             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00049-CR
     ___________________________

RODRICK LAWRENCE HURST, Appellant

                      V.

            The State of Texas


  On Appeal from the 432nd District Court
         Tarrant County, Texas
       Trial Court No. 1461897D


Before Sudderth, C.J.; Gabriel and Pittman, JJ.
 Memorandum Opinion by Justice Pittman
                          MEMORANDUM OPINION

      Appellant Rodrick Lawrence Hurst appeals from the trial court’s sentence on

his conviction for assault of a family member by impeding the normal breathing or

circulation of the blood of the person.1 See Tex. Penal Code Ann. § 22.01(a)(1),

(b)(2)(B). In two issues, he contends that the trial court violated his due process and

erred by arbitrarily discounting the statutory option to render a probated sentence.

Because we hold that Appellant invited the trial court’s decision of which he now

complains, we affirm.

                                     DISCUSSION

      The State contends that Appellant invited the error he now alleges. “The

defendant, as a general rule, may not complain on appeal of errors invited by him. An

accused cannot invite error and then complain about it on appeal.” Hess v. State,

953 S.W.2d 837, 840 (Tex. App.—Fort Worth 1997, pet. ref’d); see also Prystash v. State,

3 S.W.3d 522, 531 (Tex. Crim. App. 1999). “This rule applies whether or not the

error is perceived to be fundamental.” Franks v. State, 90 S.W.3d 771, 781 (Tex.

App.—Fort Worth 2002, no pet.). We thus look at the trial record to see if Appellant

invited the trial court to make the error he now complains of.

      Appellant took the stand in the sentencing part of the trial and referenced

probation in his testimony, stating that he could “stay on the right path as far as

      Because Appellant does not challenge the sufficiency of the evidence to
      1

support his conviction, we omit a recitation of the facts. See Tex. R. App. P. 47.1.


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probation is concerned for [his daughter]” and that he “could definitely stay true to

staying on [his] task that probation would require of [him].”

      In his closing argument, Appellant’s attorney stated that “sending him to jail

will not solve the problem of this family” and that “[w]e’re hopeful that he can

complete a period of community supervision.” Appellant’s attorney and the trial

court then had this exchange:

             THE COURT: So, Counsel, I have a quick question for you.

             [Appellant’s Attorney]: Yes, Judge.

             THE COURT: Due to the enhanced nature of it, the only thing
      that I’m able to do is place him on a deferred adjudication—

             [Appellant’s Attorney]: Yes, Your Honor.

             THE COURT:—correct?

            [Appellant’s Attorney]: Yes. And we’re asking for the maximum
      sentence, deferred, ten years.

             THE COURT: Okay. Thank you very much. You may proceed.

             [Appellant’s Attorney]: And so we—we are asking not only with
      regard to that so that he can move on with his life, so that he can try to
      get his physical therapy license, again, so he can become a productive
      member of society, stay a productive member of society and have an
      impact.

             ....

             And we ask that you place him on deferred not only to ensure
      that that relationship—they stay apart from each other, but also you
      have the full range of punishment ahead of you if he is to violate it.
      There is nothing here that—no one here said that they’re afraid of
      [Appellant] or that society should be worried about [him].


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            So I [do not] want it to seem like we’re asking for something
      where we’re taking—taking a jail sentence off the table. If [Appellant]—
      and he’s fully aware of it—if he violates the conditions that you
      place on him, the full range of punishment is available to you,
      Judge. [Emphasis added.]

      Appellant’s attorney reassured the trial court that it was correct in its

understanding that “the only thing that [it was] able to do” was place Appellant on

deferred adjudication, i.e., that “straight” probation was not available.       Further,

Appellant’s attorney specifically “ask[ed] that [the trial court] place him on deferred.”

He also noted that he understood that the trial court would have the full range of

punishment if he violated his conditions, an implicit reference to deferred

adjudication. See Weed v. State, 891 S.W.2d 22, 25 (Tex. App.—Fort Worth 1995, no

pet.) (noting that the availability of the full range of punishment arises in the

revocation of deferred adjudication but not with revocation of straight probation); see

also McCoy v. State, 81 S.W.3d 917, 919 (Tex. App.—Dallas 2002, pet. ref’d).

Accordingly, to the extent the trial court erred by failing to consider straight

probation, Appellant invited that error and may not now complain of it. We overrule

Appellant’s issues.

                                     CONCLUSION

      Having overruled Appellant’s two issues, we affirm the trial court’s judgment.




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                               /s/ Mark T. Pittman
                               Mark T. Pittman
                               Justice

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

Delivered: July 30, 2019




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