Rickie L. Jackson v. The State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00199-CR
______________________________
RICKIE LEE JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 29617-B
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Rickie Lee Jackson pled guilty to aggravated assault with a deadly weapon on September 20, 2002. The trial court found him guilty at that time and set sentencing for September 30, 2002. He was sentenced to four years' confinement. Jackson appeals the judgment. We affirm.

In his only claim, Jackson asserts he was denied due process of law based on a statement of the trial court during the September 30 sentencing hearing when Jackson's attorney was examining a witness as follows:

Q Okay. Do you oppose Mr. Jackson getting probation?

A No.

THE COURT: How can he get it? It's a deadly weapon.

[COUNSEL]: It would have to be deferred.

THE COURT: Well, I'm not going to defer it.

A trial court's arbitrary refusal to consider the entire range of punishment available for the violation of a criminal law would constitute a denial of due process. McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983); East v. State, 71 S.W.3d 774, 776-77 (Tex. App.-Texarkana 2002, no pet.).

 

To place this statement into proper context, it is important to note that, ten days before the sentencing hearing, Jackson had entered a plea of guilty to aggravated assault with a deadly weapon. During the plea proceeding, the trial court had admonished Jackson as follows:

THE COURT: Do you also understand that if I make a finding of guilt, and that constitutes an affirmative finding of the use of a deadly weapon, that I have to send you to the penitentiary; I cannot grant probation under those circumstances; do you understand that?

 

RICKIE LEE JACKSON, DEFENDANT: Yes, sir.

 

The trial court found Jackson guilty at the conclusion of the plea of guilty and further found that he used a deadly weapon, namely a firearm. The Texas Code of Criminal Procedure prohibits a trial court from placing a defendant on community supervision if it is shown that a deadly weapon was used or exhibited during the commission of a felony offense. Tex. Code Crim. Proc. Ann. art. 42.12, 3g(a)(2) (Vernon Supp. 2003). At the plea hearing, there was no request for the court to withhold a finding of guilt until the punishment hearing and the court made a finding of guilt with an affirmative finding of the use of a deadly weapon.

We do not find that the trial court arbitrarily refused to consider the full range of punishment in this case. Since the trial court could not place Jackson on "regular" community supervision, the only possibility was deferred adjudication community supervision, which can only be accomplished "without entering an adjudication of guilt." Tex. Code Crim. Proc. Ann. art. 42.12, (5)(a) (Vernon Supp. 2003). Since the trial court had previously adjudicated Jackson's guilt, the option of deferred adjudication community supervision was not available at the time of sentencing. The trial court was never requested to set aside its finding of guilt. The statement of the court during the punishment hearing merely confirmed the procedural posture of the case at that time and a decision that was made ten days earlier-i.e., having previously found Jackson guilty of a felony while using a deadly weapon, as a matter of law, the trial court was not authorized to grant deferred adjudication community supervision.

We affirm the judgment.

 

Jack Carter

Justice

 

Date Submitted: August 27, 2003

Date Decided: August 28, 2003

 

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