Beth Ellen Davidson A/K/A Beth Ellen Robb v. State ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-11-00660-CR
NO. 09-11-00661-CR
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BETH ELLEN DAVIDSON A/K/A BETH ELLEN ROBB, Appellant
V.
THE STATE OF TEXAS, Appellee
_____________________________________________________________________ _
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 10-09715, 11-10842
________________________________________________________________________
MEMORANDUM OPINION
In carrying out plea agreements, Beth Ellen Davidson a/k/a Beth Ellen Robb, pled
guilty to possession of a controlled substance, a third degree felony, and to delivery of a
controlled substance, a state jail felony. 1 See Tex. Health & Safety Code Ann. §§
481.104, 481.114(b), 481.117(c) (West 2010). The trial court found Davidson guilty,
pronounced her sentences, suspended the sentences, and placed her on community
1
Each of these cases has been appealed separately; but because both cases present
similar reporter’s records and arguments, we resolve both appeals in this opinion.
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supervision. Subsequently, in each case, the State asked that the trial judge revoke its
order placing Davidson on community supervision. After finding in a hearing that
Davidson violated the terms of her placement, the trial court revoked both of its
community supervision orders.
Davidson appealed, and she raises the same three issues in each of her appeals. In
issue one, Davidson contends that she was denied due process because the trial court
predetermined her sentences. In issue two, Davidson asserts the trial court denied her a
fair and impartial forum at the punishment hearing. In her third issue, Davidson argues
that each of the sentences the trial court imposed on her constitutes a cruel and unusual
punishment. In each of Davidson’s appeals, we conclude that Davidson failed to preserve
her issues for appellate review. We affirm the trial court’s judgments.
The trial court placed Davidson on community supervision based on plea
agreements that Davidson made with the State. After Davidson pled guilty to possessing
a controlled substance, the trial court sentenced Davidson to ten years in prison,
suspended her sentence, placed her on community supervision for ten years, and ordered
her to pay a $1,000 fine. After Davidson pled guilty to delivery of a controlled substance,
the trial court sentenced Davidson to two years in state jail, suspended her sentence,
placed her on community supervision for five years, and ordered her to pay a $500 fine.
Subsequently, the State filed motions to revoke the community supervision orders.
Each respective motion alleges that Davidson violated the terms of her community
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supervision order by committing an additional offense and by using or possessing a drug.
Davidson’s pleas in response to the State’s motions to revoke were heard in one hearing,
and during the hearing, Davidson pled “true” to the allegation that in April 2011 she had
amphetamines in her system, but she pled “untrue” to having committed an additional
offense while on community supervision. Several weeks later, the trial court conducted a
joint evidentiary hearing on the State’s motions to revoke. After hearing the evidence,
and based on the allegations in the State’s motions, the trial court found that Davidson
had violated the community supervision orders and revoked the community supervision
order in each case. At the conclusion of the hearing, the trial court imposed a ten-year
prison sentence in the possession case and imposed a two-year state jail sentence in the
delivery case.
In her brief, Davidson has combined the arguments on her first two issues, both of
which concern Davidson’s punishment hearing. However, the record shows that during
the hearing, Davidson never objected to the punishment the trial court pronounced;
following the hearing, the record further reflects that Davidson did not file a motion for
new trial. Because Davidson did not raise her complaints in the trial court, she failed to
preserve these issues for our review. See Tex. R. App. P. 33.1(a)(1); Rogers v. State, 640
S.W.2d 248, 264 (Tex. Crim. App. 1982) (second op. on reh’g) (“It is a general rule that
appellate courts will not consider any error which counsel for accused could have called,
but did not call, to the attention of the trial court at the time when such error could have
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been avoided or corrected by the trial court.”); Teixeira v. State, 89 S.W.3d 190, 192
(Tex. App.—Texarkana 2002, pet. ref’d) (failing to raise timely objection waived
complaint that trial court failed to consider entire range of punishment); Cole v. State,
931 S.W.2d 578, 579-80 (Tex. App.—Dallas 1995, pet. ref’d) (holding that complaint
regarding whether trial court predetermined defendant’s sentence was waived when
defendant failed to object to the trial court’s action).
Additionally, the record shows that at Davidson’s initial sentencing hearing,
before she was placed on community supervision, Davidson did not complain that she
had been denied due process. Following the sentencing proceeding, Davidson did not file
an appeal. Davidson may not, after being sentenced and having her sentences suspended,
wait until she violates the community supervision order to appeal her sentences. A
“defendant placed on ‘regular’ community supervision may raise issues relating to the
conviction . . . only in appeals taken when community supervision is originally imposed.”
Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999); see Tex. Code Crim.
Proc. Ann. art. 42.12 § 23(b) (West Supp. 2012) (“The right of the defendant to appeal
for a review of the conviction and punishment, as provided by law, shall be accorded the
defendant at the time he is placed on community supervision.”).
Nor do Davidson’s complaints that the trial court predetermined her ten and two
year sentences have any merit. The trial court placed Davidson on court-ordered
community supervision after pronouncing her guilty of the two crimes at issue. In court-
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ordered community supervision cases, the trial court assesses punishment before it grants
community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 § 3(a) (West Supp.
2012). The order granting community supervision suspends the imposition of the
sentence until the defendant violates the terms of the trial court’s community supervision
order or the defendant successfully completes the supervision period. See Wiltz v. State,
863 S.W.2d 463, 465 (Tex. Crim. App. 1993); see also Tex. Code Crim. Proc. Ann. art.
42.12 § 3(a). If placed on community supervision, and if the community supervision
order is revoked after the trial court finds the defendant guilty and pronounces sentence,
the trial court may dispose of the case as if there had been no community supervision.
Tex. Code Crim. Proc. Ann. art. 42.12 § 23(a) (West Supp. 2012). Given the procedural
history of this case, the trial court did not err by imposing the sentences it originally
assessed. Guzman v. State, 923 S.W.2d 792, 799 (Tex. App.—Corpus Christi 1996, no
pet.).
While in a traditional probation case the trial court may choose to reduce the term
of confinement that it originally assessed, that decision is left to the trial court’s sound
discretion. Tex. Code Crim. Proc. Ann. art. 42.12 § 23(a); Cannon v. State, 537 S.W.2d
31, 32 (Tex. Crim. App. 1976). The record does not show the trial court abused its
discretion by deciding not to reduce Davidson’s sentences.
To support her arguments on appeal, Davidson relies on Howard v. State, 830
S.W.2d 785 (Tex. App.—San Antonio 1992, pet. ref’d), and Jefferson v. State, 803
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S.W.2d 470 (Tex. App.—Dallas 1991, pet. ref’d). Unlike this case, the two cases on
which Davidson relies involved defendants who received deferred adjudication. In
Howard and Jefferson, the trial court deferred pronouncing the defendants’ guilt; in
contrast, Davidson was adjudicated guilty, her sentences were pronounced, and the trial
court then suspended her sentences. See Howard, 830 S.W.2d at 787; Jefferson, 803
S.W.2d at 470.
Davidson’s cases are traditional probation cases. The trial court did not defer
adjudicating Davidson’s guilt; instead, in each case, the trial court accepted Davidson’s
plea of guilty, found her guilty of the offense, assessed her punishment, suspended her
sentence, and placed her on community supervision. Davidson did not receive deferred
adjudication. Because a defendant who is given deferred adjudication is not being found
guilty and punishment is not then imposed, the trial court is not confined to its prior
order; instead, if the defendant fails to fulfill the terms of the trial court’s community
supervision order, the trial court may consider the full range of punishment. See Weed v.
State, 891 S.W.2d 22, 25 (Tex. App.—Fort Worth 1995, no pet.).
Davidson also complains the trial court did not consider evidence in mitigation of
her sentence. However, the record does not reflect that the trial court refused to consider
any of the evidence that Davidson offered. During the evidentiary hearing on the motion
to revoke, Davidson’s attorney called her as a witness, the State never objected to any of
the questions that she was asked, and Davidson did not call any other witnesses to testify
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on her behalf. Thus, the record shows the trial court provided Davidson an opportunity to
present any evidence she wished to offer.
In summary, even had Davidson timely objected and preserved error, the record
does not support Davidson’s claim that the trial court denied her right to receive due
process. Nevertheless, issues one and two were not properly preserved for our review and
both issues in each of Davidson’s appeals are overruled.
In issue three, Davidson argues that her sentences are disproportionate and
constitute cruel and unusual punishments that violate the Eighth Amendment to the
United States Constitution and the Texas Code of Criminal Procedure. See U.S. Const.
amend. VIII; Tex. Code Crim. Proc. Ann. art. 1.09 (West 2005) (forbidding cruelty). The
record shows that when her sentences were pronounced, Davidson did not complain
about the length of her sentences. See Tex. R. App. P. 33.1(a); Rhoades v. State, 934
S.W.2d 113, 120 (Tex. Crim. App. 1996) (stating defendant forfeited complaint about his
constitutional right to be free from cruel and unusual punishment by failing to raise
objection in the trial court); Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d) (noting defendant failed to preserve Eighth
Amendment argument that he received disproportionate sentence). Because Davidson
failed to timely object, Davidson has waived the complaints that she attempts to raise in
issue three.
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However, even had Davidson’s complaints about the length of her sentences been
properly preserved for appellate review, both of Davidson’s sentences are within the
statutorily authorized range of punishment for the two crimes at issue. See Tex. Health &
Safety Code Ann. §§ 481.114(b), 481.117(c); see also Tex. Penal Code Ann. § 12.34
(West 2011), § 12.35 (West Supp. 2012). 2 Punishment is generally not considered
excessive even when it is imposed at the statutory maximum. See Gavin v. State, No. 01-
08-00881-CR, 2010 Tex. App. LEXIS 3862, at **20-21 (Tex. App.—Houston [1st Dist.]
May 20, 2010, no pet.) (not yet released for publication); see also Holley v. State, 167
S.W.3d 546, 549-50 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). A punishment
that is within the statutory range for the offense is generally not excessive, nor considered
to be constitutionally cruel or unusual. See Kirk v. State, 949 S.W.2d 769, 772 (Tex.
App.—Dallas 1997, pet. ref’d). Generally, a sentence that is within the statutory range of
punishment established by the Legislature will not be disturbed on appeal. See Jackson v.
State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).
Davidson also failed to prove that her sentences were grossly disproportionate, as
the record contains no evidence “reflecting sentences imposed for similar offenses on
criminals in Texas or other jurisdictions by which to make a comparison.” See Jackson v.
State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no pet.). Because Davidson
2
Because amended section 12.35 contains no material changes relevant to this
case, we cite to the current version of the statute.
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failed to preserve error regarding her complaints about the length of her sentences, we
overrule issue three in each of Davidson’s appeals.
Having overruled all of Davidson’s issues in both appeals, we affirm the trial
court’s judgments.
AFFIRMED.
___________________________
HOLLIS HORTON
Justice
Submitted on November 6, 2012
Opinion Delivered January 30, 2013
Do Not Publish
Before McKeithen, C.J., Gaultney and Horton, JJ.
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