Opinion
No. 14-04-01003-CR
Memorandum Opinion filed March 14, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 23rd District Court, Brazoria County, Texas, Trial Court Cause No. 34,623. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and ANDERSON.
MEMORANDUM OPINION
Appellant Jesse Chlamon pled guilty to intoxication manslaughter, a second-degree felony. He was sentenced to ten years' imprisonment, but under a plea agreement he was later released from prison and given shock probation. Subsequently, the trial court found that appellant had violated conditions of his probation, revoked his probation, and again sentenced him to ten years' imprisonment. In four issues, appellant challenges the trial judge's authority to preside over his revocation hearing, raises two evidentiary challenges, and complains that the trial court abused its discretion in revoking his probation. We affirm. In September 1997, appellant struck and killed a bicyclist while driving intoxicated. Pursuant to a plea agreement, appellant pled guilty to intoxication manslaughter in December 1998. Presiding Judge J. Ray Gayle, III sentenced appellant to ten years' imprisonment but suspended that sentence in favor of ten years' shock probation. Five years later, on the evening of July 28, 2002, police stopped appellant for speeding. The officer at the scene later testified that appellant appeared to be intoxicated, admitted he had been drinking, and failed several sobriety tests. The officer also said the car appellant was driving had no vehicle ignition interlock device, a requirement of his probation. Appellant was arrested and subsequently refused to take a breathalyzer test at the police station. According to appellant's probation officer, appellant later admitted he was drinking the night of his arrest. On November 26, 2002, the State filed a motion to revoke appellant's probation, alleging that he committed the following probation violations: (1) driving while intoxicated, (2) failing to refrain from using alcohol, (3) operating a vehicle without an ignition interlock device, and (4) failing to submit to a breathalyzer test. Judge Ogden Bass, a retired visiting judge, presided over the revocation hearing. Appellant pled "true" to count two and "not true" to the remaining counts. Although police videotaped appellant's July 28, 2002 stop, they could not locate the videotape for the hearing. After hearing testimony, Judge Bass found all the State's allegations to be true, revoked appellant's probation, and sentenced him to ten years' imprisonment. In his first issue, appellant argues that the same judge who placed him on probation, not a visiting judge, should also be required to preside over his revocation hearing. However, an appellant must object during the revocation hearing in order to preserve error for appellate review. See Stephenson v. State, 500 S.W.2d 855, 857 (Tex.Crim.App. 1973) (holding that appellant must raise objection challenging propriety of transfer order at revocation hearing). Because appellant failed to object when Judge Bass presided over his revocation hearing, he cannot now raise this issue for the first time on appeal. Moreover, even if appellant had preserved error, we disagree with his argument that the judge granting probation should also be required to preside over the revocation hearing. Article 42.12 of the Code of Criminal Procedure, which appellant cites, establishes guidelines for community supervision. The Code provides that "only the judge who originally sentenced the defendant may suspend execution thereof and place the defendant under [shock probation]." TEX. CODE CRIM. PROC. ANN. art. 42.12 § 10(a) (Vernon Supp. 2005) (emphasis added); see also id. § 6(a) (authorizing trial courts to use shock probation). It further provides that "[o]nly the court in which the defendant was tried may grant community supervision, impose conditions, revoke the community supervision, or discharge the defendant, unless the judge has transferred jurisdiction of the case to another court with the latter's consent." Id. (emphasis added). Although appellant argues that the judge granting probation, who is familiar with the probationer, is better suited than another judge in the same court to preside over the probationer's revocation hearing, neither article 42.12 nor existing case law establishes such a requirement. See id. § 6(a), 10(a); Jones v. State, 700 S.W.2d 31, 32 (Tex.App.-Houston [1st Dist.] 1985, no pet.) (holding that a retired visiting judge could preside over revocation hearing regardless of whether he originally placed the appellant on probation). Appellant's probation was granted by the judge who sentenced him and revoked by a visiting judge in the same court. Thus, it was in compliance with article 42.12. We overrule appellant's first issue. In his second issue, appellant argues that the trial court should have prohibited the State from offering evidence that he was driving while intoxicated because the State failed to produce the videotape of the traffic stop. However, the applicable statute provides that failure to produce a videotape is itself admissible as evidence, not that such failure renders evidence of intoxication inadmissible. See 1983 Tex. Gen. Laws, ch. 303, § 24, at 1605; see also State v. Lyons, 812 S.W.2d 336, 340 (Tex.Crim.App. 1991). Moreover, appellant concedes there is no evidence of bad faith by the police in their failure to locate the videotape. He nonetheless argues that DWI allegations unaccompanied by videotapes should automatically be excluded from revocation hearings to prevent the State from targeting probationers. Although appellant raises a potentially valid concern, the proper resolution of such a policy issue is through the legislature. We overrule appellant's second issue. In his third issue, appellant contends the evidence is insufficient because, although he pled true to paragraph two of the State's allegation, he also presented evidence contradicting that plea. Appellant's argument fails for two reasons. First, a court is not required to revoke a plea of true simply because the probationer later raises defensive issues. See Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979). Once a plea of true is entered, the sufficiency of the evidence may not be challenged. Rincon v. State, 615 S.W.2d 746, 747 (Tex.Crim.App. 1981); Moore v. State, 11 S.W.3d 495, 498 n. 1 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Accordingly, appellant's plea of true alone is sufficient to support revocation of his probation. See Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979). Second, even if appellant could challenge the sufficiency of the evidence, the evidence supports a finding that he was drinking the night he was stopped. The officer who stopped appellant and appellant's probation officer both testified that appellant admitted he was drinking that evening. Although appellant denied these admissions, the trial court could reasonably have found the testimony of the officers more compelling than his denial. See State v. Ross, 32 S.W.3d 853, 854 (Tex.Crim.App. 2000). Thus, we overrule appellant's third issue. In his fourth issue, appellant alleges that the trial court abused its discretion in revoking rather than modifying or continuing his probation. Appellant notes that he is gainfully employed as a mechanic without a record of tardiness, absenteeism, or intoxication. He also points out that he has no other probation violations and has saved money to pay restitution to the victim's family. We review the trial court's decision to revoke probation for an abuse of discretion. Flournoy v. State, 589 S.W.2d 705, 708 (Tex.Crim.App. 1979). Here, the evidence shows that, in violation of his probation agreement, appellant failed to abstain from alcohol consumption, drove a vehicle without an interlock device and while intoxicated, and refused to take a breathalyzer test. These facts support the trial court's decision to revoke appellant's probation notwithstanding his otherwise compliant behavior. Thus, the trial court did not abuse its discretion in revoking appellant's probation. Accordingly, we overrule appellant's fourth issue. We affirm the trial court's judgment.
Appellant points out that probationers might use videotapes to impeach officers who testify about probationers' performance on sobriety tests and the environmental conditions surrounding the tests. The failure to produce a videotape is admissible at trial. See Tex. Gen. Laws, ch. 303, § 24, at 1605. Appellant notes this evidence is more damaging at trial, where the State's burden of proof is beyond a reasonable doubt, than at revocation hearings, where the burden of proof is by a preponderance of the evidence. Consequently, appellant suggests the State may target probationers in DWI cases by failing to produce videotapes and then requesting revocation hearings even though the evidence is too weak to proceed to trial.
Appellant claims that he drank only tea and water the night he was arrested for DWI and that the officer who stopped him mistakenly thought he was referring to alcohol when he said he had been drinking. Appellant also contends that he did not tell his probation officer he had been drinking and notes that she did not specify the date on which she and appellant discussed the DWI arrest at issue.