EDWIN MARULANDA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed October 30, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00186-CR
............................
EDWIN MARULANDA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-81110-06
.............................................................
OPINION
Before Chief Justice Thomas and Justices Mazzant and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Edwin Marulanda appeals from the trial court's order revoking his community supervision and sentencing him to two years' confinement in a state jail facility for theft. In August 2006, appellant pleaded guilty to theft of property of a value between $1500 and $20,000. His punishment was assessed at two years' confinement in a state jail and a fine of $500. The trial court suspended imposition of appellant's sentence and placed him on community supervision for a period of three years. In August 2007, the State moved to revoke appellant's community supervision. In its motion, the State alleged seven violations as grounds for revocation, including the allegation that appellant had committed another offense while on community supervision. Technical violations were also alleged. Appellant pleaded true to the allegations and was sentenced to two years' confinement.
        Appellant now appeals, raising a sole issue: whether the trial court abused its discretion by arbitrarily refusing to consider the entire range of punishment before sentencing him. Concluding no reversible error is shown, we affirm the trial court's judgment.
        At the beginning of the January 3, 2008 revocation hearing, the following occurred between the trial judge and appellant:   See Footnote 2 
THE COURT: Okay. Are you Edwin Marulanda?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: You're here with your attorney; is that correct?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Have you had enough time to talk to him?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Do you feel like you understand why we're here?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: I understand that you plan to plead true to the State's motion to revoke your probation; is that correct?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: On August 24, 2006, you plead guilty to the offense of theft and received two years in the penitentiary - or two years in the state jail facility, and that was suspended for a period of three years.
        Since that time the State has filed a motion to revoke your probation and the reason I bring up your plea is I want you to understand on your plea of true, I can find the allegations to be true, and I could sentence you to two years in a state jail facility, do you understand?
THE DEFENDANT: Yes, sir.
 
THE COURT: Do you understand you have a right to have a hearing with regard to all seven of the allegations being made by the State?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: If we had a hearing, do you understand you'd be allowed to call witnesses to testify on your behalf?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Do you understand you'd be allowed to cross-examine any witnesses the State might bring?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Do you understand if you plead true, you give up those rights?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Let me hand to your attorney and to you a document. I'm going to ask you to take a look at that document and then I'll ask you some questions.
 
(Hands document to attorney)
 
THE COURT: Are you familiar with this document?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Did you sign it?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Was your attorney present when you signed it?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Do you feel like you understand it?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: You understand that the stipulation of facts that you've made is the same thing as a judicial confession, that you either did or failed to do all seven of the things the State alleges?
THE DEFENDANT: Yes, sir.
 
THE COURT: You understand the waiver of rights that you've signed gives up your right to have the hearing that we've talked about?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Knowing everything I've told you, do you still want to plead true?
 
THE DEFENDANT: Yeah.
 
THE COURT: To these seven allegations, how do you plead true or not true?
 
THE DEFENDANT: True.
 
THE COURT: Are you pleading true because they are true and for no other reason?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Are you pleading true freely and voluntarily?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Did anybody offer you anything to get you to plead true?
 
THE DEFENDANT: No, sir.
 
THE COURT: Did anybody promise you anything to get you to plead true?
 
THE DEFENDANT: No, sir.
 
THE COURT: Arraign the defendant.
 
        On appeal, appellant asks whether the trial court abused its discretion by arbitrarily refusing to consider the entire range of punishment before sentencing him. Appellant argues it is a denial of due process for the court to arbitrarily refuse to consider the entire range of punishment for an offense or to refuse to consider the evidence and impose a predetermined punishment. See Jefferson v. State, 803 S.W.2d 470, 471 (Tex. App.-Dallas 1991 pet. ref'd) (citing McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983), overruled on other grounds by De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004)).         Appellant concludes, based on the italicized language above, that “[c]learly, before any evidence was presented, the Court advised Mr. Marulanda what punishment he would be imposing. Thus, it would have made no difference as to whether or not Mr. Marulanda presented evidence whereby the Court determined its sentence prior to Mr. Marulanda's testimony. Such a determination denied Appellant of due process of law [sic].” And anticipating the State's argument that error was not preserved, appellant contends the trial court's comments amounted to fundamental error, requiring no objection at all. Appellant relies primarily on Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) and Howard v. State, 830 S.W.2d 785, 787 (Tex. App.-San Antonio 1992, pet. ref'd) (concluding that the record supported the defendant's claim that the trial court never considered a lesser sentence than 99 years when it commented, “as far as I'm concerned, you can go to TDC for 99 years and stay there, do you understand that?”).
        The State's response is, as appellant anticipated, that his complaint was not preserved for our review for lack of an objection to the trial court's admonishments or his punishment. The State further argues the record contains no indication the trial court did not consider the full range of punishment-that it merely admonished appellant he would be subject to the full range of punishment if he persisted in his plea of true. We agree with each of the State's contentions: error was not preserved in the trial court for lack of an objection and, moreover, even if error was preserved, the record contains no evidence the trial court did not consider the full range of punishment.
        Although appellant did testify in his own behalf, his testimony did not amount to mitigating evidence. Appellant confirmed that he knew he was making an open plea of true to the allegations in the State's motion to revoke and that he was doing so freely and voluntarily, because the allegations were true, and for no other reason. He also confirmed that he understood the trial judge could sentence him anywhere within the range of punishment that the trial judge so desired. He then testified to how long he had been in custody and asked the court “to grant [him] [his] back time and go ahead and move forward. . . .”
        The proper standard of review of a trial court's decision concerning revocation of a defendant's probation is one of abuse of discretion. Forrest v. State, 805 S.W.2d 462, 464 n.2 (Tex. Crim. App. 1991). This includes the trial court's decision of whether a reduction in punishment is warranted. Cannon v. State, 537 S.W.2d 31, 32 (Tex. Crim. App. 1976).
        Having reviewed the authorities cited by appellant concerning fundamental error, we are unpersuaded the error he claims is fundamental error. As such, it was necessary for appellant to have preserved error in the trial court. Because the record shows appellant did not preserve error, nothing is presented for our review. Moreover, even if error was preserved, the record before us shows no evidence the trial court abused its discretion by arbitrarily refusing to consider the entire range of punishment before sentencing appellant. Appellant has failed in his burden to show he was denied due process. We, therefore, resolve appellant's issue against him. We affirm.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
080186F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 We quote generously from the record to give context to the trial court's italicized comments about which appellant complains.