Opinion
No. 05-10-00811-CR
Opinion Filed February 7, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-18811-R.
Before Justices MORRIS, FRANCIS, and MURPHY.
MEMORANDUM OPINION
James Sturdevant appeals the revocation of his community supervision. In a single point of error, appellant contends he "was denied due process of law when the trial court revoked his probation based, in part, on an improper ex parte communication." We affirm the trial court's judgment. Appellant waived a jury and pleaded guilty to driving while intoxicated-third offense. See Tex. Penal Code Ann. §§ 49.04(a), 49.09(b)(2) (West 2003 Supp. 2010). Pursuant to a plea agreement, the trial court assessed punishment at ten years' imprisonment, probated for five years, and a $1000 fine. Almost a year later, on January 8, 2010, the State moved to revoke appellant's community supervision, alleging he violated four conditions. On March 31, 2010, the trial court modified the conditions and continued appellant on community supervision. The State again moved to revoke appellant's community supervision on June 1, 2010, alleging appellant violated six conditions. At the revocation hearing, appellant pleaded true to all allegations. The trial court found the allegations true, revoked appellant's community supervision, and assessed punishment at ten years' imprisonment and a $1000 fine. Appellate review of an order revoking community supervision 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). Here, however, appellant does not challenge the findings or his plea of true to the allegations; rather, he argues he was denied due process because the trial judge's comments made after imposing the sentence revealed a "bias gained from an extra-judicial source." Appellant asserts the trial judge "engaged in communications with [him] that are not of record, and not pursuant to any scheduled hearing, and at a time that [he] had no appointed attorney." For support of his claim, appellant cites the trial judge's statements following imposition of the sentence:
[THE COURT]: You were on parole when you picked up this case, you had five prior convictions, felonies, and you had a chance on probation. And from everything I've read and heard you just thought it was a big joke. So you can do your ten years, you'll be on parole again, and you can treat that as a joke and probably pick up another case.(Emphasis added by appellant). Claiming he suffered prejudice because the trial court based its findings on information procured from appellant in an ex parte setting, appellant seeks reversal. A judge is prohibited from initiating, permitting, or considering ex parte communications concerning the merits of a pending case. Tex. Code Jud. Conduct, Canon 3(B). An ex parte communication is one that involves fewer than all the parties who are legally entitled to be present during the discussion of any matter. Erskine v. Baker, 22 S.W.3d 537, 539 (Tex. App.-El Paso 2000, pet. denied). The purpose of prohibiting such communications is to ensure all legally-interested parties are given their full right to be heard. Id. Contrary to appellant's assertions, nothing in the record shows the trial court had an ex parte communication with appellant or that the trial court's judgment was based on information procured in an ex parte setting. Both appellant and the prosecutor were present during the judge's comment, and none of the parties objected to the comment. While a single violation of community supervision is sufficient to support revocation, Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980), appellant had pleaded true to all of the allegations and sentence had been pronounced prior to the judge's comment. See also Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979). In addition to the absence of any evidence of an ex parte communication, the record shows the trial judge, about whom appellant now complains, was the judge who previously accepted the guilty plea and suspended the ten-year sentence that was ultimately revoked. The motion before the trial court was the second request for revocation, was based on six alleged violations of community supervision, and the trial court heard appellant's testimony offering multiple excuses for disregarding the terms of his community supervision. From this record, we conclude appellant's due process rights were not violated. We overrule appellant's sole point of error and affirm the trial court's judgment.