Opinion
No. 05-08-01190-CR
Opinion issued August 6, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-45759-WT.
Before Justices WRIGHT, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Daniel Ortega appeals following the adjudication of his guilt for harassing a public servant. In four points of error, appellant generally contends the trial court abused its discretion by (1) ordering this sentence and a sentence imposed for theft to run consecutively; (2) not specifying which allegation it found he violated, and (3) revoking his community service. We overrule appellant's points of error and affirm the trial court's judgment. In his first point of error, appellant contends the trial court erred by ordering his sentence in this case to run consecutively to a sentence imposed for his theft conviction. We disagree. Under article 42.08 of the Code of Criminal Procedure, the trial judge has the discretion to cumulate the sentences for two or more convictions. Smith v. State, 575 S.W.2d 41, 41 (Tex.Crim.App. 1979); Nicholas v. State, 56 S.W.3d 760, 765-66 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). A trial court abuses its discretion when it applies an erroneous legal standard or when no reasonable view of the record supports the trial court's conclusion under the correct law and facts viewed in the light most favorable to its legal conclusion. Nicholas, 56 S.W.3d at 765. As a practical matter, however, an abuse of discretion generally will be found only if the trial court imposes consecutive sentences where the law requires concurrent sentences, where the court imposes concurrent sentences but the law requires consecutive ones, or where the court otherwise fails to observe the statutory requirements pertaining to sentencing. Id. at 765. In short, so long as the law authorizes the imposition of cumulative sentences, a trial judge has absolute discretion to "stack" sentences. Id.; see Quintana v. State, 777 S.W.2d 474, 480 (Tex.App.-Corpus Christi 1989, pet. ref'd) (citing Smith, 575 S.W.2d at 41, and Carney v. State, 573 S.W.2d 24, 27 (Tex.Crim.App. 1978)). When the convictions arise out of the "same criminal episode" and the cases are tried together, the sentences must run concurrently unless the convictions are for certain, specific offenses, in which case the trial court may exercise its discretion to cumulate or stack the sentences. See Tex. Penal Code Ann. § 3.03 (Vernon Supp. 2008); Bargas v. State, 252 S.W.3d 876, 902 (Tex.App.-Houston [14th Dist.] 2008, no pet.); Nicholas, 56 S.W.3d at 765. In a consolidated trial of offenses not arising out of the same criminal episode, the trial court has the absolute discretion to cumulate the sentences. See Nicholas, 56 S.W.3d at 764-66. In this case, appellant was charged in two separate indictments for harassment of a public servant and aggravated robbery. On June 12, 2007, appellant pleaded guilty to harassment of a public servant and the lesser-included offense of theft of the value of $1500 or more but less than $20,000. The trial court accepted appellant's pleas and after the completion of a pre-sentence investigation placed appellant on deferred-adjudication community supervision for three years in each case. Thereafter, the State filed its motions to proceed with an adjudication of guilt, alleging several violations of the terms of appellant's supervision. At the plea hearing, appellant pleaded true to the allegations in the State's motions and the trial court sentenced appellant to two years' confinement in the theft case and ten years' confinement in the harassment of a public servant case. The trial court also ordered the sentences to be served consecutively. There is nothing in the record showing that the theft and harassment of a public servant cases were committed as part of the same criminal episode and appellant does not argue they were part of the same criminal episode. Consequently, on this record, we cannot conclude the trial court abused its discretion by ordering the sentences to be served consecutively. See Nicholas, 56 S.W.3d at 764-65. We overrule appellant's first point of error. In his second and third points of error, appellant contends the trial court's written judgment violates article 42.01 and fails to satisfy the minimum requirements of due process because it does not set out the reasons for revoking his community supervision by specifying which allegations it found had been proven true. The State responds appellant did not request that specific findings be included in the order revoking community supervision, and the trial court is not required to make specific findings. Article 42.01 of the Texas Code of Criminal Procedure sets out the information that shall be contained in a trial court's written judgment. See Tex. Code Crim. Proc. Ann. art. 42.01 § 1 (Vernon 2006). The minimum requirements of due process that must be observed in probation revocation hearings include a written statement by the fact finder as to the evidence relied on and the reasons for revoking probation. See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). However, Texas courts require a defendant to make a request for specific findings. See King v. State, 649 S.W.2d 42, 46 (Tex.Crim.App. 1983). In the absence of such a request, the trial court's failure to make specific findings in the order revoking probation is not reversible error. Id. Appellant neither raised these issues in his motion for new trial nor requested findings or conclusions. Moreover, the motion to adjudicate is included in the record, and the judgment recites that the trial court found the allegations in the motion to adjudicate had been proved. We conclude the judgment adjudicating guilt satisfies article 42.01 of the Texas Code of Criminal Procedure and minimum due process requirements. See Tex. Code Crim. Proc. Ann. art. 42.01 § 1(8). We overrule appellant's second and third points of error. In his fourth point of error, appellant contends the trial court abused its discretion by revoking his community supervision. Among other things, appellant argues the State failed to prove he violated condition (p) of the terms of his community supervision because his plea of true admitted only that he had been arrested for public intoxication. We disagree. Appellate review of an order revoking probation and adjudicating guilt is limited to determining whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006). In determining questions concerning sufficiency of the evidence, the burden of proof is by a preponderance of the evidence. Id. An order revoking probation must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence which would create a reasonable belief that a defendant has violated a condition of his probation. See id at 763-64. A finding of a single violation of community supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. 1980); Leach v. State, 170 S.W.3d 669, 672 (Tex.App.-Fort Worth 2005, pet. ref'd). During the adjudication hearing, appellant pleaded true to, among other things, violating condition (p) in that he "did consume alcohol as evidenced by Public Intoxication offense on December 3, 2007." A plea of true, standing alone, supports revocation of community supervision. See Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. [Panel Op.] 1979). Appellant's admission that he "consumed alcohol," standing alone, is sufficient to support the trial court's judgment adjudicating guilt. See Watts v. State, 645 S.W.2d 461, 463 (Tex.Crim.App. 1983). We conclude the trial court did not abuse its discretion in granting the State's motion and revoking appellant's community supervision. See Rickels, 202 S.W.3d at 763-64. We overrule appellant's fourth point of error. Accordingly, we affirm the trial court's judgment.
Condition (p) of the terms of appellant's community supervision is "DO NOT CONSUME ANY ALCOHOL FOR THE DURATION OF PROBATION TERM."