Roger Christopher Schoenfeld v. State

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Roger Christopher Schoenfeld

Appellant

Vs.             No. 11-02-00122-CR  -- Appeal from Dallas County

State of Texas

Appellee

This is an appeal from a community supervision revocation.  Roger Christopher Schoenfeld originally pleaded guilty to the offense of possession of 1 to 4 grams of methamphetamine.  The trial court convicted appellant and, pursuant to the plea bargain agreement, assessed his punishment at confinement for 5 years and a fine of $1,500.  The imposition of confinement was suspended, and appellant was placed on community supervision for a term of 5 years.  The State subsequently filed a motion to revoke. Appellant pleaded true to the State=s allegations that he had violated the terms and conditions of his community supervision.  The trial court revoked appellant=s community supervision and assessed his punishment at confinement for 5 years and a fine of $756.  We affirm.              Appellant presents two issues for review.  In the first issue, he argues that his sentence is void because the trial court failed to revoke his community supervision prior to announcing sentence.  The record shows that the hearing regarding the motion to revoke was conducted on two separate days.  On February 28, 2002, appellant pleaded true to the State=s allegations, including allegations that appellant tested positive for amphetamine and marihuana three times during his community supervision and that appellant did not participate in substance abuse counseling as required.  During this proceeding, appellant discussed the positive effect that the SAFPF (Substance Abuse Felony Punishment Facility) program had had on his girlfriend.  The trial court concluded this proceeding by holding appellant for an evaluation and recommendation regarding his substance abuse.  The court stated, AIf it=s SAFPF, that=s where you=re going to go.@  On March 28, 2002, the hearing resumed.  The trial court stated on the record that it had held appellant for an evaluation and recommendation, that SAFPF was the recommendation made by the community supervision department, but that appellant would not sign the paperwork to modify the conditions of community supervision and accept SAFPF. Appellant did not want to go to SAFPF but, instead, wanted to receive treatment at AWilmer.@  After appellant refused to accept the drug treatment offered by the trial court, the trial court accepted appellant=s plea of true and assessed his punishment at five years confinement in the penitentiary. The trial court also stated for the record that it had Arevoked@ appellant=s community supervision.  Furthermore, the trial court signed the judgment revoking appellant=s community supervision. 

A Avoid@ or Aillegal@ sentence is one that is not authorized by law.  See Ex parte Johnson, 697 S.W.2d 605, 606‑07 (Tex.Cr.App.1985).  Appellant was convicted of a third degree felony, which is punishable by confinement for a term of not less than two nor more than ten years plus an optional fine.   TEX. HEALTH & SAFETY CODE ANN. '' 481.102 & 481.115 (Vernon Pamph. Supp. 2003); TEX. PENAL CODE ANN. ' 12.34 (Vernon 1994).  When community supervision is revoked, the trial court may proceed to dispose of the case as if there had been no community supervision.  If it determines that the best interests of society and the defendant would be served by a shorter term of confinement, the trial court may reduce the term of confinement that was originally assessed and impose any term of confinement that is not less than the minimum prescribed for the offense.  TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 23 (Vernon Supp. 2003).  Article 42.12, section 23 also provides that the time spent on community supervision shall not be considered as any part of the time that the defendant shall be sentenced to serve. 

We hold that the sentence is not void.  The reporter=s record and the judgment clearly indicate that the trial court revoked appellant=s community supervision and sentenced him to confinement for five years -- the same term of confinement that was originally assessed pursuant to the plea bargain agreement.  The first issue is overruled. 

In the second issue, appellant argues that his right to due process was denied by the trial court=s predetermination of appellant=s sentence. The trial court had stated at the conclusion of the plea hearing, AIf you come in on a motion to revoke, you=re looking at five years in the pen, okay.  Good luck to you.@ Appellant, however, failed to preserve this issue for review.  Appellant did not object to the trial court=s statement at the time it was made, did not file a motion to recuse in the revocation proceedings, and did not at any time raise this issue in the trial court. Because appellant raised this issue for the first time on appeal, we hold that appellant failed to preserve it for review.  TEX.R.APP.P. 33.1; Hull v. State, 67 S.W.3d 215 (Tex.Cr.App.2002)(holding that a due process issue regarding trial court=s Azero tolerance@ policy for probation revocation was not preserved for review when it was raised for the first time on direct appeal). Appellant=s second issue is overruled.    The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

December 5, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.