Phillip Levine v. State ( 2010 )

Affirmed and Memorandum Opinion filed July 6, 2010.

In The

Fourteenth Court of Appeals

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NO. 14-09-00328-CR

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Phillip Levine, Appellant

V.

The State of Texas, Appellee

On Appeal from the 54th District Court

McLennan County, Texas

Trial Court Cause No. 2006-612-C2

MEMORANDUM OPINION

Appellant, Phillip Levine, was charged by indictment with the felony offense of possession of a controlled substance, namely cocaine, in an amount less than one gram.  The offense was alleged to have been committed on or about April 25, 2005.  Appellant pled guilty to the charge and was sentenced to 18 months’ confinement and assessed a fine of $500.  The sentence was suspended and appellant was placed on community supervision for three years. On December 12, 2008, the State filed a motion to revoke probation, alleging that on or about November 28, 2008, appellant changed residences and traveled to a different county without obtaining permission from his community supervision officer. 

At the probation revocation hearing held on March 12, 2009, appellant pled true to the allegations; the trial court set his punishment at six months’ confinement in the state jail.  The trial court certified appellant’s right to appeal, and this appeal followed.[1] 

Analysis

Appellant presents two issues on appeal.  In his first issue, appellant contends that the trial court erred in accepting appellant’s guilty plea without first determining whether appellant was mentally competent.  In his second issue, appellant contends that the record does not reflect that he was served with a written copy of the State’s motion to revoke probation, in violation of his due process rights.  We address each issue in turn.

I.         Competency

In his first issue, appellant argues that the trial court erred in accepting his guilty plea without first determining sua sponte whether he was mentally competent to submit the plea. 

Texas Code of Criminal Procedure article 42.12, § 23(b) provides in part:

The right of the defendant to appeal for a review of the conviction and punishment, as provided by law, shall be accorded the defendant at the time he is placed on community supervision.  When he is notified that his community supervision is revoked for violation of the conditions of community supervision and he is called on to serve a sentence in a jail or in the Texas Department of Criminal Justice, he may appeal the revocation.

Tex. Code Crim. Proc. Ann. art. 42.12 § 23(b) (Vernon Supp. 2009).

Appellant did not appeal the trial court’s decision when the trial court found him guilty and placed him on community supervision. A defendant who is placed on community supervision may raise issues relating to the original plea proceeding only in an appeal taken when community supervision is originally imposed. Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999); Burrell v. State, 492 S.W.2d 482, 483 (Tex. Crim. App. 1973); see Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001) (en banc).  Appellant’s complaint on appeal about his competency arises from his original plea proceeding; it does not arise from the revocation of his community supervision.  See Dilla v. State, No. 05-09-01076-CR, 2010 WL 1856175, at *1 (Tex. App.—Dallas Apr. 27, 2010, no pet.) (not designated for publication).  Appellant was convicted and placed on community supervision on September 19, 2006, and was required to perfect an appeal within 30 days.  See Tex. R. App. P. 26.2(a) (when no motion for new trial is filed, a defendant must appeal within thirty days after a sentence is imposed or suspended).  Appellant did not timely appeal the trial court’s order placing him on community supervision.  Therefore, appellant may not raise an issue concerning the original plea proceeding in this appeal.  See Dilla, 2010 WL 1856175, at *1 (complaint that trial court failed to consider defendant’s competency at the original plea proceeding must be raised in a timely appeal after defendant is placed on community supervision, not after his community supervision is revoked). 

Accordingly, we overrule appellant’s first issue.

II.        Written Notice

In his second issue, appellant argues there is nothing in the record showing he was served with a copy of the State’s motion to revoke probation.  Appellant contends that proceeding to revoke his probation without notice violates due process. 

The defendant at a revocation of probation proceeding need not be afforded the full

range of constitutional and statutory protections available at a criminal trial.  Ruedas v. State, 586 S.W.2d 520, 523 (Tex. Crim. App. 1979); Moore v. State, 11 S.W.3d 495, 499 (Tex. App.—Houston [14th Dist.] 2000, no pet.).  To meet the requirements of due process, the revocation of probation must be preceded by a hearing where the probationer is entitled to written notice of the claimed violations of his probation.  Ex parte Carmona, 185 S.W.3d 492, 495 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)).

Generally, appellate courts will not consider any error that counsel for accused could have but did not call to the trial court’s attention at a time when such error could have been avoided or corrected.  Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim. App. 1982) (op. on 2d reh’g). This general rule also applies to asserted constitutional violations.  Id. Appellant cannot complain on appeal that the trial court failed to meet due process requirements when he has not preserved this error by making a due process objection.  Id. at 263.  Failure to object at the hearing waives any error.  Id. at 264. 

Appellant’s responses at the revocation hearing indicate that he was well aware of the claimed violations:

THE COURT:  Now, the State has had to file a motion to revoke your probation in which they allege you have violated the terms and conditions of your probation in some three different ways.  Have you been over the allegations in the motion to revoke with your attorney?

APPELLANT:  Yes, Your Honor.

THE COURT:  And do you understand what the State is alleging that you did or didn’t do that violates the terms and conditions of your probation?

APPELLANT:  Yes, Your Honor.

THE COURT:  Do you understand you have the right to plead true or not true to these allegations?

APPELLANT:  I understand, Your Honor.

THE COURT:  Then if you would listen carefully while the State’s attorney reads the allegations.

APPELLANT’S COUNSEL:  Your Honor, Mr. Levine would waive the reading of the allegations and tenders his plea of true to all of the allegations in the motion.

THE COURT:  Is that what you wish to do, Mr. Levine, is enter a plea of true to all of the allegations under Roman Numeral 2 of the State’s motion to revoke probation?

APPELLANT:  Yes, Your Honor.

*                                  *                                  *

THE COURT:  Then, Phillip Levine, the Court receives your pleas of true to all of the allegations under Roman Numeral 2 of the State’s motion to revoke your probation and finds that you have violated the terms and conditions of your probation as alleged therein.  The Court is therefore going to revoke your probation.  I am going to modify your sentence.  I’m going to modify your sentence to six months and a $500 fine.

            Do you know of any reason why under law you should not be sentenced at this time?

APPELLANT’S COUNSEL:  No reason, Your Honor.

Appellant acknowledged going over “the allegations in the motion to revoke” that the State filed.  Neither appellant nor his attorney objected to the lack of written notice at the revocation hearing.  Appellant waived a reading of the allegations against him.  Appellant’s trial counsel sent two letters to the trial court explaining appellant’s intent to plead true to the allegations and be sentenced to six months in the state jail, and also requested that the hearing be set.

Appellant argues only that the record fails to show that he was served with written notice of the motion to revoke.  The absence of such a showing in an appellate record is not a denial of due process, and is no more than a negative suggestion that the motion was not served or received.  See Younger v. State, 685 S.W.2d 657, 658 (Tex. Crim. App. 1985) (en banc).  Appellant has failed to show that he was not given sufficient notice of the allegations against him.  Accordingly, we overrule appellant’s second issue.

Conclusion

We affirm the trial court’s judgment.

                                                                        /s/        William J. Boyce

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Yates and Boyce.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] This appeal was transferred to the Fourteenth Court of Appeals from the Tenth Court of Appeals.  In cases transferred by the Supreme Court of Texas from one court of appeals to another, the transferee court must decide the case in accordance with the precedent of the transferor court under the principles of stare decisis if the transferee court’s decision otherwise would have been inconsistent with the precedent of the transferor court.  See Tex. R. App. P. 41.3.