Debra Ruth Reyna v. The State of Texas--Appeal from 124th District Court of Gregg County

NO. 12-05-00062-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DEBRA RUTH REYNA, APPEAL FROM THE 124TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE GREGG COUNTY, TEXAS

MEMORANDUM OPINION

Debra Ruth Reyna appeals her conviction for possession of between four and two hundred grams of cocaine, for which she was sentenced to imprisonment for ten years. Appellant raises one issue on appeal. We affirm.

Background

Appellant was charged with possession of between four and two hundred grams of cocaine and possession of between four and two hundred grams of cocaine with intent to deliver. Without a plea bargain, Appellant pleaded guilty to the simple possession charge. The trial court did, however, entertain recommendations concerning punishment from the State. Appellant did not request a presentence investigation report. Following a hearing on punishment, the trial court sentenced Appellant to imprisonment for ten years. This appeal followed.

Failure to Grant Community Supervision

In her sole issue, Appellant contends that the trial court abused its discretion in failing to grant Appellant s application for community supervision. We initially note that Appellant made no objection to the sentence assessed by the trial court and has, therefore, waived such an issue on appeal. See Tex. R. App. P. 33.1(a)(1)(A). Nonetheless, even had Appellant properly preserved error, the outcome would not differ.

A judge, in the best interest of justice, the public, and the defendant, after conviction or a plea of guilty or nolo contendere, may suspend the imposition of the sentence and place the defendant on community supervision. Tex. Code Crim. Proc. Ann. art. 42.12 3(a) (Vernon 2004 05). We do not read Article 42.12, section (3)(a) to mandate that the trial court place a defendant on community supervision. Id.

Yet Appellant argues that this court should not sanction such an unjustified incarceration and urges that we remand the cause for a proper presentence report and a resulting sentence that is supported by a record of the trial court s findings and conclusions. However, Appellant did not request a presentence investigation report at trial. The trial court, therefore, was not required to direct the preparation of such a report. See Tex. Code Crim. Proc. Ann. art. 42.12 9(g)(2) (Vernon 2004 05).

In support of her argument, Appellant cites Lindley v. State, 24 S.W.3d 435, 437 38 (Tex. App. Texarkana 2000, no pet.) in which the court of appeals stated as follows:

It is within the authority of the trial judge to ignore the recommendation of the State. However, we should point out that one of the objectives of the system of prohibitions, penalties, and correctional measure in the Penal Code is the rehabilitation of those convicted of violations of the code. It is the duty of the trial court to prescribe penalties that are proportioned to the seriousness of the offense and permit recognition of differences in rehabilitation possibilities among individual defendants. [Citation omitted].

It would be irresponsible for our Court to ignore the crowding of the penal facilities and the need for drug treatment. We are also aware of the wide and inconsistent sentencing in Texas and also that the commission of violent crimes often receives a lighter sentence than nonviolent crimes.

We urge the Legislature to consider the possibility of enacting sentencing guidelines that would create more consistency in sentencing in Texas. This would enhance our system of justice in the view of the public as well as in fairness to the defendants.

Id. The court of appeals in Lindley affirmed the trial court s judgment, upholding the forty-five year sentence imposed, and holding that it was within the authority of the trial judge on an open plea of guilty to ignore the punishment recommendation of the State. Id. Thus, the holding in Lindley does not support Appellant s contention that we should reverse this cause.

Here, Appellant has made no argument that the punishment imposed on her amounted to cruel and unusual punishment. See Tex. R. App. P. 33.1(a)(1)(A). Moreover, Appellant concedes that her ten-year sentence was within the statutorily prescribed range. See Tex. Health & Safety Code Ann. 481.102(3)(D); 481.115(a), (d) (Vernon 2003 & Supp. 2004 05); Tex. Pen. Code Ann. 12.33(a) (Vernon 2003). Therefore, we hold that the trial court did not err in refusing to grant Appellant s application for community supervision. Appellant s sole issue is overruled.

Disposition

Having overruled Appellant s sole issue, we affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered August 24, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)