Gage, Shawn Lynn v. State ( 2013 )

AFFIRM; and Opinion Filed July 3, 2013.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-01246-CR
SHAWN LYNN GAGE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-59705-R
MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Myers
Opinion by Justice Myers
Appellant Shawn Lynn Gage pleaded guilty to burglary of a habitation, pursuant to a plea
agreement. The trial court accepted appellant’s plea, deferred adjudicating guilt, placed
appellant on community supervision for a period of two years, and assessed a $2500 fine. Based
on the State’s subsequent motion to proceed to adjudication and appellant’s plea of true, the trial
court granted the State’s motion, found appellant guilty, and sentenced him to five years’
imprisonment. In his issue, appellant contends the trial court abused its discretion by finding the
allegation in the motion to proceed to adjudication true “where the allegation was not a violation
of [a]ppellant’s community supervision.” We affirm the trial court’s judgment.
DISCUSSION
Appellant’s complaint is based on an error in the motion to proceed to adjudication.
Condition “O” of appellant’s community supervision ordered him to have no contact with
“Casey Hurst,” but the motion to proceed to adjudication alleged appellant violated condition
“O” by contacting “Cathy Hurst.” The State does not dispute this discrepancy but argues
appellant failed to preserve the issue for our review by not objecting to the error. We agree.
During the hearing on the motion to proceed to adjudication, shortly before the trial court
accepted appellant’s plea of true and granted the State’s motion, the prosecutor read the
allegation in the motion. The relevant portion of the record reads as follows:
[Prosecutor]: Motion to revoke probation or proceed to adjudication of guilt.
Comes now the State of Texas by and through her criminal district attorney and
would show the Court the following, that Shawn Lynn Gage, defendant, was duly
and legally placed on community supervision for a period of two years in the
above entitled and numbered cause in the 265th Judicial District Court of Dallas
County, Texas on the 15th day of February, A.D., 2011 for the offense of burglary
of a habitation.
[Appellant]: That’s enough. I thought you were going to read the stipulation that
I’m violating.
The Court: Oh, okay. Thanks.
[Appellant]: That’s all. I thought she was going to read the stipulation, I didn’t
know she was going to read all that stuff. Get her off her feet.
The Court: What’s your plea to the State’s motion, is that allegation true or not?
[Appellant]: Well, I don’t know who Kathy Hurst is but I know a Casey Hurst.
The Court: Is the allegation true or not true?
[Appellant]: True, I guess.
The Court: All right. Anything you want to put on record, counsel?
[Defense Counsel]: Yes, Your Honor, I’d like to call Mr. Gage.
The Court: Let’s do that later.
[Defense Counsel]: Oh, okay. Fair enough.
The Court: Go ahead, State.
[The State]: The State offers State’s Exhibit No. 1, the Defendant’s signed
written voluntary plea of true and stipulation of evidence, and ask [sic] the Court
to take judicial notice of the entire contents of the Court’s file.
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[Defense Counsel]: No objection, Your Honor.
(emphasis added). Later, when the trial court accepted appellant’s plea of true, granted the
State’s motion to proceed to adjudication, found appellant guilty, and sentenced him to five years
in prison, the trial court asked defense counsel, “Any reason in law why your client should not
now be sentenced?” Counsel replied, “None, Your Honor.”
Appellant entered a plea of true and did not object to the error contained in the motion to
proceed to adjudication. He argues the issue is not waived because he raised it before the trial
court, but the record does not support appellant’s argument. Appellant’s comment, “Well, I
don’t know who Kathy Hurst is but I know a Casey Hurst,” indicates he was aware, at the time
he entered his plea, of the discrepancy between the spelling of the complainant’s name in the
motion to proceed to adjudication and the conditions of community supervision. Moreover,
when the trial court asked appellant whether the allegation was true, he responded, “True, I
guess.”
Appellant’s trial counsel did not object regarding appellant’s plea of true when the plea
was entered, and appellant’s comments do not constitute a legal objection and did not preserve
error. Thus, appellant failed to preserve his issue for our review. See TEX. R. APP. P. 33.1(a);
Layton v. State, 280 S.W.3d 235, 238-39 (Tex. Crim. App. 2009) (requiring timely objection to
preserve a complaint for appellate review); Miles v. State, 343 S.W.3d 908, 914 (Tex. App.––
Fort Worth 2011, no pet.) (“[T]o the extent that Appellant contends that the field identifications
by Rojo, Fernandez, and Rodriguez were tainted, Appellant did not preserve his complaint
because he did not object at the revocation hearing to the testimony about the field
identifications.”). We therefore overrule appellant’s issue.
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We affirm the trial court’s judgment.
Lana Myers
LANA MYERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
111246F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SHAWN LYNN GAGE, Appellant On Appeal from the 265th Judicial District
Court, Dallas County, Texas
No. 05-11-01246-CR V. Trial Court Cause No. F10-59705-R.
Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee Justices Bridges and FitzGerald
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 3rd day of July, 2013.
/Lana Myers/
LANA MYERS
JUSTICE
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