Jason Tye Covington v. State ( 2006 )

Opinion filed June 1, 2006

Opinion filed June 1, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00195-CR

                                                    __________

                                JASON TYE COVINGTON, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 220th District Court

                                                      Comanche County, Texas

                                       Trial Court Cause No. 04-10-02649-CCCR

                                                                   O P I N I O N

Jason Tye Covington appeals from his conviction of the offense of injury to a child, a third degree felony, after the trial court granted the State=s motion to set aside his deferred adjudication on the basis that Covington had violated the conditions of his community supervision. The trial court assessed his punishment at five years in the Texas Department of Criminal Justice and a $2,000 fine.  We affirm.

In a single issue on appeal, Covington asserts that the trial court abused its discretion by sentencing him to confinement in the Texas Department of Criminal Justice, Institutional Division, rather than sending him to a substance abuse felony treatment facility and allowing him to remain on community supervision.  He insists that he is not contending that the trial court abused its discretion by setting aside his deferred adjudication. Consequently, we interpret Covington=s issue as a contention that the trial court erred by assessing his punishment at five years in the Texas Department of Criminal Justice, Institutional Division, rather than placing him on community supervision after granting the State=s motion to set aside his deferred adjudication.

The trial court=s decision as to whether to grant community supervision is wholly discretionary and nonreviewable.  Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999). Even if it were, as a general rule, as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal.  Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).  Five years is within the range of punishment for the third degree offense of injury to a child.  See Tex. Pen. Code Ann. ' 12.34(a) (Vernon 2003).

Covington relies on the fact that the only witness in the hearing on the State=s motion to set aside his deferred adjudication was Lisa Lambert, who testified that the S.A.F.P.F. program is the residential treatment program that most matched Covington=s needs and that, if he used the tools he would learn there, he would have a chance of succeeding on probation afterwards.  She said that she believed Covington would benefit by going to that facility and that the best interest of justice could be served by his attending that facility.  Covington suggests that there is no evidence in the record to support the trial court=s decision in assessing punishment.

The Honorable James E. Morgan, the trial judge who heard the State=s motion to set aside Covington=s deferred adjudication and who assessed Covington=s punishment, is the same judge to whom Covington pleaded guilty on April 14, 2005.  At that time, the trial court heard evidence to substantiate the allegations of the indictment charging Covington with the third degree offense of injury to a child.  At the hearing on the State=s motion to set aside Covington=s deferred adjudication, Covington acknowledged that the allegation that he had possessed and consumed alcohol less than a month after he was placed on community supervision was true.  Lambert, his community supervision officer, testified that Covington had other alcohol-related arrests prior to this offense and that alcohol is the primary issue in his life that had precipitated his violation of the law.  She indicated that he also had problems with his ex-wife that would cause a likelihood of re-offending.  She testified that he had family violence in his past relating to his family problems.  Lambert had no recommendation to make to the court.  When it assessed Covington=s punishment,  the trial court referred to its efforts to get Covington to accept treatment at the time of his original plea. Considering all of these facts, we hold that the record supports our conclusion that the trial court did not abuse its discretion in assessing Covington=s punishment.  We overrule Covington=s sole issue on appeal.

The judgment of the trial court is affirmed.

PER CURIAM

June 1, 2006

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

Panel consists of: McCall, J., and

Strange, J., and Hill, J.^[1]

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^[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.