No. 05-07-00830-CR
Opinion Filed April 7, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 292nd Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-41337-PJV.
Before Justices MORRIS, FITZGERALD, and LANG.
DOUGLAS S. LANG, JUSTICE.
Billy Joe Wood appeals following the adjudication of his guilt for aggravated robbery. In two points of error, appellant contends the trial court abused its discretion by proceeding to adjudication and finding him guilty, and the judgment should be modified to show appellant pleaded not true to the motion to adjudicate. We affirm the trial court's judgment as modified.
Prior to June 15, 2007, no appeal could be taken from the trial court's determination to adjudicate guilt. See Act of May 7, 1975, 64th Leg., R.S., ch. 231, § 1, 1975 Tex. Gen. Laws 572, 572-73, amended by Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397 (intervening amendments not included). Complaints could be raised regarding issues unrelated to the adjudication of guilt. See Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex.Crim.App. 2006). Effective June 15, 2007, article 42.12, section 5(b) was amended to provide for appellate review of the decision to adjudicate guilt in the same manner as the revocation of regular community supervision under article 42.12, section 21. See Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397. Appellant was adjudicated after the effective date of the amendment; therefore, we apply the current version of the statute to this appeal.
Adjudication of Guilt
In his first point of error, appellant argues the trial court abused its discretion by revoking his community supervision and adjudicating him guilty because (1) the State failed to prove he violated the terms of his community supervision by committing a new offense, and (2) appellant denied he committed the new offense. The State responds that the evidence supports the trial court's decision to revoke appellant's community supervision and adjudicate him guilty. Appellate review of a probation revocation is limited to determining whether the trial court abused its discretion, and we examine the evidence in the light most favorable to the trial court's findings. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984). The State must prove by a preponderance of the evidence that appellant violated the conditions of his probation. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App. 1993). In a revocation proceeding, the trial judge is the sole trier of the facts, and determines the credibility of the witnesses and the weight to be given to the testimony. See Lee v. State, 952 S.W.2d 894, 897 (Tex.App.-Dallas 1997, no pet.) (en banc). In its motion to proceed with adjudication, the State alleged appellant violated the terms of his community supervision by committing a new possession of marijuana offense. During the hearing on the motion, the trial judge admitted into evidence a certified copy of a judgment placing appellant on deferred community supervision for the marijuana offense, as well as a stipulation of evidence signed by appellant that he was the same individual placed on deferred community supervision in that case. During his testimony, appellant denied he committed the offense. According to appellant, police officers found marijuana in a backpack that appellant was carrying. Although appellant had the backpack, it and the marijuana belonged to a companion who was stopped with appellant. The trial judge, as fact finder, was entitled to reject appellant's explanation of the offense. Because the preponderance of the evidence is sufficient to prove appellant violated a condition of his community supervision, the trial court did not abuse its discretion in revoking appellant's community supervision. See Cardona, 665 S.W.2d at 493-94; Cobb, 851 S.W.2d at 874. We overrule appellant's first point of error. Modify Judgment
In his second point of error, appellant asks this court to modify the trial court's judgment to show he pleaded not true to the allegations in the motion to adjudicate. The State agrees the trial court's judgment should be modified to correctly reflect the proceedings. The trial court's judgment incorrectly recites that appellant pleaded true to the motion to adjudicate. Thus, the trial court's judgment is incorrect. We sustain appellant's second point of error. We modify the trial court's judgment adjudicating guilt to show appellant pleaded not true to the motion to adjudicate. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, the trial court's judgment is affirmed.