No. 05-09-01355-CR
Opinion Filed February 11, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F08-32983-MI.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
Opinion By Justice FILLMORE.
Ujenio Albolaez appeals following the adjudication of his guilt for possession with intent to deliver four grams or more but less than 200 grams of cocaine. In four points of error, Albolaez asserts the trial court abused its discretion by adjudicating guilt and revoking community supervision based on the State's allegations that Albolaez failed to pay fines and court costs, failed to perform 320 hours of community service, and failed to pay probation fees, and the adjudication of guilt and revocation of community supervision violated his rights to due process and due course of law. We modify the trial court's judgment to reflect the trial court found Albolaez violated the conditions of supervision alleged in the State's amended motion to adjudicate guilt and to reflect the trial court originally placed Albolaez on community supervision for ten years. As modified, we affirm the trial court's judgment.
Background
Albolaez waived a jury and pleaded guilty to possession with intent to deliver four grams or more but less than 200 grams of cocaine. On March 13, 2009, the trial court deferred adjudicating guilt, placed Albolaez on ten years' community supervision, and assessed a $2000 fine. On August 12, 2009, the State moved to adjudicate guilt, alleging Albolaez had violated a number of conditions of his community supervision. Specifically, the State alleged Albolaez violated condition (b) by testing positive for cocaine on April 13, 2009, condition (h) by failing to pay court costs and fines of $2665, condition (j) by failing to pay probation fees of $600, condition (k) by failing to pay a Crime Stoppers fee of $10, condition (l) by failing to complete 320 hours of community supervision, condition (n) by failing to pay a urinalysis fee of $10, condition (p) by failing to attend GED classes, and condition (s) by being delinquent $10 in the payment of restitution. On September 16, 2009, the State amended its motion to adjudicate guilt and, in addition to the previously alleged violations, alleged Albolaez violated condition (a) of his community supervision by committing three new offenses during the period of community supervision. On October 14, 2009, the State again amended its motion to adjudicate guilt. The State continued to allege the violations in the original motion, but also alleged Albolaez violated condition (a) of his community supervision by committing four new offenses during the period of community supervision and condition (c) of his community supervision by, on four occasions, failing to avoid persons or places of disreputable or harmful character. At the hearing on the State's motion to adjudicate guilt, the prosecutor stated that "the State wishes to abandon certain allegations in the motion, namely, all allegations labeled A, B and C. With those allegations abandoned, the State is ready to proceed." The trial court responded, "[s]o we're left with H, J, K, L, N, P and S?" The prosecutor responded affirmatively. Albolaez waived the reading of the motion and pleaded not true to the allegations. Rose Little, a probation officer, was the only witness to testify at the hearing. Little testified Albolaez was not current on all fees assessed with respect to his community supervision. Specifically, Little testified Albolaez was delinquent $2665 for court costs, $600 for probation fees, $10 for Crime Stopper fees, $10 for urinalysis fees, and $10 for restitution. According to Little, Albolaez was "required to make regular payments, as agreed, per the conditions of probation every month." Little testified Albolaez informed the probation department that he had a job and was earning $350, but she did not know whether this was a weekly or biweekly amount. Little also testified Albolaez had not performed 300 hours of community service and had not attended GED classes. The trial court "grant[ed] the Motion to Proceed to Adjudication," found Albolaez guilty of the original offense, and sentenced Albolaez to ten years' confinement. In the judgment, the trial court found that "[w]hile on community supervision, [Albolaez] violated the terms and conditions of community supervision as set out in the State's ORIGINAL Motion to Adjudicate Guilt as follows: See attached Motion to Adjudicate Guilt." Albolaez then brought this appeal. Discussion
The decision to proceed to adjudication of guilt is reviewable in the same manner as a revocation of "ordinary" community supervision. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (West Supp. 2010); Duncan v. State, 321 S.W.3d 53, 56 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd). We review a decision to revoke community supervision, and by extension a decision to adjudicate, for an abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Duncan, 321 S.W.3d at 56-57. An order revoking community supervision must be supported by a preponderance of the evidence. Rickels, 202 S.W.3d at 763-64; Duncan, 321 S.W.3d at 57. The evidence meets this standard when the greater weight of the credible evidence creates a reasonable belief that a defendant has violated a condition of his community supervision. Rickels, 202 S.W.3d at 764; Duncan, 321 S.W.3d at 57. In conducting our review, we consider the evidence in the light most favorable to the trial court's ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.-Fort Worth 2007, pet. ref'd). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Battle v. State, 571 S.W.2d 20, 21 (Tex. Crim. App. [Panel Op.] 1978); Lindley v. State, No. 06-09-00200-CR, 2010 WL 5133516, at *2 (Tex. App.-Texarkana Dec. 17, 2010, no pet. h.). The trial court may accept or reject any or all of the witnesses' testimony. Aguilar v. State, 471 S.W.2d 58, 60 (Tex. Crim. App. 1971); Lindley, 2010 WL 5133516, at *2. The violation of a single condition of community supervision is sufficient to support a revocation. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009) ("We have long held that `one sufficient ground for revocation would support the trial court's order revoking' community supervision." (quoting Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979). The trial court's judgment should be affirmed if the appellant does not challenge all of the grounds on which the trial court revoked community supervision. Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.-Houston [14th Dist.] 1999, no pet.) ("Thus, in order to prevail, appellant must successfully challenge all the findings that support the revocation order."); see also Baxter v. State, 936 S.W.2d 469, 472 (Tex. App.-Fort Worth 1996) (per curiam) (affirming revocation when appellant challenged only one of two grounds for revocation found by trial court), pet. dism'd as improvidently granted, 960 S.W.2d 82 (Tex. Crim. App. 1998) (per curiam). In his first three points of error, Albolaez asserts the trial court abused its discretion by adjudicating guilt and revoking his community supervision based on the allegations that he violated condition (h) by failing to pay court costs and fines of $2665, condition (j) by failing to pay probation fees of $600, and condition (l) by failing to complete 320 hours of community service. In its motion, the State alleged Alobolaez violated ten conditions of his community supervision, conditions (a), (b), (c), (h), (j), (k), (l), (n), (p), and (s). Prior to the hearing, the State abandoned the allegations Albolaez violated conditions (a), (b), and (c) and proceeded to trial on the allegations Albolaez violated the remaining seven conditions. At the beginning of the hearing, the trial court stated the remaining allegations were that Albolaez violated conditions (h), (j), (k), (l), (n), (p), and (s). At the conclusion of the hearing, the trial court granted the motion. It found in its judgment that Albolaez "violated the terms and conditions of community supervision as set out in the State's ORIGINAL Motion to Adjudicate Guilt." The trial court's finding, therefore, encompassed all seven of the allegations tried at the hearing on the motion to adjudicate guilt. Albolaez did not challenge the trial court's adjudication of guilt and revocation of probation based on his violation of condition (k) by failing to pay a Crime Stoppers fee of $10, condition (n) by failing to pay a urinalysis fee of $10, condition (p) by failing to attend GED classes, or condition (s) by being delinquent $10 in the payment of restitution. The record contains sufficient evidence to support revocation on any of these unchallenged grounds. Accordingly, because any single unchallenged ground will support revocation, we need not consider whether the trial court erred by finding Albolaez violated conditions (h), (j), and (l) of his community supervision. See Jones, 571 S.W.2d at193-94 ("[S]ince there was sufficient evidence to show that appellant violated condition 15, this contention [that the evidence is insufficient to show appellant violated condition 2] need not be considered."); Reasor v. State, 281 S.W.3d 129, 134 (Tex. App.-San Antonio 2008, pet. ref'd). We overrule Albolaez's first three points of error. In his fourth point of error, Albolaez argues his rights to due process and due course of law were violated when the trial court failed to make specific written findings indicating which conditions of community supervision Albolaez violated and detailing the evidence relied upon and the reasons for revoking community supervision. The minimum requirements of due process that must be observed in community supervision revocation hearings include a written statement by the fact finder as to the evidence relied on and the reasons for revoking community supervision. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Ex parte Carmona, 185 S.W.3d 492, 495 (Tex. Crim. App. 2006). Texas courts, however, require a defendant to make a request for specific findings. King v. State, 649 S.W.2d 42, 46 (Tex. Crim. App. 1983). In the absence of such a request, "[a]n order revoking probation is sufficient, even though it does not recite the findings and conclusions upon which the trial court acted." Id. In this case, Albolaez did not request specific findings. Moreover, the State's motion to adjudicate is included in the record, and the judgment recites the trial court found the allegations in the motion to adjudicate had been proven. See Russell v. State, 685 S.W.2d 413, 418 (Tex. App.-San Antonio, 1985) ("Therefore, we conclude that the finding recited in the court's order that the evidence sustained the violations alleged in the motion to revoke probation satisfies due process requirements), aff'd, 702 S.W.2d 617 (Tex. Crim. App. 1985). We conclude the judgment adjudicating guilt satisfies minimum due process requirements. See King, 649 S.W.2d at 46; Russell, 685 S.W.2d at 418. Citing Ruedas v. State, 586 S.W.2d 520, 523 (Tex. Crim. App. 1979), Albolaez also asserts that his right to due course of law under the Texas Constitution is more protective than his right to due process under the United States Constitution and was violated by the trial court's failure to enter specific written findings. However, the argument that a defendant's right to due course of law provides greater protection than the federal due process clause is waived if not properly raised in the trial court. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) ("We hold that, by failing to distinguish the rights and protections afforded under the Texas due course of law provision from those provided under the Fourteenth Amendment before the trial judge in this context, Pena failed to preserve his complaint that the due course of law provides greater protection for appellate review."). Albolaez failed to argue in the trial court that his right to due course of law was more protective than his right to due process and, therefore, has waived this argument on appeal. Id. We overrule Albolaez's fourth point of error. Albolaez also contends the trial court's judgment erroneously indicated he violated the terms and conditions of community supervision as set out in the State's original motion to adjudicate guilt, rather than the State's amended motion to adjudicate guilt. It is clear from the record that the trial court was proceeding based on the amended motion. The trial court's written judgment incorrectly recites that Albolaez violated the conditions of community supervision "as set out in the State's original motion to adjudicate." The trial court's judgment also incorrectly recites that Albolaez was originally placed on community supervision for a period of six years. This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information before us to do so. 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). We therefore modify the trial court's judgment to show Albolaez violated the conditions of community supervision "(h), (j), (k), (l), (n), (p), and (s) as set out in the State's amended motion to adjudicate guilt" and to reflect Albolaez was placed on community supervision for a period of ten years. As modified, we affirm the trial court's judgment.