Joseph Curtis Francois v. State of Texas ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-01-380 CR ____________________

JOSEPH CURTIS FRANCOIS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Court Cause No. 78021

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O P I N I O N

Appellant Joseph Curtis Francois pleaded guilty to the offense of aggravated robbery, a first degree felony. The trial court deferred adjudication of his guilt and placed him on community supervision for ten years. The State filed a motion to revoke based on alleged violations of the community supervision order. Francois pleaded true to three of the alleged violations of his community supervision order, and the trial court adjudicated him guilty and sentenced him to fifteen years in the Texas Department of Criminal Justice -- Institutional Division. On appeal he raises two points of error. We have jurisdiction over the issue relating to the process by which Francois was sentenced. See Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001).   

Francois first contends the sentence of fifteen years is excessive and constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution; alternatively, he argues the trial court should have permitted him to remain on community supervision. He maintains the fifteen year sentence was too harsh in light of the nature of his community supervision violations: failing to pay court assessed fees, leaving the Jefferson County Restitution Center without permission, and being terminated from his job because of poor work performance. We note the trial court did not sentence Francois to fifteen years for violating the community supervision order. His sentence is for the offense of aggravated robbery, a first degree felony punishable by a term not more than ninety-nine or less than five years. See Tex. Pen. Code Ann. §§ 12.32(a), 29.03 (Vernon 1994).

Francois did not object to the sentence below, either at the sentencing hearing or in a motion for new trial and, as a result, has not preserved the issue for review. See Jackson v. State, 989 S.W.2d 842, 844 (Tex. App.--Texarkana 1999, no pet.). Even if properly preserved, however, his point of error has no merit. The fifteen year sentence is within the punishment range allowed by law for a first degree felony, and no evidence of disproportionality of punishment was presented to the trial court. See Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.--Houston [1^st Dist.] 1997, pet. ref'd) (no record presented showing the error).

We also note that Francois urges this court to adopt a rule requiring the trial court to give a defendant "one more chance" on probation after the first motion to revoke is filed. Even if this type of argument had any validity, we do not have jurisdiction to address this complaint as it relates to the trial court's determination to adjudicate guilt. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); Tex. Code Crim. Proc. Ann. art. 42.12(5)(b) (Vernon Supp. 2002). Point of error one is overruled.

In his second point of error, Francois contends that upon revocation of his community supervision and adjudication of his guilt, the trial court erred in sentencing him to fifteen years when the plea agreement ⁽¹⁾ was for a cap of ten years. However, if the State recommends a cap of ten years in exchange for the defendant's plea of guilty and the trial court follows the plea bargain in giving defendant deferred adjudication and community supervision, then the trial judge does not exceed the recommendation if, upon proceeding to an adjudication of guilt, the judge later assesses any punishment within the range allowed by law. See Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002); Ditto v. State, 988 S.W.2d 236, 239-40 (Tex. Crim. App. 1999).

The conviction is affirmed.

AFFIRMED.

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DAVID B. GAULTNEY

Justice

Submitted on July 29, 2002

Opinion Delivered August 28, 2002

Do Not Publish

Before Walker, C.J., Burgess, and Gaultney, JJ.

1. The written plea agreement does not contain the defendant's or his counsel's signature. However, at the plea hearing, the trial judge expressly referenced the plea agreement entered into by appellant and his attorney and treated the case as if it did involve a plea bargain. Appellant has never disputed below or on appeal the existence of a plea bargain.