Opinion
No. 05-16-00571-CR
06-27-2017
LAZARO SANTIAGO VELEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1252451-Q
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Bridges
Appellant Lazaro Santiago Velez pleaded guilty to aggravated robbery with a deadly weapon and was placed on five years deferred adjudication. The State filed a motion to revoke probation and adjudicate guilt for violating certain conditions of his probation, which included committing aggravated assault with a deadly weapon on or about June 13, 2014. The State later amended its motion and appellant pleaded not true to the allegations. The trial court found the aggravated assault with a deadly weapon allegation true and the remaining allegations, which included failure to pay certain fees, complete community service, and report when necessary, not true. The court then sentenced appellant to fifteen years' confinement.
He pleaded true to one enhancement based on a 2007 conviction for aggravated robbery.
Appellant argues the trial court abused its discretion by adjudicating his guilt due to a fatal variance in the amended motion to adjudicate. Specifically, he argues the amended motion to adjudicate alleged he violated condition (a) "on or about 06/13/2014 in Dallas County, Texas," by committing aggravated assault with a deadly weapon, but the evidence proved the offense occurred on June 13, 2015.
He further asks this Court to reform the judgment to properly reflect the trial court's finding of true to only one allegation in the amended motion to adjudicate. As reformed, we affirm the trial court's judgment.
The State presented the following facts during the revocation hearing. On June 13, 2015, appellant and a friend tried to get into Dallas Cabaret South, a strip club, but were refused admission because appellant was on a banned customer list. When they returned to the parking lot, appellant's friend got into a verbal altercation with another man.
Renfred Arnold, who was working security outside the club, thought the situation was escalating so he began to pay more attention. He noticed appellant holding a gun. Another individual in the parking lot pulled a gun on appellant so appellant put his gun in his pocket. Arnold felt he needed to disarm appellant, and Arnold in fact succeeded.
Arnold escorted appellant and his friend back towards the club for safety reasons. As they neared the club's entrance, appellant attacked Arnold and tried to retrieve the gun. During the struggle, appellant fired the gun and shot another security officer, Deandré Gilkey, in the leg.
Michael Davis, the club's general manager, testified he was working on June 14, 2015. As he counted money in an office, he heard yelling and screaming. He then saw an altercation on the outside surveillance monitor and heard gunfire. When he went to the main area inside the club, he saw Gilkey by the bar with a gunshot wound to the leg. Davis later identified appellant from the security tapes.
We review a trial court's decision to revoke probation and adjudicate guilt for an abuse of discretion, taking into account the sufficiency of the evidence supporting the basis for revocation. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). The State must prove a ground for revocation of probation by a preponderance of the evidence. Id. at 864-65. Proof by a preponderance of the evidence of any one alleged violation is sufficient to revoke community supervision and adjudicate guilt. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009). The trial court is the sole judge of witnesses' credibility and the weight to be given their testimony. Hacker, 389 S.W.3d. at 865.
A probationer is entitled to a written motion to revoke that fully informs him of the violation of a term of probation which he is alleged to have breached. Garner v. State, 545 S.W.2d 178, 179 (Tex. Crim. App. 1977). However, all that is required is that the motion to revoke fully and clearly set forth the basis on which the State seeks revocation so that a defendant and his counsel have notice. Leyva v. State, 552 S.W.2d 158, 162 (Tex. Crim. App. 1977).
The fatal variance doctrine stands for the proposition that a variance between the indictment and the evidence at trial may be fatal to a conviction because due process guarantees the defendant notice of the charges against him. Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995). The fatal variance doctrine is applicable to revocations of community supervision. Jones v. State, No. 05-01-00460-CR, 2001 WL 1329428, at *1 (Tex. App.—Dallas Oct. 30, 2001, no pet.) (not designated for publication). A variance between the wording of an indictment and the evidence presented at trial is fatal only if it is material and prejudices the defendant's substantial rights. Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). A defendant's substantial rights are threatened if the variance either operates to surprise the defendant thereby failing to sufficiently inform him of the charges in order to allow him an opportunity to prepare a defense or would allow a second prosecution of the same crime. Id. Only a material variance is fatal. Id.
In this case, the State concedes there is a variance between the date of the offense alleged in the motion to revoke and the evidence adduced during the hearing. The State argues the variance is not material, and therefore, not fatal to the trial court's finding. We agree.
Appellant did not claim in the trial court, nor does he claim on appeal, that the different date misled or surprised him as to the charges against him and what he needed to defend against. To the contrary, the record reflects he understood the basis for revocation and presented a defense. Defense counsel cross-examined witnesses on how it was possible for appellant to discharge the weapon when Arnold testified he had his hand on the trigger. Defense counsel also argued appellant had a right to try and retrieve the gun because it was his property. Thus, appellant presented a defense challenging the ground for revocation. Moreover, the record indicates he received offense reports, witness interviews, surveillance videos, and the 9-1-1 audio recording one week before the hearing.
The State raised the incorrect indictment date to the trial court during the hearing. Multiple witnesses testified the incident occurred on June 13, 2015. Appellant never objected, argued a fatal variance existed, or indicated he was surprised and therefore prejudiced in presenting his defense.
We conclude that the motion to revoke, as written, informed appellant of the charge against him sufficiently to allow him to prepare an adequate defense at the revocation hearing; therefore, the variance was immaterial and not fatal to the trial court's finding. We overrule appellant's first issue.
In his second issue, appellant asserts the trial court failed to accurately reflect which condition of his probation he violated. He argues the judgment should reflect the trial court's finding that he violated condition (a) of his community supervision. The State agrees. An appellate court has the authority to modify an incorrect judgment to make the record speak the truth when it has the necessary information to do so. See TEX. R. APP. P. 43.2; Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd).
At the hearing on the State's amended motion, the trial court found appellant violated condition (a) but stated appellant did not violate conditions (d), (h), (j), (l), and (n). The trial court's judgment states: "the Court FINDS THE FOLLOWING: . . . (5) While on community supervision, Defendant violated the terms and conditions of community supervision as set out in the State's AMENDED Motion to Adjudicate Guilt as follows: See attached Motion to Adjudicate." However, the State's motion is not attached.
We conclude the record contains the necessary information for us to reform the judgment to show the trial court found appellant violated condition (a) of his community supervision as alleged in the State's amended motion to revoke. We sustain appellant's second issue.
As modified, we affirm the trial court's judgment.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160571F.U05
JUDGMENT
On Appeal from the 204th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1252451-Q.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
We DELETE the words "(5) While on community supervision, Defendant violated the terms and conditions of community supervision as set out in the State's AMENDED Motion to Adjudicate Guilt as follows: See attached Motion to Adjudicate" and replace them with "(5) While on community supervision, Defendant violated condition (a) by violating the laws of the State of Texas in that on or about 06/13/2015 in Dallas County, Texas, he did commit the offense of Aggravated Assault with a Deadly Weapon as alleged under cause number F1575972."
As REFORMED, the judgment is AFFIRMED. Judgment entered June 27, 2017.