 866. See also Tex. R. App. P. 33.1(a). Getts s sole issue is overruled.

Conclusion

Having overruled Getts s sole issue on appeal, the trial court s judgment is affirmed.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed January 26, 2000

Do not publish