Crystal Anne Torrez v. The State of Texas--Appeal from 3rd District Court of Anderson County

NO. 12-06-00165-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CRYSTAL ANNE TORREZ, APPEAL FROM THE THIRD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Crystal Anne Torrez appeals her convictions for three counts of abandoning or endangering a child, for which she was sentenced to two years in a state jail facility and fined $10,000. In one issue, Appellant contends that the trial court erred by refusing to consider the full range of punishment during the revocation hearing. We affirm.

Background

On March 2, 2005, Appellant was charged by indictment with three counts of abandoning or endangering a child with intent to return for the child, a state jail felony.1

On August 25, 2005, Appellant and her counsel signed an agreed plea recommendation stating, in part, that she agreed to the stipulation of evidence, judicially confessed to the offenses alleged in the indictment, waived her time to file motions for new trial and in arrest of judgment, waived her right to appeal, and waived her right of trial by jury. This document was acknowledged by Appellant, her counsel, and the State s attorney. The trial court accepted Appellant s plea, adjudicated her guilty of three counts of abandoning or endangering a child, and sentenced Appellant to two years in a state jail facility and a $1,500 fine. However, the trial court suspended imposition of the sentence and placed Appellant on community supervision for five years. One of the terms of Appellant s community supervision was that she commit no offense against the laws of this State. In its judgment, the trial court stated that, if the case was revoked, Appellant would serve two years in a state jail facility for each count.

On January 4, 2006, the State filed an amended motion to revoke Appellant s community supervision. The motion alleged that Appellant had violated the terms of her community supervision by failing to commit no offense against the laws of this State, failing to report to the community supervision officer, failing to pay the cost of the substance abuse evaluation, failing to perform community service restitution, and failing to pay supervision fees, court costs, and crime stoppers. Appellant pleaded not true to committing the acts alleged in the State s motion. On March 30, 2006, the trial court held a revocation hearing. Before witnesses were heard, the trial court stated that, contrary to its previous agreement, it could not accept an arrangement to sentence Appellant to community supervision. The trial court stated that it had been reminded of the Appellant s irresponsibility. Appellant did not object.

At the conclusion of the hearing, the trial court found it true that Appellant violated the conditions of her community supervision in that she failed to commit no offense against the laws of this State, failed to report to the community supervision officer, failed to pay the cost of the substance abuse evaluation, and failed to perform community service restitution. The trial court revoked Appellant s community supervision and assessed punishment at two years in a state jail facility and a $10,000 fine. When asked if there was any reason why the trial court should not sentence Appellant, her counsel replied no legal reason. This appeal followed.

Full Range of Punishment

In her sole issue on appeal, Appellant argues that the trial court erred by not considering the full range of punishment, denying her a fair and impartial trial. The State contends that Appellant failed to preserve error by making a timely objection to the trial court. The State also argues that Appellant s issue should be denied because she failed to make a proper legal argument. According to the State, Appellant s brief failed to contain citations to case law in support of her position and did not make a legal argument based upon the authorities cited. Finally, the State contends that there is no evidence in the record that shows the trial court had predetermined Appellant s sentence.

Preservation of Error

A court denies due process and due course of law if it arbitrarily refuses to consider the entire range of punishment for an offense or refuses to consider the evidence and imposes a predetermined punishment. Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App. Texarkana 2002, pet. ref d). However, as a prerequisite to presenting a complaint for appeal, the record must show that a complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). The request, objection, or motion must state the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A). The trial court must have ruled on the request, objection, or motion, either expressly or implicitly. Tex. R. App. P. 33.1(a)(2)(A). If the trial court refused to rule, the complaining party must have objected to the refusal. Tex. R. App. P. 33.1(a)(2)(B).

In Hull v. State, the trial court admonished the appellant that the court would apply a policy of zero tolerance when it probated his sentence. Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002). The court of criminal appeals concluded that the appellant, who did not object to the admonishment when his conditions of probation were imposed or when his probation was revoked, waived any complaint about the trial court s zero tolerance policy. Id. at 217-18. Similarly, Appellant did not object after the trial court refused to accept an arrangement that she be sentenced to community supervision or before she was formally sentenced by the trial court. As such, Appellant has waived her issue on appeal. See Tex. R. App. P. 33.1(a)(1). However, even if Appellant did not waive her complaint by failing to object, we note that her argument was inadequately briefed.

Proper Legal Argument

Appellant s brief contained global citations to articles 1.04 and 1.05 of the Texas Code of Criminal Procedure, the Texas Constitution, and the United States Constitution. However, Appellant did not separately argue her state and federal constitutional claims or argue that the Texas constitutional protections differ in any significant way from those protections or rights in the United States Constitution. To adequately brief a state constitutional issue, Appellant must proffer specific arguments and authorities supporting her contentions under the state constitution. Moore v. State, 935 S.W.2d 124, 128 (Tex. Crim. App. 1996); Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995). Because Appellant failed to do so, we consider Appellant s sole issue as a federal constitutional claim only. See Jackson v. State, 992 S.W.2d 469, 475 n.8 (Tex. Crim. App. 1999); Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992).

An appellant s brief must contain a clear and concise argument for the contentions made, with appropriate citation to authorities and to the record. Tex. R. App. P. 38.1(h). However, Appellant s argument regarding the violation of her federal constitutional protections and rights was conclusory. Appellant also fails to describe any justification for a determination that the trial court violated her federal constitutional protections and rights by refusing to consider the full range of punishment. Although Appellant s brief contained a global citation to the United States Constitution, the court of criminal appeals stated that it is incumbent upon counsel to cite specific legal authority and to provide legal argument based upon that authority. Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). Further, it is not sufficient that an appellant globally cite to, for instance, the Sixth Amendment, and nothing else in her request for reversal. See id. Appellant s argument was conclusory and contained only global citations to authorities without any legal argument based upon that authority. Therefore, even if the issue had been preserved, she has waived the issue on appeal by failing to adequately brief it. See Tex. R. App. P. 38.1(h). Appellant s sole issue is overruled.

Disposition

The judgment of the trial court is affirmed.

JAMES T. WORTHEN

Chief Justice

Opinion delivered November 1, 2006.

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

(DO NOT PUBLISH)

1 See Tex. Pen. Code Ann. 22.041 (Vernon 2003).