Larry D. Lacy v. The State of Texas--Appeal from 3rd District Court of Anderson County

NO. 12 05-00290-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LARRY D. LACY, APPEAL FROM THE THIRD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Larry D. Lacy appeals the trial court s order revoking his deferred adjudication community supervision. In one issue, Appellant challenges the harshness of the punishment assessed by the trial court. We affirm.

Background

Appellant was charged by three separate indictments for offenses arising out of the same criminal episode. On January 28, 2002, he pleaded guilty to each of the three charges of burglary of a habitation, a second degree felony. In each case, the trial court found that the evidence substantiated Appellant s guilt, but deferred a finding of guilt, placed him on community supervision for ten years, and assessed a $1,000.00 fine. On November 20, 2002, the State filed motions to adjudicate and revoke Appellant s community supervision based on its assertions that Appellant had violated the terms and conditions of his community supervision. After Appellant paid the arrearage on fines, costs, and restitution owed, the motion was dismissed, but Appellant s community supervision requirements were modified to reflect that he would be required to report twice a month for one year. On September 25, 2003, Appellant s community supervision requirements were modified to reflect that he would be required to report each Wednesday for community service.

On May 10, 2005, the State again filed motions to adjudicate and revoke Appellant s community supervision based on its assertions that Appellant had violated the terms and conditions of his community supervision. Specifically, the State asserted that Appellant violated the conditions of his community supervision by failing to abstain from the use of narcotic drugs, namely cocaine; failing to report to the community supervision officer as required; and failing to pay court costs, probation fees, restitution, and fines. The court conducted a hearing on the motion on July 28, 2005.

At the hearing, Appellant pleaded not true to the allegations in the revocation motion in each of the three causes. The State called a community supervision officer who testified about Appellant s failure to comply with the terms of his community supervision as alleged in the revocation motions. Appellant then testified on his own behalf. The court found that Appellant violated the terms and conditions of his community supervision and found him guilty of burglary of a habitation in all three cases. Consequently, the court revoked Appellant s community supervision and sentenced him to fourteen years of imprisonment in each of the three cases, to run concurrently. Appellant filed a motion for new trial, which was overruled as a matter of law. This appeal followed.1

Failure to Cite Authority

In a single issue, Appellant contends that the punishment assessed by the trial court is too harsh.

A trial court s decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable. Connolly v. State, 983 S.W.2d 738, 740 (Tex. Crim. App. 1999). However, because the issue in this case concerns an abuse of discretion in sentencing and is an issue raised after the determination of adjudication, this court has jurisdiction to review Appellant s issue. See McGee v. State, 124 S.W.3d 253, 256 (Tex. App. Fort Worth 2003, pet. ref d).

Appellant was represented by counsel on appeal. The following is Appellant s single issue and the corresponding argument set forth in its entirety:

Point of Error No. 1 The Court erred when it assessed a harsh punishment of fourteen years in Texas Department of Criminal Justice, on Motion to Proceed to Adjudication for violation of community supervision in three cases, being Cause Nos. 25926, 25927 and 25928. CR CR46-68, CR54-56, RR P31 L14-25 and RR P32 L1-3.

ARGUMENT

Appellant was adjudicated guilty and sentenced to fourteen years in Texas Department of Criminal Justice[.] CR CR46-48, CR54-56, RR P31 L14-25 and RR P32 L1-3. Appellant stated that he was unable to pay fees and costs because he could not secure a job and he had failed a drug test because of a fluke condition. RR P21 L8-14. This apparently was his first drug test failure. He did not intentionally not make payments, but he could not afford to pay because he did not have a job. RR P20 L20-25. Appellant had good intentions to complete his probation. He testified that he does not use cocaine and he does not drink alcohol. RR P21 L16-20. Appellant s family needs him to help support them. RR P21 L21-25 and P22 L1-2.

An appellant s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. See Tex. R. App. P. 38.1(h). Failure to cite authority in support of an issue waives the complaint. See Smith v. State, 959 S.W.2d 1, 17 (Tex. App. Waco 1997, pet. ref d) (citing Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995); see also Allen v. State, No. 12-01-00079-CR, 2003 WL 1090366, at *3 (Tex. App. Tyler March 12, 2003, no pet.) (not designated for publication). Here, Appellant wholly failed to make reference to any authority supporting the issue he raised on appeal. Rather, Appellant listed various record references under the caption of Index of Authorities. Presumably, Appellant was aware of the mandate set forth in Rule 38.1(h) since he cited to portions of the record throughout his brief. But Rule 38.1(h) clearly requires citations both to authorities and to the record. Tex. R. App. P. 38.1(h). Accordingly, we hold that by his failure to comply with Rule 38.1(h), Appellant waived his complaint on appeal.

Even if Appellant had not waived his complaint, the result would not differ. Courts have repeatedly held that punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983). Here, Appellant pleaded guilty to burglary of a habitation, a second degree felony. See Tex. Pen. Code Ann. 30.02 (Vernon 2003). The punishment range for such an offense is between two and twenty years. See Tex. Pen. Code Ann. 12.33(a). In this case, the trial court assessed punishment at fourteen years, which falls well within the range set forth by the legislature. Id. Therefore, the punishment is not prohibited as cruel, unusual, or excessive per se. We overrule Appellant s single issue.

 Disposition

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

SAM GRIFFITH

Justice

Opinion delivered April 28, 2006.

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

(DO NOT PUBLISH)

1 Appellant failed to timely file notices of appeal on the other two cases (trial court Cause Numbers 25927 and 25928). Consequently, we dismissed those appeals for want of jurisdiction on December 14, 2005. See Lacy v. State, Nos. 12-05-00291-CR, 12-05-00292-CR, 2005 WL 3434039 (Tex. App. Tyler Dec. 14, 2005, no pet.) (not designated for publication).