ANTONIO ALEMAN v. THE STATE OF TEXAS--Appeal from 156th District Court of Bee County

NUMBER 13-05-602-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

ANTONIO ALEMAN, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 156th District Court of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Ya ez, and Garza
Memorandum Opinion by Justice Ya ez

By a single issue, appellant, Antonio Aleman, contends the trial court abused its discretion by assessing his punishment at five years' imprisonment, rather than assigning him to the Substance Abuse Felony Punishment Facility (SAFPF), following the revocation of appellant's deferred adjudication community supervision. We affirm.

Background

Without a plea bargain agreement, on January 8, 1998, appellant pleaded nolo contendere to the offense of aggravated assault. (1) The trial court deferred adjudication, placed appellant on deferred adjudication community supervision for six years, and sent him to the SAFPF.

The State filed a motion to revoke appellant's community supervision on November 3, 2000, and an amended motion to revoke on August 15, 2002, alleging various violations of appellant's community supervision. At a hearing on August 29, 2002, appellant pleaded "true" to the allegations in the State's motion. The trial court did not revoke appellant's community supervision, but extended it for an additional two years (through January 8, 2006), and assigned appellant to the SAFPF.

On August 16, 2005, the State filed a motion to revoke appellant's community supervision based on several alleged violations of the terms of his community supervision. At a hearing on August 30, 2005, appellant pleaded "true" to the alleged violations. The trial court adjudicated him guilty, revoked his community supervision, and sentenced him to five years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice.

In his sole issue, appellant contends the trial court abused its discretion by sentencing him to imprisonment rather than ordering him to the SAFPF.

Standard of Review and Applicable Law

We review a sentence imposed by the trial court for abuse of discretion. (2) Article 42.12, section 5(b) of the code of criminal procedure provides that no appeal may be taken from a trial court's determination to proceed with adjudication of guilt. (3) However, an appeal may be taken to challenge the assessment of punishment and assessment of sentence. (4) It is a general rule that as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal. (5)

Analysis

At the punishment hearing, appellant told the court: "I would rather I go to treatment outpatient instead of going to TDC. I feel that TDC is not going to help me out." A moment later, in response to a question from his counsel regarding what sentence appellant would recommend if the trial court decided to sentence him to prison, appellant said, "I mean, I don't want to go to the penitentiary. It's just [the trial judge's] discretion." Shortly thereafter, the trial court found appellant guilty and sentenced him to five years' imprisonment.

Here, the sentence imposed by the trial court was within the statutorily permissible range. (6) Accordingly, we hold that the trial court did not abuse its discretion in imposing the sentence. (7)

We overrule appellant's sole issue and affirm the trial court's judgment.

 

LINDA REYNA YA EZ,

Justice

 

Do not publish. Tex. R. App. P. 47.2(b).

 

Memorandum opinion delivered and filed

this the 10th day of August, 2006.

1. See Tex. Pen. Code Ann. 22.02 (Vernon Supp. 2005). Although section 22.02 has been amended, the amendments are inapplicable here; thus we cite to the current version of the statute.

2. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).

3. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2005); see also Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992).

4. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2005); Olowosuko, 826 S.W.2d at 942.

5. Jackson, 680 S.W.2d at 814.

6. See Tex. Pen. Code Ann. 22.02(a)(2) (Vernon Supp. 2005); id. 12.33 (Vernon 2003).

7. See Jackson, 680 S.W.2d at 814.