Opinion
No. 05-16-00885-CR
06-26-2017
LARRY JAMES BUDOW, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court Collin County, Texas
Trial Court Cause No. 401-80851-2012
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Myers
A jury convicted appellant Larry James Budow of aggravated assault with a deadly weapon and assessed punishment at ten years' imprisonment, a fine of $10,000, and recommended the sentence be suspended and that appellant be placed on community supervision. The trial court placed appellant on community supervision according to the jury's recommendation. The State later filed a motion to revoke community supervision that contained three allegations. Appellant entered a plea of not true to each of these allegations. The trial court found the first two allegations true, revoked appellant's community supervision, and sentenced him to ten years in prison and a $10,000 fine. In two issues, appellant argues the trial court abused its discretion by revoking his community supervision and that the court did not provide him an opportunity to present evidence. We affirm.
DISCUSSION
I. Revocation of Community Supervision
In his first issue, appellant contends the trial court abused its discretion by revoking his community supervision on the basis of a conviction that was on appeal.
The State's motion to revoke alleged the following three violations of the conditions of appellant's community supervision:
1: that the defendant has committed an offense against the laws of the State of Texas, to wit: on or about the 5th day of March 2016 in the County of Dallas and State of Texas, the defendant did then and there commit the offense of Assault causing bodily injury;
2: that the defendant has failed to pay court costs of $1,066.04 within 30 days; has paid $1,041.00;
3: that the defendant has failed to pay the fine assessed in the amount of $10[,]209.50 within 30 days; has paid $0.00[.]
During the revocation hearing, the State presented evidence that appellant assaulted Ronald McCallum on March 5, 2016 while on probation for aggravated assault. McCallum testified at the hearing that appellant punched him after a car accident on Central Expressway in Richardson. According to McCallum, he was in a rear-end crash on Central Expressway in Richardson after he improperly crossed into the HOV lane. McCallum stopped his car after the crash, and appellant came up to him, called him a "faggot," and started punching him in the head. McCallum testified he did not fight back. A Dallas police officer who was traveling in the opposite direction, Sergeant Keitric Jones, saw a white man punching at a smaller black man. He reported what he had seen to the police department but did not stop at the scene because of the traffic backup. Officer Lee Nori, the Richardson police officer who responded to the call noted McCallum's injuries—a large abrasion and swelling over one eye—and obtained statements from McCallum, appellant, appellant's wife, and one other witness. Appellant had an injury on his right hand near the knuckle of his index finger, and the responding officer testified this "could be" consistent with punching someone.
Other evidence presented by the State showed that appellant had not paid the ordered court costs and fine. Edgar Espinoza, a Collin County community supervision officer, testified in part as follows:
Q. And at the time of the filing of the motion to revoke on March 18th, 2016, did the defendant have a total court costs of $1,066.04?
A. Yes.
Q. And he had paid as of that date $1,041?
A. Yes.
Q. Also, the time of the filing of the motion to revoke did the defendant have a fine assessed in the amount of $1,209.50—excuse me $10,209.50?
A. Yes.
Q. And to date has he paid zero?
A. Yes.
An appellate court reviews a trial court's order revoking community supervision for abuse of discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). Because the trial judge is the sole judge of the witnesses' credibility and the weight to give the evidence, in determining whether the trial court abused its discretion, an appellate court reviews the evidence in the light most favorable to the order. See id.; Lee v. State, 952 S.W.2d 894, 897 (Tex. App.—Dallas 1997, no pet.) (en banc) (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981)). An appellate court will conclude the trial court abused its discretion if the State failed to meet its burden of proving by a preponderance of the evidence that the probationer violated the terms of community supervision. Lee, 952 S.W.2d at 897. The State meets its burden when the greater weight of the credible evidence creates a reasonable belief that the probationer violated the terms of community supervision during "a time period anterior to the filing of the motion to revoke and within the period of probation." See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)); Diaz v. State, 516 S.W.2d 154, 156 (Tex. Crim. App. 1974). When, as in this case, the State's motion to revoke alleges multiple violations of the terms of community supervision, proof of any one of the alleged violations is sufficient to support the revocation order. See Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009).
Appellant claims the trial court erred in revoking his community supervision because the conviction for the assault on McCallum was on appeal to this Court. It was affirmed in a memorandum opinion issued on April 28, 2017. See Budow v. State, No. 05-16-00572-CR, 2017 WL 1549235 (Tex. App.—Dallas, Apr. 28, 2017, no pet. h.) (mem. op., not designated for publication). But appellant's community supervision was not revoked because he was convicted of another offense; it was revoked because he committed another offense. The State did not put on evidence of a conviction for assault, but rather evidence that appellant committed an assault. The authority on which appellant principally relies, Flores v. State, 102 S.W.3d 336, 337 (Tex. App.—Eastland, 2003, pet. ref'd), is distinguishable because in that case the State sought to revoke Flores on the basis of a murder conviction, but the conviction was not yet final because it had been obtained less than a month before the revocation hearing and Flores had filed a notice of appeal from the conviction. The motion to revoke was based on the conviction, not the commission of the offense. Id. That is not what happened here. Furthermore, appellant does not argue the evidence was insufficient to show he did not pay the court costs of $1,066.04 within thirty days. This alone is a sufficient reason to revoke his community supervision. See Smith, 286 S.W.3d at 342. Therefore, the trial court's decision to revoke appellant's community supervision was proper. We overrule appellant's first issue.
II. Opportunity to Present Evidence
In his second issue, appellant argues the trial court erred by denying him an opportunity to present evidence on sentencing. The State responds that this issue was not preserved or, alternatively, that appellant had an opportunity to present evidence.
The record shows that the defense presented evidence at the revocation hearing, including the testimony of appellant, appellant's wife, and extensive medical records documenting appellant's various medical conditions (e.g., gallstones, high blood pressure, diabetes, and neuropathy in his legs). Before hearing final arguments, the trial court also specifically asked defense counsel if he had any other witnesses or evidence he wanted to present. He replied, "No Your Honor." The trial court then asked, "Do you rest?" Defense counsel nodded his head, according to the record. Both parties then announced that they closed the evidence. In addition, before sentencing appellant, the trial court asked, "Is there any reason in law why I should not impose sentence at this time, Mr. Budow?" Defense counsel replied, "No Your Honor."
We first note that appellant made no objection comporting with his argument on appeal despite having the opportunity to do so. See TEX. R. APP. P. 33.1(a)(1); Euler v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007) ("If appellant wanted an opportunity to present evidence and argument on the question of punishment, it was incumbent upon him to ask for that opportunity and to be ready to present such evidence and argument as soon as the trial court announced its finding that he had violated the conditions of his probation."). Appellant argues he preserved the issue by including it in his amended motion for new trial, but this claim was not timely because the trial court had previously given him the opportunity to present evidence at the revocation hearing. See Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex. Crim. App. 1999) (claim of denial of opportunity to present punishment evidence not preserved when trial court inquired whether defendant had anything to say at pronouncement of sentence). Moreover, even if one assumes the claim was preserved, the law provides no "absolute right to a separate punishment hearing" at a revocation hearing. See id. at 690; see also Euler, 218 S.W.3d at 91- 92 (defendant who was convicted and placed on community supervision had opportunity to present punishment evidence at hearing to revoke supervision and was not entitled to separate punishment hearing). Therefore, based on the record before us, appellant was provided an opportunity to be heard regarding punishment. He was given "the opportunity to present evidence during the proceedings, and that is all that [was] required." Hardeman, 1 S.W.3d at 691. We overrule appellant's second issue.
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. 47
160885F.U05
JUDGMENT
On Appeal from the 401st Judicial District Court, Collin County, Texas
Trial Court Cause No. 401-80851-2012.
Opinion delivered by Justice Myers. Justices Lang and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 26th day of June, 2017.