Gemard Jerome Gholston A/K/A Gemard J. Gholston v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-377-CR
GEMARD JEROME GHOLSTON APPELLANT
A/K/A GEMARD J. GHOLSTON
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Introduction
This is an appeal from a sentence imposed following the revocation of
deferred adjudication community supervision. Appellant Gemard Jerome
Gholston a/k/a Gemard J. Gholston appeals his five-year sentence for failure to
comply with sex offender registration requirements. See Tex. Code Crim. Proc.
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… See Tex. R. App. P. 47.4.
Ann. art. 62.102 (Vernon 2006). In his sole point, appellant contends that the
trial court abused its discretion in making its sentencing decision. We affirm.
Background Facts
In 1994, appellant was convicted of sexual assault. As a result of that
conviction, appellant was required to annually verify his sex offender
registration with local law enforcement authorities. See id. art. 62.051. In
2004, a grand jury indicted appellant for failing to satisfy the registration
requirements (a third-degree felony punishable by two to ten years’
confinement). See id. art. 62.102(b)(2); Tex. Penal Code Ann. § 12.34(a)
(Vernon 2003). In 2005, appellant pled guilty to the indicted offense and the
trial court placed him on deferred adjudication community supervision for five
years. The terms of his community supervision required appellant to (among
other provisions) report monthly to his community supervision officer and
submit himself to a sex offender evaluation.
In 2007, the State filed a petition to proceed to adjudication on
appellant’s failure to satisfy his registration requirements, alleging that appellant
violated the provisions of his community supervision. On September 7, 2007,
the trial court conducted a hearing on the State’s petition. During that hearing,
appellant pled true to failing to report to his supervision officer, and testimony
established that appellant failed to complete the sex offender evaluation.
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Appellant testified that his failure to comply with the terms of his deferred
adjudication community supervision resulted from his misunderstanding of its
provisions. The trial court found that two of the allegations contained in the
State’s petition were true, revoked appellant’s community supervision,
adjudicated appellant guilty, and assessed punishment at five years’
confinement.
Abuse of Discretion in Sentencing
In his only point on appeal, appellant contends that the trial court abused
its discretion in sentencing him. Specifically, appellant asserts that the trial
court failed to consider appellant’s mitigating reasons for failing to comply with
the requirements of his deferred adjudication community supervision.
To preserve a complaint for our review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983
S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.
1070 (1999). Further, the trial court must have ruled on the request, objection,
or motion, either expressly or implicitly, or the complaining party must have
objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez
v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).
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An objection to a sentence is waived if it is not presented to the trial
court. See Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995).
Likewise, an objection to the term of punishment imposed by a trial court is
waived if it is not objected to or otherwise raised at the trial court level. See
Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); Thompson
v. State, 243 S.W.3d 774, 775 (Tex. App.—Fort Worth 2007, pet. ref’d).
More specifically, by failing to object to a sentence upon the adjudication of
guilt following deferred adjudication community supervision, a defendant waives
any error associated with the sentence. Wright v. State, 249 S.W.3d 581, 584
(Tex. App.—Fort Worth 2008, no pet.).
Here, after the trial court declared its sentence, appellant’s counsel stated
that he had “no legal reason” why the sentence should not be enforced.
Further, following sentencing, appellant did not file any motion or other
objection regarding his sentence. Instead, appellant’s notice of appeal only
alleged that the trial court erred by finding that the allegations contained in the
State’s petition to proceed to adjudication were true. Under these
circumstances, appellant waived any error associated with his sentencing. See
Mercado, 718 S.W.2d at 296. Therefore, we overrule appellant’s sole point.2
2
… Even if appellant had preserved error, when the punishment assessed
is within the range prescribed by statute, as it is here, it is generally not subject
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Conclusion
Having overruled appellant’s only point, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 23, 2008
to challenge for excessiveness. See Darden v. State, 430 S.W.2d 494, 496
(Tex. Crim. App. 1968); Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort
Worth 2005, no pet.) (explaining that generally, “punishment assessed within
the statutory limits is not excessive, cruel, or unusual”).
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