                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00065-CR
         ______________________________


       FREDRICK LEE SANDERS, Appellant

                          V.

          THE STATE OF TEXAS, Appellee



   On Appeal from the Second Judicial District Court
               Cherokee County, Texas
                Trial Court No. 15912




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                   MEMORANDUM OPINION

       In 2005, Fredrick Lee Sanders entered a plea of guilty in Cherokee County to the offense of

possession of a controlled substance (cocaine)1 and was sentenced to two years' confinement in a

state-jail facility. However, pursuant to a plea agreement, the trial court deferred a finding of guilt

and placed Sanders on community supervision for seven years. The State later filed a motion asking

the trial court to adjudicate Sanders guilty and revoke his community supervision. After a hearing

on that motion, the trial court found Sanders violated the terms of his community supervision by

committing the offense of criminal trespass and by failing to report to his supervising officer; the

trial court then adjudicated Sanders guilty and sentenced him to two years' incarceration. Sanders

then perfected his appeal of that order to the Twelfth Court of Appeals; the Texas Supreme Court

transferred his appeal to this Court pursuant to the Texas Supreme Court's docket equalization

program. See TEX . GOV 'T CODE ANN . § 73.001 (Vernon 2005).

       Sanders's complaint on appeal is that the trial court erroneously considered his failure to

testify at the revocation hearing and used that failure to testify in determining his sentence. After

presentation of evidence and argument by counsel, the trial court stated:

       It may be the two years in state jail is not going to address the drug issue as SAFPF2
       would. [Defendant] hadn't indicated any desire to go to SAFPF which would be an
       indication that he wanted some help in that regard. But there comes a time with a



       1
           TEX . HEALTH & SAFETY CODE ANN . § 481.115 (Vernon 2003).
       2
           See TEX . GOV 'T CODE ANN . § 493.009 (Vernon Supp. 2008).

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       history like this and new offenses, not complying with probation, that you have got
       to do something.

Sanders complains, based on the United States3 and Texas Constitutions,4 the trial court acted to

deny Sanders his basic constitutional protections against compelled testimony.

       We disagree with Sanders's view of the record. We find that rather than commenting on

Sanders's failure to testify, the trial court simply was referencing evidence presented by one of the

State's witnesses.

       Early in the hearing, Sanders's community supervision officer, Nancy Scruggs, testified that

she had supervised Sanders for about a year and a half, that Sanders had a drug abuse problem which

impeded his ability to maintain steady employment, and that on three or four occasions, she had

discussed SAFPF with Sanders, but that "he didn't want to go to SAFPF." Scruggs went on to opine

that it was her opinion that Sanders needed intensive in-patient therapy for his addictions (as opposed

to mere counseling), noting that although he had been admitted to four different facilities offering

such counseling therapy, he had never stayed to complete any of the programs.

       Sanders cites Carroll v. State, 42 S.W.3d 129 (Tex. Crim. App. 2001), to support his

argument. Sanders is correct that Carroll held that a defendant has a Fifth Amendment right against

self-incrimination at sentencing and that in that case, the trial court erred by instructing Carroll to

the contrary and then considering Carroll's invocation of that right against her when determining her


       3
           See U.S. CONST . amend. V.
       4
           See TEX . CONST . art. I, § 10.

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punishment. Id. at 133. However, the factual underpinnings of that case were substantially different

from those at Sanders's adjudication hearing. Carroll pled guilty and testified at the guilt/innocence

phase of trial that the State's allegations were true. At a later punishment hearing, the trial court told

Carroll's attorney that should Carroll avail herself of her right against self-incrimination, the court

would consider that invocation as a circumstance against her when determining her punishment.

Conversely, the trial court's statement here reflected evidence which had been adduced at the

hearing: that Sanders had told his supervision officer he did not want to go to a SAFPF and that

Sanders had failed on four other occasions to complete in-patient treatment programs. Cf. Cruz v.

State, 225 S.W.3d 546, 549–50 (Tex. Crim. App. 2007) (prosecutor's closing jury arguments referred

to defendant's own written statement which had been admitted into evidence and was, therefore, not

a comment on defendant's failure to testify); Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.

2004) (when defendant makes a statement which is admitted into evidence, the State's references to

statement and comparison between the statement and other evidence collected is not a comment on

defendant's failure to testify or his right to remain silent).

         The trial court's statements here were not a comment on Sanders's failure to testify. The trial

court merely made reference to testimony which had been presented regarding Sanders's lack of

interest in entering a SAFPF; nothing in his counsel's arguments or statements to the trial court

indicated Sanders wanted to be considered for such a program. We overrule Sanders's points of

error.



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      We affirm the judgment.




                                        Bailey C. Moseley
                                        Justice

Date Submitted:    September 11, 2008
Date Decided:      October 7, 2008

Do Not Publish




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