Miller, Brenda Ann v. State ( 2003 )

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

BRENDA ANN MILLER,

Appellant,

THE STATE OF TEXAS,

Appellee.

No. 08-02-00035-CR

Appeal from the

195th District Court

of Dallas County, Texas

(TC# F00-44908N)

MEMORANDUM OPINION

Brenda Ann Miller pleaded guilty to theft. In accordance with a plea agreement, the trial court deferred the adjudication of guilt and placed her on probation for two years. The State later filed a motion to proceed with an adjudication of guilt. Miller pleaded not true to the allegations in the State's motion. The trial court found the allegations true, adjudicated her guilty, and sentenced her to two years' confinement. Miller appeals from the judgment adjudicating her guilty. We affirm.

Discussion

In her sole point of error, Miller argues that the trial court abused its discretion by imposing a severe sentence upon adjudicating her guilty. She asserts that the increase in punishment from two years of probation to two years of confinement is so great that the trial judge should have made specific findings to justify the increase. We have jurisdiction to consider this issue because it is unrelated to Miller's conviction. See Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001) (holding court of appeals had jurisdiction over issue of ineffective assistance of counsel at punishment hearing); Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001) (holding court of appeals had jurisdiction over issue of failure to provide separate punishment hearing); Williams v. State, 91 S.W.3d 460, 461-62 (Tex. App.--Amarillo 2002, no pet. h.) (holding court of appeals had jurisdiction over issue of failure to consider full range of punishment); Smith v. State, 52 S.W.3d 475, 476-77 (Tex. App.--Corpus Christi 2001, pet. ref'd) (holding court of appeals had jurisdiction over issue of denial of opportunity to present mitigating evidence).

Miller did not object to the severity of her sentence at the punishment hearing, nor did she raise this issue in her motion for new trial. Therefore, the issue is waived. See Tex. R. App. P. 33.1(a); Hull v. State, 67 S.W.3d 215, 217-18 (Tex. Crim. App. 2002); Solis v. State, 945 S.W.2d 300, 301-02 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd).

Even if the issue were not waived, we would consider it to be without merit. Miller relies on a line of cases that restrict the ability of a trial judge to impose a harsher sentence after a new trial has been granted. See Wiltz v. State, 863 S.W.2d 463, 464 (Tex. Crim. App. 1993); Ex parte Bowman, 523 S.W.2d 677, 679 (Tex. Crim. App. 1975); Lechuga v. State, 532 S.W.2d 581, 582 (Tex. Crim. App. 1975); Sterling v. State, 791 S.W.2d 274, 277-78 (Tex. App.--Corpus Christi 1990, pet. ref'd). These cases do not apply here. It is well established that upon the revocation of deferred adjudication probation, the trial court may sentence a defendant to any term within the statutory limits. See Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999). Miller was admonished regarding this rule when she entered her plea of guilty. The two-year sentence imposed by the trial court fell within the statutory limits. See Tex. Pen. Code Ann. §§ 12.35(a), 31.03(a), 31.03(e)(4)(B) (Vernon 2003).