Ken Carmichael Lawson v. The State of Texas--Appeal from 114th District Court of Smith County

NOS. 12-05-00175-CR

12-05-00213-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KEN CARMICHAEL LAWSON, APPEAL FROM THE 114TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Ken Carmichael Lawson appeals the trial court s orders in two separate causes revoking his community supervision. Appellant raises two issues on appeal in each cause. We affirm.

Background

Appellant was charged with one count of possession of a controlled substance and a separate charge of possession of a controlled substance in a penal institution. Appellant pleaded guilty in both causes. The trial court deferred finding Appellant guilty of the charge of possession of a controlled substance and placed Appellant on community supervision for ten years in that cause.1 The trial court adjudicated Appellant guilty of the charge of possession of a controlled substance in a penal institution and sentenced him to imprisonment for ten years, but probated Appellant s sentence and placed him on community supervision for ten years.

On March 2, 2005, the State filed a motion to revoke Appellant s community supervision in each cause alleging that Appellant violated certain terms thereof. Specifically, the State contended, among other things, that Appellant had violated his community supervision in each cause in that he failed to obey the law by intentionally possessing a useable quantity of marijuana.

On March 22, 2005, a hearing was conducted on the State s motions. Appellant pleaded not true to the aforementioned allegation. Appellant further moved to suppress evidence seized during the incident that gave rise to the State s motion to revoke his community supervision. The trial court overruled Appellant s motion. Following the presentation of evidence, the trial court found the allegation in the State s motion regarding Appellant s possession of marijuana to be true, adjudicated Appellant guilty of possession of a controlled substance, revoked Appellant s community supervision in that cause, and sentenced Appellant to imprisonment for fifty years. The trial court further revoked Appellant s community supervision with regard to his conviction for possession of a controlled substance in a penal institution and sentenced Appellant to imprisonment for ten years in that cause. Appellant filed a motion for new trial in both causes. The trial court declined to hold a hearing on Appellant s motions, each of which was overruled by operation of law. This appeal followed.

Issues Presented

Appellant raises the same two issues in each cause. In his first issue, Appellant argues that the trial court erred in failing to conduct a hearing on his motion for new trial. In his second issue, Appellant argues that the trial court erred in overruling his motion to suppress. We will first address Appellant s issues as they pertain to the appeal of the trial court s revocation of Appellant s deferred adjudicated community supervision. We will then address Appellant s issues as they pertain to the appeal of the trial court s revocation of Appellant s community supervision concerning his conviction for possession of a controlled substance in a penal institution.

Appeal of Revocation of Deferred Adjudication Community Supervision

Texas Code of Criminal Procedure Article 42.12, section 5(b) governs the situation at issue with regard to Appellant s second issue. Article 42.12, section 5(b) states as follows:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.

Tex. Code Crim. Proc. Ann. art. 42.12 5(b) (Vernon Supp. 2005) (emphasis added).

In Connolly v. State, 983 S.W.2d 738 (Tex. Crim. App. 1999), the court of criminal appeals reiterated a long line of cases dealing with situations similar to the instant case. See Connolly, 983 S.W.2d at 740 41 (citing Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992) (explaining that court of criminal appeals had held from the beginning of deferred adjudication practice that the Legislature [had] meant what it said in Article 42.12 5(b) ); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (on appeal of trial court s decision to revoke community supervision and adjudicate, even if the appellant s right to counsel had been violated, the appellant could not use direct appeal as the vehicle with which to seek redress); Wright v. State, 592 S.W.2d 604, 606 (Tex. Crim. App. 1980) (under the terms of the statute, no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979) (trial court s decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable)). The court continued:

In all these cases, we have tried to make clear that, given the plain meaning of Article 42.12 5(b), an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process. [citation omitted]. Moreover, since the legislature has not overturned our interpretation of the statute after all these years, we are confident that our interpretation is correct. See State v. Hall, 829 S.W.2d 184, 187 (Tex. Crim. App. 1992) (prolonged legislative silence following judicial interpretation of statute implies approval of interpretation).

 Connolly, 983 S.W.2d at 741.

In our view, given the factual similarities between Connolly, its progeny, and the case at hand, the holdings in Connolly and the cases cited therein control the instant case as it relates to the trial court s decision to proceed to adjudication. Considering the plain meaning of article 42.12, section 5(b) and the long line of authority from the court of criminal appeals on the issue, we hold that Appellant cannot raise the issue related to the trial court s overruling his motion to suppress, insofar as that issue arises out of the trial court s decision to proceed with the adjudication of guilt. Therefore, since Appellant s second issue relates to the trial court s decision to proceed with adjudication, we lack jurisdiction to consider it.

 Failure to Conduct a Hearing on Motion for New Trial

In his first issue, Appellant argues that the trial court erred in allowing his motion for new trial to be overruled by operation of law without conducting a hearing because his motion was based on newly discovered evidence.2 A motion for new trial is a prerequisite to presenting an issue on appeal when necessary to adduce facts not in the record. See Tex. R. App. P. 21.2.

Standard of Review

It is within the trial court's sound discretion to grant or deny a motion for new trial. Waller v. State, 931 S.W.2d 640, 644 (Tex. App. Dallas 1996, no pet). We do not disturb the trial court s decision unless it abused its discretion. Id.; see Appleman v. State, 531 S.W.2d 806, 810 (Tex. Crim. App. 1976) (op. on reh g); State v. Gonzalez, 820 S.W.2d 9, 11-12 (Tex. App. Dallas 1991), aff d, 855 S.W.2d 692 (Tex. Crim. App. 1993). Under this standard, we reverse only when the trial judge s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Gonzales, 855 S.W.2d at 695 n.4. This standard further applies when the trial court denies the motion without an evidentiary hearing. See McIntire v. State, 698 S.W.2d 652, 660 (Tex. Crim. App. 1985); Owens v. State, 832 S.W.2d 109, 111 (Tex. App. Dallas 1992, no pet.).

Presentment and Request for Hearing

A trial court must hold a requested hearing on a properly presented motion for new trial that raises matters which are not determinable from the record. See Fagan v. State, 89 S.W.3d 245, 249 (Tex. App Texarkana 2002, pet. ref d). However, the right to a hearing on a motion for new trial is not absolute. See Reyes, 849 S.W.2d at 815 (Tex. Crim. App. 1993). In addition to timely filing the motion with supporting affidavits that demonstrate reasonable grounds for believing that some error has occurred, the defendant must present the motion to the trial court. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). To present a motion in the context of a motion for new trial, the defendant must give the trial court actual notice that he timely filed a motion for new trial and request a hearing on the motion for new trial. Id.;Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998) (quoting concurring opinion with approval [Carranza, 960 S.W.2d at 81 (Overstreet, J., concurring)]). The rationale for such a requirement is the same as that which supports preservation of error generally; a trial court should not be reversed on a matter that was not brought to the trial court s attention. See Rozell, 176 S.W.3d at 220; see also Tex. R. App. P. 33.1(a). Presenting the motion along with a request for a hearing is required to let the court know that the defendant wants the trial court to act on the motion and whether the defendant would like a hearing on the motion. Id. Such is akin to objecting to the erroneous admission of evidence. Id. Absent a proper objection that alerts the trial court to the erroneous admission, the error has not been preserved for appellate review. Id

In the case at hand, the record does not contain a request for hearing on Appellant s motion for new trial. The record does contain a document filed with the clerk and signed by Appellant s trial counsel entitled Certificate of Presentment, which states as follows:

On April 14, 2005, I hereby certify that I filed a Motion for New Trial in the above entitled and numbered cause. I further certify that on April 15, 2005, the motion was presented to the trial court. The trial court wrote file on the motion and it was placed in the defendant s court file without a setting for a hearing on the Motion for New Trial, which was requested, or a ruling on the Motion for New Trial.

We do not reach the question of whether Appellant s certification that the motion was presented to the trial court satisfies the specific requirements of presentment. Although the aforementioned certification states that a hearing was requested, it is not itself a request for a hearing which, assuming the motion was properly presented, will preserve the complaint Appellant now raises on appeal. See Tex. R. App. P. 33.1(a) (to preserve an issue for appeal, the record must reflect that the matter was brought to the trial court with sufficient specificity). We conclude that Appellant s counsel s certification filed with the clerk that a hearing was requested lacks the requisite specificity to preserve the issue Appellant now raises on appeal. Appellant s first issue in this cause is overruled.

Revocation of Community Supervision

We next consider Appellant s conviction for possession of a controlled substance in a penal institution. The only question presented in an appeal from an order revoking community supervision is whether the trial court abused its discretion in revoking the defendant s community supervision. See Lloyd v. State, 574 S.W.2d 159, 160 (Tex. Crim. App. [Panel Op.] 1978). The standard of proof in a revocation proceeding is a preponderance of the evidence. Id. In order to satisfy its burden of proof, the State must prove that the greater weight of the credible evidence before the trial court creates a reasonable belief that a condition of community supervision has been violated as alleged in the motion to revoke. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).

As a general matter, a trial court possesses broad discretion in supervising those defendants who are placed on community supervision. See Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999); Becker v. State, 33 S.W.3d 64, 66 (Tex. App. El Paso 2000, no pet.). The degree of the trial court s discretion extends to revocation proceedings such that the trial court has considerable discretion to modify, revoke, or continue the community supervision. Ex parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App. 1986); Becker, 33 S.W.3d at 66. Given the trial court s wide discretion and the unique nature of community supervision revocation proceedings, examination of a revocation order for factually sufficient evidence is inappropriate. See, e.g., Becker, 33 S.W.3d at 66; Joseph v. State, 3 S.W.3d 627, 642 (Tex. App. Houston [14th Dist.] 1999, no pet.); Johnson v. State, 2 S.W.3d 685, 687 (Tex. App. Fort Worth 1999, no pet.); Liggett v. State, 998 S.W.2d 733, 735-36 (Tex. App. Beaumont 1999, no pet.); Johnson v. State, 943 S.W.2d 83, 85 (Tex. App. Houston [1st Dist.] 1997, no pet.); Brumbalow v. State, 933 S.W.2d 298, 300 (Tex. App. Waco 1996, pet. ref d). As such, the trial court is the exclusive judge of the credibility of the witnesses and determines if the allegations in the motion are sufficiently demonstrated. See Greer v. State, 999 S.W.2d 484, 486 (Tex. App. Houston [14th Dist.] 1999, pet. ref d). We review the evidence in the light most favorable to the trial court s order. Id.

Appellant again argues in his first issue that the trial court erred in overruling his motion for new trial. For the reasons set forth above, we likewise overrule Appellant s first issue in this cause.

We next turn to Appellant s second issue regarding the trial court s overruling his motion to suppress. We iterate that the only question presented in an appeal from an order revoking community supervision is whether the trial court abused its discretion in revoking the defendant s community supervision. See Lloyd, 574 S.W.2d at 160. Thus, to the extent that the evidence Appellant contends should have been suppressed is relevant to the issue of whether the trial court abused its discretion in revoking Appellant s community supervision, we may address it. However, Appellant has not raised an issue on appeal contending that the trial court abused its discretion in revoking his community supervision. He has, therefore, waived such an issue. See Tex. R. Civ. P. 38.1(e). Appellant s second issue in this cause is overruled.

Conclusion

As it pertains to the trial court s decision to proceed to adjudication on the charge that Appellant possessed a controlled substance, Appellant s second issue is dismissed for want of jurisdiction. We have overruled Appellant s first issue related to that cause. With regard to the cause relating to Appellant s conviction for possession of a controlled substance in a penal institution, we have overruled Appellant s first and second issues. Having overruled the issues Appellant raised over which we have jurisdiction, we affirm the trial court s judgment in each cause.

SAM GRIFFITH

Justice

Opinion delivered June 30, 2006.

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

(DO NOT PUBLISH)

1 Appellant was charged with possession of between four and two hundred grams of cocaine, a second degree felony. See Tex. Health & Safety Code Ann. 481.102(3)(D); 481.115(a), (d) (Vernon Supp. 2005); The indictment in this cause contained an enhancement paragraph for a prior conviction for aggravated assault. See Tex. Pen. Code Ann. 12.32(a); 12.42(b) (Vernon 2003 & Supp. 2005).

2 Although a trial court s decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable, after an adjudication of guilt, all proceedings, including assessment of punishment and defendant s appeal, continue as if the adjudication of guilt had not been deferred. Tex. Code Crim. Proc. Ann. art. 42.12 5(b).