                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00291-CR

JOSEPH ROBERT MCELWAIN, JR.,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 249th District Court
                             Johnson County, Texas
                             Trial Court No. F46929


                          MEMORANDUM OPINION


      Joseph Robert McElwain, Jr. was convicted of burglary of a habitation and

sentenced to 15 years in prison. See TEX. PENAL CODE ANN. § 30.02(c)(2) (West 2011).

Because the trial court erred in assessing attorney's fees, the assessment of attorney's

fees is deleted from the judgment; and trial court's judgment is affirmed as modified.

DUE PROCESS-FULL RANGE OF PUNISHMENT

      In his first issue, McElwain contends the trial court violated his due process
rights when it “arbitrarily” refused to consider the entire range of punishment and

refused to consider mitigating evidence in determining McElwain’s punishment. A trial

court denies due process of law and due course of law when it arbitrarily refuses to

consider the full range of punishment for an offense or refuses to consider the evidence

and imposes a predetermined sentence. Ex parte Brown, 158 S.W.3d 449, 454 (Tex. Crim.

App. 2005); Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref'd).

But a defendant can waive complaints of due process violations by failing to object in

the trial court. Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) ("Indeed,

our prior decisions make clear that numerous constitutional rights, including those that

implicate a defendant's due process rights, may be forfeited for purposes of appellate

review unless properly preserved.").

        It is undisputed McElwain did not make a due-process objection in the trial

court.1 Accordingly, McElwain failed to preserve his complaint for appellate review,

and his complaint is waived. See TEX. R. APP. P. 33.1. His first issue is overruled.2

ATTORNEY’S FEES

        In his second issue, McElwain argues that the evidence is legally insufficient to

support the trial court’s assessment of court-appointed attorney’s fees against

McElwain.       The State agrees that the evidence is insufficient in this regard.                      In

1McElwain argued in his motion for new trial that his sentence was disproportionate and amounted to
cruel and unusual punishment. This is not the same theory raised on appeal.

2 Even if McElwain had preserved this issue for review, there is nothing in the record to indicate that the
trial court failed to consider the full range of punishment or the mitigating evidence McElwain presented.

McElwain v. State                                                                                   Page 2
accordance with the opinion of the Court of Criminal Appeals in Mayer v. State, 309

S.W.3d 552, 557 (Tex. Crim. App. 2010), we agree that the evidence was insufficient and

the judgment should be modified to delete this assessment. McElwain's second issue is

sustained.

CONCLUSION

       The evidence was insufficient for the trial court to have assessed attorney's fees

in the judgment, therefore, that assessment is deleted and the judgment is modified to

show that the amount of costs owed by McElwain is $296.00 for court costs and no

attorney's fees. Having found no other reversible error, we affirm the trial court's

judgment as modified.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed July 3, 2014
Do not publish
[CR25]




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