Opinion filed July 3 , 2014



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 13

- 00221

- CR

__________ ANDRES JAVIER VASQUEZ A/K/A ANDRES RAGAN VASQUEZ , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 432nd District Court Tarrant County, Texas Trial Court Cause No. 1155276 D

M E M O R A N D U M O P I N I O N Andres Javier Vasquez a/k/a Andres Ragan Vasquez pleaded guilty to the
offense of intentionally or knowingly committing injury to a child causing bodily injury. See T EX

. P ENAL C ODE A NN

. § 22.04 (a)(3), (f) (West Supp. 2013 ). The trial
court deferred the adjudication of Appellant’s guilt and placed him o n community supervision for a term of five years. Subsequently, the State moved to adjudicate2 Appellant’s guilt based upon allegations that Appellant had violated a term and condition of his community supervision . After a hearing, the trial court adjudic ated Appellant’s guilt of the original offense and assessed his punishment at confinement for eight years. Through one issue on appeal, Appellant contends that his sentence violated his right to due process under the Fourteenth Amendment to
the United Sta tes Constitution. We modify and affirm.
I. B ackground One of the terms of Appellant’ s community supervision required him to
avoid harmful contact with CV, Appellant’s minor son , who was the victim in the underlying case

. In its petition to adjudicate, the State alleged that Appellant had recently had injurious contact with CV. At the hearing on the motion , Appellant pl ea d ed “true” to the allegation. After hearing evidence from the State and Appellant, the trial court sen tenced Appellant to confine ment for a term of eight

years. II. Analysis Appellant contends that his sentence violated his due process rights under
the Fourteenth Amendment. Appellant claims that his punishment was funda

mentally unfair due to the fact that the trial court clearly refused to consider the mitigating evidence he presented during the hearing

. In response, the State argues
that
, because Appellant did not object to a due process violation in open court or in
h is motion for new trial, he has failed to pr eserve the complaint on appeal. Texas Rule of Appellate Procedure 33.1 (a) provides in part that
, as a prerequisite to presenting a complaint for appellate review, a timely request, objection
, or motion must be made and ruled upon by the trial court. T EX

. R.
A PP

. P. 33.1 (a). This requirement ensures that trial courts are provided an opportunity to correct their own mistakes at the most convenient and appropriate
time

— when the mistakes are all eged to have been made. See Vidaurri v. State , 493 S.W.3d 880, 886 (Tex. Crim. App. 2001); Aguilar v. State , 26 S.W.3d 901, 905

– 06 (Tex. Crim. App. 2000). This requirement applies even when the issue on appeal alleges a deprivation of due process. Cole v. State , 931 S.W.2d 578, 580 (Tex. App.

— Dallas 1995, pet. ref’d) (stating that “the defendant waives any due process complaint when he does not object to the punishment or to the failure to consider the evidence”). Appellant makes the due process argument for the first time on appeal. Appellant did not object when the trial court pronounced his sentence

. Moreover,
in his m otion for n ew t rial , Appellant argued only that his sentence was
“unreasonable and unsu pported by the facts presented

. ” Appellant has therefore
failed to preserve the issue for our review. See T EX

. R. A PP

. P. 33.1 (a).
E ven if we were to assume, without deciding, that the issue was preserved
for our consider ation, we find no merit in Appellant’s claim

. Due process requires
trial courts to be neutral and detached in assessing punishment. Brumit v. State , 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). A trial court denies a defendant due process when it refuses to consider the evidence and imposes a predetermined

sentence or when it arbitrarily refuses to consider the full range of punishment

a vailable for an offense

. See McClenan v. State , 661 S.W.2d 108, 110 (Tex. Crim. App. 1983); Jaenicke v. State , 109 S.W.3d 793, 796 (Tex. App.

— Houston [1st Dist.] 2003, pet. ref’d). Absent a clear showing to the contrary, we presume that
the trial court was neutral and detached in assessing punishment

. See Brumit , 206 S.W.3d at 645; Jaenicke , 109 S.W.3d at 796. At the hearing on the petition to adjudicate his guilt, Appellant presented evidence of his compliance with most of the conditions of his community supervision , and he now argues that his eight

- year sentence proves that the trial court ignored this mitigating evidence. Appellant’s argument fails to give effec t to the aggravating evidence presented to the trial court, which included testimony by4 the victim detailing the physical assaults he suffered at the hands of Appellant and the victim’s statement that he wanted Appellant to go to prison. The range of punishment for the offense at issue in this case is two to ten

years ’ con finement, and Appellant’s sentence of eight years ’ confinement is within
this range. See P ENAL § 12.34 (West 2011), § 22.04(f)

. Because n othing in the
record indicates that the trial court ignored Appellant’s mitigating evidence or that it arbitrarily refused to consider the full range of punishment available , w e conclude that Appellant’s due process rights were not violated in this case. Accordingly, Appellant’s sole i ssue is overruled.
III. Modification of Judgment We note that the judgment adjudicating guilt reflects that Appellant was convicted of the offense of intentionally or knowin g ly committing the offense of “JURY” to a child causing bodily injury. We modify the judgment to correct that
mistake. See T EX

. R. A PP

. P. 43.2.
I V

. This Court’s Ruling
We modify the judgment of the trial court to reflect that Appellant was
convicted of the offense of “INTENTIONALLY OR KNOWINGLY COM

MITTING THE OFFENSE OF INJURY TO A CHILD CAUSING BODILY INJURY.” As modified, the judgment is affirmed.

MIKE WILLSON
JUSTICE July 3 , 2014 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.