Daniel Armadillo v. State ( 2012 )


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  •                               NUMBER 13-12-00171-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    DANIEL ARMADILLO,                                                                        Appellant,
    v.
    THE STATE OF TEXAS,                                                                        Appellee.
    On appeal from the 94th District Court
    of Nueces County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Garza and Vela
    Memorandum Opinion by Justice Rose Vela
    This is an appeal from an order revoking appellant, Daniel Armadillo’s, community
    supervision. Appellant was charged with two counts of indecency with a child by contact.
    TEX. PENAL CODE ANN. § 21.11 (West 2011).1 He pleaded guilty and was placed on
    1
    The judgment adjudicating guilt incorrectly cites to section "21.22" of the Texas Penal Code.
    This section does not exist. The judgment should be modified to reflect that appellant was convicted under
    section 21.11 of the Texas Penal Code. See TEX. R. APP. P. 43.2; Rhoten v. State, 
    299 S.W.3d 349
    , 355
    (Tex. App.—Texarkana 2009, no pet.) (granting appellate courts authority to modify judgments sua sponte,
    deferred-adjudication community supervision for four years.              Thereafter, the State
    moved to revoke his community supervision, alleging several violations.              Appellant
    pleaded "true" to several of the alleged violations; the trial court adjudicated him guilty and
    sentenced him to eight years in the Texas Department of Criminal Justice, Institutional
    Division. By one issue, appellant urges that the trial court violated his due process rights
    when it failed to consider the full range of punishment available to him upon revocation.
    We affirm the judgment as modified.
    I. STANDARD OF REVIEW
    The proper standard of review of a trial court's decision concerning revocation of a
    defendant's probation is one of abuse of discretion. Forrest v. State, 
    805 S.W.2d 462
    ,
    464 n. 2 (Tex. Crim. App. 1991). Due process requires a neutral and detached hearing
    body or officer. Brumit v. State, 
    206 S.W.3d 639
    , 645 (Tex. Crim. App. 2006). Absent a
    clear showing of bias, a trial court’s action will be presumed to have been correct. 
    Id. II. ANALYSIS
    Appellant argues by his sole issue that the trial court failed to consider the full
    range of punishment in this case. During the hearing on the motion to revoke, the trial
    court heard testimony from appellant’s probation officer, appellant and appellant’s wife.
    At the hearing’s conclusion, the court stated:
    I mean, you’ve been here a couple of times, the first M.T.R involved
    contact with minors.       One of them was contact with the same
    granddaughter. The other one was a sixteen year old granddaughter, who
    probably is of age by now, and then the next time we were here not a lot was
    proven, but we are here today and he’s having contact once again, along
    with some other issues. Drinking is a problem in this case because
    it—certain inhibitions.
    to correct typographical errors, and make the record speak the truth).
    2
    All right, the Court having heard the evidence, defendant has plead
    true, finds the allegations to be true, hereby adjudicates defendant, revokes
    his community supervision, sentences him to eight years in the Department
    of Criminal Justice Institutional Division on both counts.
    Appellant was convicted pursuant to section 21.11(a) of the penal code, a second
    degree felony punishable by a term of not more than twenty years or less than two years.
    TEX. PENAL CODE ANN. § 12.33 (West 2011). The trial court’s comments here, as in
    Brumit, do not support appellant’s argument that the trial court predetermined appellant’s
    sentence. There is absolutely nothing in the record to show any bias or partiality on the
    trial court’s part. Appellant’s issue is overruled.
    III. CONCLUSION
    The judgment of the trial court is modified to reflect that he was convicted pursuant
    to section 21.11 of the Texas Penal Code, and, as modified, it is affirmed.
    ROSE VELA
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2(b).
    Delivered and filed the
    23rd day of August, 2012.
    3
    

Document Info

Docket Number: 13-12-00171-CR

Filed Date: 8/23/2012

Precedential Status: Precedential

Modified Date: 4/17/2021