Andres Javier Vasquez A/K/A Andres Ragan Vasquez v. State ( 2014 )

Opinion filed July 3, 2014
In The
Eleventh Court of Appeals
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No. 11-13-00221-CR
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ANDRES JAVIER VASQUEZ A/K/A
ANDRES RAGAN VASQUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 432nd District Court
Tarrant County, Texas
Trial Court Cause No. 1155276D
MEMORANDUM OPINION
Andres Javier Vasquez a/k/a Andres Ragan Vasquez pleaded guilty to the
offense of intentionally or knowingly committing injury to a child causing bodily
injury. See TEX. PENAL CODE ANN. § 22.04(a)(3), (f) (West Supp. 2013). The trial
court deferred the adjudication of Appellant’s guilt and placed him on community
supervision for a term of five years. Subsequently, the State moved to adjudicate
Appellant’s guilt based upon allegations that Appellant had violated a term and
condition of his community supervision. After a hearing, the trial court
adjudicated Appellant’s guilt of the original offense and assessed his punishment at
confinement for eight years. Through one issue on appeal, Appellant contends that
his sentence violated his right to due process under the Fourteenth Amendment to
the United States Constitution. We modify and affirm.
I. Background
One of the terms of Appellant’s community supervision required him to
avoid harmful contact with CV, Appellant’s minor son, who was the victim in the
underlying case. In its petition to adjudicate, the State alleged that Appellant had
recently had injurious contact with CV. At the hearing on the motion, Appellant
pleaded “true” to the allegation. After hearing evidence from the State and
Appellant, the trial court sentenced Appellant to confinement for a term of eight
years.
II. Analysis
Appellant contends that his sentence violated his due process rights under
the Fourteenth Amendment. Appellant claims that his punishment was funda-
mentally unfair due to the fact that the trial court clearly refused to consider the
mitigating evidence he presented during the hearing. In response, the State argues
that, because Appellant did not object to a due process violation in open court or in
his motion for new trial, he has failed to preserve the complaint on appeal.
Texas Rule of Appellate Procedure 33.1(a) provides in part that, as a
prerequisite to presenting a complaint for appellate review, a timely request,
objection, or motion must be made and ruled upon by the trial court. TEX. R.
APP. P. 33.1(a). This requirement ensures that trial courts are provided an
opportunity to correct their own mistakes at the most convenient and appropriate
time—when the mistakes are alleged to have been made. See Vidaurri v. State, 49
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S.W.3d 880, 886 (Tex. Crim. App. 2001); Aguilar v. State, 26 S.W.3d 901, 905–06
(Tex. Crim. App. 2000). This requirement applies even when the issue on appeal
alleges a deprivation of due process. Cole v. State, 931 S.W.2d 578, 580 (Tex.
App.—Dallas 1995, pet. ref’d) (stating that “the defendant waives any due process
complaint when he does not object to the punishment or to the failure to consider
the evidence”).
Appellant makes the due process argument for the first time on appeal.
Appellant did not object when the trial court pronounced his sentence. Moreover,
in his motion for new trial, Appellant argued only that his sentence was
“unreasonable and unsupported by the facts presented.” Appellant has therefore
failed to preserve the issue for our review. See TEX. R. APP. P. 33.1(a).
Even if we were to assume, without deciding, that the issue was preserved
for our consideration, we find no merit in Appellant’s claim. Due process requires
trial courts to be neutral and detached in assessing punishment. Brumit v. State,
206 S.W.3d 639, 645 (Tex. Crim. App. 2006). A trial court denies a defendant due
process when it refuses to consider the evidence and imposes a predetermined
sentence or when it arbitrarily refuses to consider the full range of punishment
available for an offense. See McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim.
App. 1983); Jaenicke v. State, 109 S.W.3d 793, 796 (Tex. App.—Houston [1st
Dist.] 2003, pet. ref’d). Absent a clear showing to the contrary, we presume that
the trial court was neutral and detached in assessing punishment. See Brumit, 206
S.W.3d at 645; Jaenicke, 109 S.W.3d at 796.
At the hearing on the petition to adjudicate his guilt, Appellant presented
evidence of his compliance with most of the conditions of his community
supervision, and he now argues that his eight-year sentence proves that the trial
court ignored this mitigating evidence. Appellant’s argument fails to give effect to
the aggravating evidence presented to the trial court, which included testimony by
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the victim detailing the physical assaults he suffered at the hands of Appellant and
the victim’s statement that he wanted Appellant to go to prison.
The range of punishment for the offense at issue in this case is two to ten
years’ confinement, and Appellant’s sentence of eight years’ confinement is within
this range. See PENAL § 12.34 (West 2011), § 22.04(f). Because nothing in the
record indicates that the trial court ignored Appellant’s mitigating evidence or that
it arbitrarily refused to consider the full range of punishment available, we
conclude that Appellant’s due process rights were not violated in this case.
Accordingly, Appellant’s sole issue is overruled.
III. Modification of Judgment
We note that the judgment adjudicating guilt reflects that Appellant was
convicted of the offense of intentionally or knowingly committing the offense of
“JURY” to a child causing bodily injury. We modify the judgment to correct that
mistake. See TEX. R. APP. P. 43.2.
IV. This Court’s Ruling
We modify the judgment of the trial court to reflect that Appellant was
convicted of the offense of “INTENTIONALLY OR KNOWINGLY COM-
MITTING THE OFFENSE OF INJURY TO A CHILD CAUSING BODILY
INJURY.” As modified, the judgment is affirmed.
MIKE WILLSON
JUSTICE
July 3, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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