Adam Rubert Littlepage v. State ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00197-CR
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ADAM RUBERT LITTLEPAGE, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 11-10942
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MEMORANDUM OPINION
Adam Rubert Littlepage pleaded guilty under a plea agreement to felony
theft. The trial court found the evidence sufficient to find Littlepage guilty, but
deferred further proceedings and placed him on five years of community
supervision and assessed a $500.00 fine. The State subsequently filed a motion to
revoke. Littlepage pleaded “true” to violating two conditions of his community
supervision.
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In two appellate issues, Littlepage contends the trial court erred in assessing
the maximum sentence without considering the entire range of punishment, and in
assessing a $500 fine in the written judgment in the absence of an oral
pronouncement of a fine at the time of sentencing. We affirm the trial court’s
judgment as modified.
A trial court’s arbitrary refusal to consider the entire range of punishment
constitutes a denial of due process. Ex parte Brown, 158 S.W.3d 449, 454 (Tex.
Crim. App. 2005). In this case, the record does not indicate that Littlepage objected
to his sentence. See Tex. R. App. P. 33.1(a). Even if Littlepage had objected,
absent a clear showing to the contrary, we presume that the trial court was neutral
and detached in sentencing the defendant and that the trial court considered the full
range of punishment. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App.
2006). Littlepage does not argue that the trial court was biased or partial, nor does
he point to any evidence in the appellate record to demonstrate that the trial court
failed to consider the whole range of punishment. And our review of the record
does not indicate that the trial court made comments indicating bias, partiality, or a
failure to consider the entire punishment range. See id. at 645-46.
Furthermore, Littlepage’s sentence is within the statutorily authorized range
of punishment for the charged offense. See Tex. Penal Code Ann. §§ 12.35(a),
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31.03(a),(b)(2),(e)(4) (West Supp. 2013). 1 Generally, a sentence that is within the
range of punishment established by the Legislature will not be disturbed on appeal.
Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no pet.); see
also Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d). This
includes sentences imposed at the statutory maximum. See Holley v. State, 167
S.W.3d 546, 549-50 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
Littlepage argues that he was punished for drug addiction, and that
punishing a person for being a drug addict constitutes cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments to the United
States Constitution. The record shows that when his sentence was pronounced,
Littlepage did not make this objection, and therefore he waived this complaint. See
Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex. Crim.
App. 1996) (stating defendant forfeited complaint about his constitutional right to
be free from cruel and unusual punishment by failing to raise objection in the trial
court). To the extent Littlepage argues that the trial court did not consider the
mitigating circumstances Littlepage presented, we note that the record does not
1
Because the amendments to sections 12.35 and 31.03 are not material to
this case, we cite to the most recent publication of the respective statutes.
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reflect that the trial court refused to consider any of the evidence that Littlepage
offered.2 Accordingly, we overrule Littlepage’s first issue.
In his second issue, Littlepage argues the trial court abused its discretion by
assessing a $500 fine against him in the written judgment adjudicating guilt when
there was no pronouncement of the fine in the oral rendition of judgment at the
revocation and adjudication hearing. See Taylor v. State, 131 S.W.3d 497, 502
(Tex. Crim. App. 2004). The State concedes error and asks this Court to affirm the
judgment, but modify it to delete the fine.
The trial court’s oral pronouncement sentenced Littlepage to two years in
state jail and did not assess a fine. The first page of the written judgment reflects
the defendant’s punishment as two years in prison with no amount indicated in the
fine column. The second page of the judgment notes a fine of $500. To the extent
there is a variance between the trial court’s oral pronouncement of judgment and
the written judgment, the oral pronouncement controls. Id. at 500-02 (affirming
court of appeal’s modification of judgment to remove fine assessed in the written
judgment, but not orally pronounced); Ex parte Madding, 70 S.W.3d 131, 135
2
In his appellate brief, Littlepage requested that the “record . . . be amended
to allow a supplemental reporter’s record as to all cases which were sentenced at
the same date and time as [Littlepage’s sentencing].” He cites no authority to
support his request that would, if granted, allow the record to be altered in such a
manner. Furthermore, his request would seek to introduce evidence that was not
presented to the trial court. See Tex. R. App. P. 38.1(i).
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(Tex. Crim. App. 2002). As requested by appellant and recommended by the State,
we modify the written judgment to delete the $500 fine and any order to pay it.
We affirm the judgment as modified. See Tex. R. App. P. 43.2(b).
AFFIRMED AS MODIFIED.
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LEANNE JOHNSON
Justice
Submitted on July 7, 2014
Opinion Delivered September 3, 2014
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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