Affirm as Modified and Opinion Filed July 24, 2013




                                             In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-12-01260-CR

                         DONAVAN DEWAYNE WADE, Appellant

                                               V.

                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 283rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F11-58212-T

                              MEMORANDUM OPINION
                         Before Justices O’Neill, Francis, and Fillmore
                                  Opinion by Justice Francis

       Donavan Dewayne Wade appeals from the revocation of his community supervision. In

a single issue, appellant contends the trial court violated his right to due process by prejudging

his punishment. We affirm the trial court’s judgment.

       Appellant waived a jury and pleaded guilty to possession of cocaine in an amount less

than one gram. Appellant also pleaded true to two enhancement paragraphs. The trial court

found appellant guilty and the enhancement paragraphs true. The court assessed appellant’s

punishment at imprisonment for ten years, probated for five years. The trial court ordered that
appellant be released “only to the intermediate sanction facility substance abuse track,” and then

to the “intensive out-patient program.” The trial judge stated:

                This is your last chance because of the conviction you had in 2002
                there is absolutely no other place that I can send you for treatment.
                Period. So if you are not successful in this program with the after-
                care, my only options at that point are to send you to the
                penitentiary.

         The State later moved to revoke appellant’s community supervision, alleging appellant

violated the conditions of his community supervision by testing positive for phencyclidine on

three occasions, failing to pay probation fees, and being unsuccessfully discharged from the

intensive outpatient program. Appellant pleaded true to the allegations in a hearing on the

motion.    After appellant testified, and before closing arguments, the trial judge reminded

appellant about his previous statement that due to a 2002 conviction, there was no other place

appellant could be sent for treatment and the court’s only option would be to send appellant to

prison if he was not successful with the aftercare. Appellant said he remembered the warning.

The trial court granted the State’s motion, revoked appellant’s community supervision, and

sentenced appellant to imprisonment for four years.

         Appellant contends the trial court violated his due process rights when it prejudged his

punishment. Appellant complains the trial judge determined the sentence at the time of the

original plea and sentencing and not at the time of appellant’s revocation hearing. Appellant

asserts the trial judge refused to consider mitigating evidence as to punishment and treatment, as

evidenced by the judge’s statements reminding appellant of the promise to send him to prison.

The State responds appellant did not preserve this issue for appellate review and, alternatively,

the trial judge’s comments are too ambiguous to allow this Court to resolve the prejudgment

issue.



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          Appellant did not complain about the sentence either at the time it was imposed or in a

motion for new trial. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723

(Tex. App.—Dallas 2003, no pet.). Thus, appellant has not preserved this issue for appellate

review.

          Moreover, the trial court reduced appellant’s original prison sentence from ten years to

four years, which was on the low end of the sentencing range. See TEX. PENAL CODE ANN.

§ 12.34(a) (West 2012); TEX. HEALTH & SAFETY CODE ANN. § 481.115(b).                    Rather than

indicating the trial court predetermined appellant’s sentence, read as a whole, the comments

indicate the trial court was reminding appellant that there were limited sentencing options

available to the court We conclude the record does not support appellant’s claim that the trial

court prejudged the sentence. We resolve appellant’s sole issue against him.

          Appellant’s name is misspelled in the written judgment.         Accordingly, we modify the

judgment revoking community supervision to show the correct spelling of appellant’s name is

Donavan Dewayne Wade. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28

(Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.─Dallas 1991, pet.

ref’d). As modified, we affirm the trial court’s judgment.




                                                         
Do Not Publish                                           
TEX. R. APP. P. 47                                       
121260F.U05                                             /Molly Francis/
                                                        MOLLY FRANCIS
                                                        JUSTICE
 
 
 
 



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                               Court of Appeals
                        Fifth District of Texas at Dallas

                                       JUDGMENT


DONAVAN DEWAYNE WADE,                                 Appeal from the 283rd Judicial District
Appellant                                             Court of Dallas County, Texas (Tr.Ct.No.
                                                      F11-58212-T).
No. 05-12-01260-CR       V.                           Opinion delivered by Justice Francis,
                                                      Justices O’Neill and Fillmore participating.
THE STATE OF TEXAS, Appellee



     Based on the Court’s opinion of this date, we MODIFY the judgment revoking
community supervision to correct the spelling of appellant’s name to Donavan Dewayne Wade.

      As modified, we AFFIRM the judgment revoking community supervision.



      Judgment entered July 24, 2013



                                                   
                                                   
                                                   
                                                  /Molly Francis/
                                                  MOLLY FRANCIS
 
                                                  JUSTICE
 

 




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