DOMINIQUE RASHAD FRAZIER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed October 25, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-00353-CR
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DOMINIQUE RASHAD FRAZIER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-60550-N
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MEMORANDUM OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Fillmore
        Dominique Rashad Frazier waived a jury and pleaded guilty to aggravated assault with a deadly weapon, a knife. See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (West Supp. 2009). After finding Frazier guilty, the trial court assessed punishment at eight years' imprisonment. In two issues, Frazier contends the trial court violated his constitutional right to due process and abused its discretion by sentencing him to imprisonment. We affirm the trial court's judgment. The background of this case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.
        In his first issue, Frazier contends the trial court violated his right to due process under the United States and Texas Constitutions by refusing to consider the full range of punishment. See U.S. Const. Amend. VIII, XIV; Tex. Const. Art. I, § 13. In his second issue, Frazier contends the trial court abused its discretion and violated the rehabilitative objectives of the penal code by sentencing him to imprisonment because the sentence is not necessary to prevent the recurrence of his criminal behavior. Frazier argues he asked for, and should have received, probation and drug treatment for his longstanding drug addiction. The State responds that Frazier failed to preserve his complaints for appellate review and, alternatively, the trial court properly exercised its discretion in assessing Frazier's sentence.
        Frazier did not complain about the sentence either at the time it was imposed or in his motion for new trial. Thus, Frazier has not preserved his issues for our review. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.) (for error to be preserved for appeal, the record must show appellant made a timely request, objection, or motion).
        Even if Frazier had preserved error, his arguments still fail. In his first issue, Frazier asserts the trial court violated his right to due process by failing to consider the entire range of punishment. Specifically, Frazier contends the trial court excluded the possibility of probation when it “dismissed out of hand” an evaluation recommending that Frazier receive drug treatment. In support of his argument, Frazier points to his testimony that the “CATS evaluation people” told him “there was a place that I could get treatment rather than get sent to TDC.” The trial court then stated, “They say that about everybody, including people who killed 15 people. Go ahead. Let's finish.” Frazier argues this statement shows the trial court had decided to sentence him to prison regardless of what was stated in the evaluation.         Due process requires the trial court conduct itself in a neutral and detached manner. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). “[A] trial court's arbitrary refusal to consider the entire range of punishment in a particular case violates due process.” Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005) (per curiam); see also Brumit, 206 S.W.3d at 645. However, absent a clear showing that the trial court did not consider the full range of punishment, we presume the trial court's actions were correct. Brumit, 206 S.W.3d at 645.
        The one comment by the trial court relied on by Frazier does not reflect the trial court failed to consider the full range of punishment. Rather, it indicates the trial court was familiar with the CATS evaluation, but was not basing its punishment decision solely on the recommendation in the evaluation. Frazier pleaded true to committing the offense. The trial court also heard evidence of the severity of the crime, Frazier's extensive criminal history, Frazier's failure to successfully complete a previous probated sentence, and Frazier's failure to receive treatment for his addiction. The record does not clearly reflect the trial court failed to consider the entire range of punishment and, therefore, fails to support Frazier's due process claim.
        In his second issue, Frazier complains the trial court abused its discretion by sentencing him to prison. However, the trial court imposed punishment within the statutory range for the offense. See Tex. Penal Code Ann. §§ 12.32, 22.02(b)(1) (West Supp. 2009); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). As a general rule, punishment that is assessed within the statutory range for the offense will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal).
        We resolve Frazier's two issues against him and affirm the trial court's judgment.
 
 
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
100353F.U05