Rodrick Lawrence Hurst v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00049-CR
___________________________
RODRICK LAWRENCE HURST, Appellant
V.
The State of Texas
On Appeal from the 432nd District Court
Tarrant County, Texas
Trial Court No. 1461897D
Before Sudderth, C.J.; Gabriel and Pittman, JJ.
Memorandum Opinion by Justice Pittman
MEMORANDUM OPINION
Appellant Rodrick Lawrence Hurst appeals from the trial court’s sentence on
his conviction for assault of a family member by impeding the normal breathing or
circulation of the blood of the person.1 See Tex. Penal Code Ann. § 22.01(a)(1),
(b)(2)(B). In two issues, he contends that the trial court violated his due process and
erred by arbitrarily discounting the statutory option to render a probated sentence.
Because we hold that Appellant invited the trial court’s decision of which he now
complains, we affirm.
DISCUSSION
The State contends that Appellant invited the error he now alleges. “The
defendant, as a general rule, may not complain on appeal of errors invited by him. An
accused cannot invite error and then complain about it on appeal.” Hess v. State,
953 S.W.2d 837, 840 (Tex. App.—Fort Worth 1997, pet. ref’d); see also Prystash v. State,
3 S.W.3d 522, 531 (Tex. Crim. App. 1999). “This rule applies whether or not the
error is perceived to be fundamental.” Franks v. State, 90 S.W.3d 771, 781 (Tex.
App.—Fort Worth 2002, no pet.). We thus look at the trial record to see if Appellant
invited the trial court to make the error he now complains of.
Appellant took the stand in the sentencing part of the trial and referenced
probation in his testimony, stating that he could “stay on the right path as far as
Because Appellant does not challenge the sufficiency of the evidence to
1
support his conviction, we omit a recitation of the facts. See Tex. R. App. P. 47.1.
2
probation is concerned for [his daughter]” and that he “could definitely stay true to
staying on [his] task that probation would require of [him].”
In his closing argument, Appellant’s attorney stated that “sending him to jail
will not solve the problem of this family” and that “[w]e’re hopeful that he can
complete a period of community supervision.” Appellant’s attorney and the trial
court then had this exchange:
THE COURT: So, Counsel, I have a quick question for you.
[Appellant’s Attorney]: Yes, Judge.
THE COURT: Due to the enhanced nature of it, the only thing
that I’m able to do is place him on a deferred adjudication—
[Appellant’s Attorney]: Yes, Your Honor.
THE COURT:—correct?
[Appellant’s Attorney]: Yes. And we’re asking for the maximum
sentence, deferred, ten years.
THE COURT: Okay. Thank you very much. You may proceed.
[Appellant’s Attorney]: And so we—we are asking not only with
regard to that so that he can move on with his life, so that he can try to
get his physical therapy license, again, so he can become a productive
member of society, stay a productive member of society and have an
impact.
....
And we ask that you place him on deferred not only to ensure
that that relationship—they stay apart from each other, but also you
have the full range of punishment ahead of you if he is to violate it.
There is nothing here that—no one here said that they’re afraid of
[Appellant] or that society should be worried about [him].
3
So I [do not] want it to seem like we’re asking for something
where we’re taking—taking a jail sentence off the table. If [Appellant]—
and he’s fully aware of it—if he violates the conditions that you
place on him, the full range of punishment is available to you,
Judge. [Emphasis added.]
Appellant’s attorney reassured the trial court that it was correct in its
understanding that “the only thing that [it was] able to do” was place Appellant on
deferred adjudication, i.e., that “straight” probation was not available. Further,
Appellant’s attorney specifically “ask[ed] that [the trial court] place him on deferred.”
He also noted that he understood that the trial court would have the full range of
punishment if he violated his conditions, an implicit reference to deferred
adjudication. See Weed v. State, 891 S.W.2d 22, 25 (Tex. App.—Fort Worth 1995, no
pet.) (noting that the availability of the full range of punishment arises in the
revocation of deferred adjudication but not with revocation of straight probation); see
also McCoy v. State, 81 S.W.3d 917, 919 (Tex. App.—Dallas 2002, pet. ref’d).
Accordingly, to the extent the trial court erred by failing to consider straight
probation, Appellant invited that error and may not now complain of it. We overrule
Appellant’s issues.
CONCLUSION
Having overruled Appellant’s two issues, we affirm the trial court’s judgment.
4
/s/ Mark T. Pittman
Mark T. Pittman
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: July 30, 2019
5