Adrian Floyd Phillips v. State ( 2009 )

  Opinion issued May 21, 2009  

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-08-00520-CR

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ADRIAN FLOYD PHILLIPS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1014911

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MEMORANDUM OPINION

Appellant, Adrian Floyd Phillips, pleaded guilty to felony driving while intoxicated, and the trial court assessed punishment at 10 years' confinement, which the court then suspended, placing appellant on five years' community supervision. The State later moved to revoke appellant's community supervision. After a hearing on the State's motion, the trial court revoked appellant's community supervision and assessed punishment at three years' confinement. In his sole issue on appeal, appellant contends he was deprived of due course of law because the record does not show that the trial court considered any punishment less than confinement in prison. We affirm.

Relying on Howard v. State, 830 S.W.2d 785 (Tex. App.--San Antonio 1992, pet. ref'd), and Jefferson v. State, 803 S.W.2d 470, 471 (Tex. App.--Dallas 1991, pet. ref'd), appellant argues that there is no evidence in the record to show that the trial court considered the full range of punishment. As appellant concedes, Howard and Jefferson are distinguishable. In Howard, the trial court affirmatively told the defendant at the deferred adjudication hearing that if the defendant violated his community supervision, "as far as I'm concerned, you can go to TDC for 99 years and stay there, do you understand that?" Howard, 830 S.W.2d at 787. The trial court further stated, "The chances are very good that you'll get 99 years and a $10,000.00 fine." Id. At the hearing to adjudicate guilt, the trial court stated, "I admonished you, I told you you were facing the full range of punishment from five to 99 years or life," then sentenced the defendant to 99 years in prison. Id.

In Jefferson, the trial court told the defendant at the deferred adjudication hearing that if the defendant violated the terms of his community supervision, the trial court would sentence him to 20 years' confinement. 803 S.W.2d at 471. At the hearing to adjudicate guilt, the trial court sentenced the defendant to 20 years' confinement after reminding the defendant that he had been warned that the trial court would impose a 20-year sentence if the defendant violated the terms of his community supervision. Id.

In both Howard and Jefferson, there was evidence on the record to show that the trial court had refused to consider the full range of punishment, but had instead sentenced the defendant to a predetermined number of years in prison. Howard, 830 S.W.2d at 787; Jefferson, 803 S.W.2d at 471. However, as appellant admits, there is nothing on the record in this case to show that the trial court refused to consider the full range of punishment. Instead, appellant argues that Howard and Jefferson should be extended to require the trial court to affirmatively show on the record that it considered "lesser sanctions" than prison. Appellant, however, provides no argument or authority to explain why this Court should extend the holdings in Howard and Jefferson to impose such a requirement on the trial court, and we decline to do so.

Because there is nothing in the record to show that the trial court refused to consider the full range of punishment, and there is no requirement for the trial court to affirmatively state on the record that it considered "lesser sanctions" than prison, we overrule appellant's sole point of error.

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Taft and Sharp.

Do not publish. Tex. R. App. P. 47.2(b).