Renteria v. State

Full title: DAVID RENTERIA, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Eighth District, El Paso

Date published: Apr 22, 2004

No. 08-02-00329-CR (Tex. App. Apr. 22, 2004)

Opinion

No. 08-02-00329-CR.

April 22, 2004. DO NOT PUBLISH.

Appeal from the 243rd Judicial District Court of El Paso County, Texas, (Tc# 20000D03874).

Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.

MEMORANDUM OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a trial court's Judgment Revoking Probation. We affirm the order of the trial court.

I. SUMMARY OF THE EVIDENCE

The record establishes that on September 11, 2000, judgment and sentence was entered against Appellant for the felony offense of driving while intoxicated third or more offense. Appellant was sentenced to a term of ten (10) years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice, probated under certain terms and conditions. The pertinent terms and conditions of probation set out as follows:

a. Commit no offense against the laws of this State or of any other State (including municipal ordinances), or of the United States of America.

b. Avoid injurious or vicious habits, to wit:

(1) You shall not purchase, sell, consume, possess or transport any alcoholic beverage, or any dangerous drug or controlled substance as set out in the laws of this state, except upon prescription of a person licensed to prescribe the same.

. . .

h. Remain within:

. . .

5. You shall be subject to curfew and be within your place of residence, as previously designated, between the hour of 7:00 p.m. and 7:00 a.m. each and every day, unless suitably employed during those same hours.

. . .

x. You shall not operate a motor vehicle unless the vehicle is equipped with a device that uses a deep-lung breath analysis mechanism. You shall be responsible for the cost of obtaining and maintaining such mechanism.

. . .

Appellant is alleged to have committed the offense of capital murder on November 18, 2001. On December 6, 2001, Appellant filed his Motion for Findings of Fact in the probation revocation hearing. On January 24, 2002, the State of Texas filed its Motion to Revoke Probation alleging as follows:

3. Thereafter, to-wit: on or about the 18th day of November, 2001, in the County of El Paso and the State of Texas, the said defendant, David Renteria, did then and there commit the offense of Capital Murder, in violation of condition "a." of the terms and conditions of his community supervision.

Further, to-wit: on or about the 18th day of November, 2001, in the County of El Paso and the State of Texas, the said defendant, David Renteria, did then and there purchase, consume, possess, transport and alcoholic beverage without the express permission of this Court as obtained through his Supervision Officer, in violation of condition "b.(1)" of the terms and conditions of his community supervision.

Further, to-wit: on or about the 18th day of November, 2001, in the County of El Paso and the State of Texas, the said defendant, David Renteria, did then and there fail to be within his place of residence between the hours of 7:00 pm and 6:00 a.m., in violation of condition "h.(5)" of the terms and conditions of his community supervision.

Further, to-wit: on or about the 18^th day of November, 2001, in the County of El Paso and the State of Texas, the said defendant, David Renteria, did then and there operate a motor vehicle that was not equipped with a device that uses a deep-lung breathing analysis mechanism, in violation of condition "x." of the terms and conditions of his community supervision.

Further, to-wit: on or about the 3rd day of December, 2001, in the County of El Paso and the State of Texas, the said defendant, David Renteria, did then and there operate a motor vehicle that was not equipped with a device that uses a deep-lung breathing analysis mechanism, in violation of condition "x." of the terms and conditions of his community supervision.

The record further shows that on June 10, 2002 a hearing was held on the State's Motion to Revoke Probation. The trial court's Judgment Revoking Probation specifically notes that the paragraph violated and the Grounds for Revocation included:

a. Commit no offense against the laws of this State or of any other State (including municipal ordinances), or of the United States of America.

b. Avoid injurious or vicious habits, to wit: (1) You shall not purchase, sell, consume, possess or transport any alcoholic beverage, or any dangerous drug or controlled substance, etc. . . .

h. Remain within: 5. You shall be subject to curfew and be within your place of residence, as previously designated, between the hour of 7:00 p.m. and 7:00 a.m. each and every day, unless suitably employed during those same hours.

x. You shall not operate a motor vehicle unless the vehicle is equipped with a device that uses a deep-lung breath analysis mechanism. You shall be responsible for the cost of obtaining and maintaining such mechanism.

The trial court's Judgment Revoking Probation additionally notes the factual allegations as set forth above in the paragraph 3 of the State's Motion to Revoke Probation. Finally, trial court's Judgment Revoking Probation stated as follows:

The Court proceeded to hear evidence on said Motion and after hearing said evidence and the arguments of counsel and considering the same and the law, the Court is of the opinion and so holds that the Defendant violated the terms of such probation in the respect set out in paragraphs a.b.(1)h.5.x. of Section 3 in said Motion to Revoke Adult Probation.

II. DISCUSSION

In his sole issue on review, Appellant suggests that the trial court erred in failing to enter findings of fact and conclusions of law upon which Appellant's revocation of probation was based. Specifically, he complains that the trial court's Judgment Revoking Probation is insufficient to inform Appellant as to which violations of probation were found by the trial court; and further, that the trial court's Judgment Revoking Probation is not clear in setting out the findings of fact and conclusions of law upon which such revocation was based. We disagree. It is clear that due process requires that a probationer know with some specificity the reasons why the State seeks to revoke his or her probation. See Garcia v. State, 488 S.W.2d 448, 449 (Tex.Crim.App. 1972). In that regard, once a probationer has timely requested the trial court to enter findings of fact upon which a revocation is based, a trial court errs for failing to enter such findings of fact. Tate v. State, 365 S.W.2d 789, 791 (Tex.Crim.App. 1963); Joseph v. State, 3 S.W.3d 627, 639 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Reversal of a trial court's judgment revoking probation is particularly warranted where the trial court's failure to make such findings impedes appellate review of the trial court's decision. See Ford v. State, 488 S.W.2d 793, 795 (Tex.Crim.App. 1972). Nonetheless, a trial court is not required to issue separate findings of fact if the judgment revoking probation informs the probationer, and this Court, of the grounds for the revocation. See Sapington v. State, 508 S.W.2d 840, 842 (Tex.Crim.App. 1974); Joseph, 3 S.W.3d at 640. Such is the case before us. As noted above, record in the instant case shows a detailed Motion to Revoke Probation. The Motion to Revoke details both the specific conditions of probation alleged to have been violated as well as the factual assertions underlying each allegation. After a hearing on June 10, 2002, the trial court entered its Judgment on Revocation which once again specifically sets out the conditions of probation alleged to have been violated and the factual assertions underlying each allegation. Finally, the trial court's Judgment on Revocation notes that after hearing the evidence and the arguments of counsel and considering the same and the law, "the Court is of the opinion and so holds that the Defendant violated the terms of such probation in the respect set out in paragraphs a.b.(1)h.5.x. of Section 3 in said Motion to Revoke Adult Probation." While in a probation revocation hearing it might be a better practice for a trial court to indeed enter separate findings of fact, we find in the instant case Appellant was given more than adequate notice of the reasons why his probation was revoked. Appellant's sole issue on review is overruled. Having overruled Appellant's sole issue on review, we affirm the judgment of the trial court.