Michael Swanson v. State of Texas--Appeal from 7th District Court of Smith County

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NO. 12-01-00132-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

MICHAEL SWANSON,

 
APPEAL FROM THE SEVENTH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

 
SMITH COUNTY, TEXAS
PER CURIAM

Michael Swanson, who was convicted of aggravated assault, appeals the trial court's order of final adjudication in which the trial judge sentenced him to thirty years of confinement. In his sole issue, Appellant contends the trial judge violated his due process rights by imposing a predetermined outcome when, in ruling on the State's motion to adjudicate, he failed to consider continued probation and, instead, automatically sentenced Appellant to a prison term. We affirm.

Appellant pleaded guilty to aggravated assault pursuant to a plea bargain agreement in which the State recommended ten years of deferred adjudication probation. At the plea hearing, the trial judge admonished Appellant that if he received probation and then violated any condition of probation, the trial judge would revoke his probation, adjudicate him guilty, and assess a prison sentence of between twenty-five and ninety-nine years. Two weeks later, the trial judge placed him on deferred adjudication probation for ten years. At that sentencing hearing, the trial judge again told Appellant that if any violation is proven, he would revoke probation and Appellant would be "going away for a very, very long time." Shortly thereafter, the State filed a motion to adjudicate. Both sides presented evidence at the hearing on that motion. The trial judge found that Appellant had violated a condition of probation, adjudicated him guilty of aggravated assault, and sentenced him to thirty years of imprisonment.

In his sole issue, Appellant asserts his due process rights were violated when the trial judge revoked his probation and sentenced him to a prison term. He argues that the trial judge was committed in advance to revoking Appellant's probation and did not impartially consider the evidence and applicable law which allows the court to continue a defendant's probation. Because he had a statutory right to be considered for continued probation, he contends, the trial judge violated his due process rights when he determined, as early as the plea hearing, that he would not consider anything other than a prison term.

At the time Appellant filed his brief, he did not have the benefit of Hull v. State, No. 1812-00, 2002 Tex. Crim. App. LEXIS 16 (Tex. Crim. App. Jan. 30, 2002). There, Hull asserted the same complaint as Appellant and the court of criminal appeals held that an appellant may not raise this complaint for the first time on appeal. Id. at *7. Here, Appellant did not object at any time, in any of the various proceedings, to the trial judge's statements that he would revoke probation if any violation were proved. Accordingly, Appellant's complaint is waived. We overrule his sole issue.

We affirm the trial court's order.

Opinion delivered February 28, 2002.

Panel consisted of Davis, C.J. and Worthen, J.

Griffith, J., not participating.

 
(DO NOT PUBLISH)