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Claybon v. State

Court of Appeals of Texas, Fifth District, Dallas
Jun 30, 2008
No. 05-07-01320-CR (Tex. App. Jun. 30, 2008)

Opinion

No. 05-07-01320-CR

Opinion Filed June 30, 2008. DO NOT PUBLISH Tex. R. App. P. 47

On Appeal from the Criminal District Court No. 7 Dallas County, Texas, Trial Court Cause No. F06-66227-TY.

Before Justices MOSELEY, FRANCIS, and LANG.


OPINION


Norman Deshaun Claybon appeals following the adjudication of his guilt for burglary of a habitation. In two points, appellant contends the evidence is factually insufficient to prove he committed a new burglary and the judgment does not accurately reflect the conditions appellant was found to have violated. We affirm the trial court's judgment. In its motion to adjudicate, the State alleged appellant violated five conditions of community supervision, including a new burglary offense and four technical violations. During the hearing, Kenneth Peterson testified he was at a birthday party for his daughter on May 6, 2007 when he received a call from one of his neighbors that his house was being burglarized. By the time Peterson returned home, the police were already there. When he went inside the house, there were several suitcases filled with his property set up throughout the house. All of the rooms had been ransacked. The burglars had entered through a boarded up window in the attached garage. Property, including watches and cell phones, was missing from Peterson's house. One of Peterson's neighbors, Holmer King, testified he saw appellant and three other men inside Peterson's house at about 7:30 a.m. on May 6, 2007. King called 911 and gave a description of the men. King saw appellant and the others run out of Peterson's house and down the street, and King followed them in his car. Appellant and the three men were apprehended by police officers a short time later. Two of the men had some of Peterson's property on them when they were arrested. Appellant did not have any of the property. King identified appellant and the three other men at the scene as the individuals he saw coming out of Peterson's house. Officer Claude Hall testified appellant and three other men matched the description of the suspects he was given by the police dispatcher. All four men were arrested after being identified by Holmer King. Robert Jackson testified he had pleaded guilty to committing the burglary of Peterson's house because he had some of Peterson's property on his person when he was arrested, but Jackson insisted he never went inside Peterson's house. Jackson and appellant went to the house because appellant's younger brother, Robben, called them and asked for a ride home. Robben and Jimmy Strickland were inside Peterson's house when appellant and Jackson arrived. Appellant left his car at a nearby apartment complex. All four of them walked from Peterson's house to their car at the complex, but were stopped by police. Jackson testified appellant did not take part in the burglary or receive any of the stolen property. Jackson also testified he previously told prosecutors he went to the back of Peterson's house and went inside, and that he lied to the trial judge when he pleaded guilty to committing this offense because he never went inside Peterson's house. Appellant testified Jimmy Strickland called him and asked for a ride. Jimmy and appellant's younger brother, Robben, were together and Strickland told appellant where they were. En route to that location, appellant ran out of gas and had to leave his car at an apartment complex. Appellant and Jackson walked a short distance to the house where Jimmy and Robben were located. Robben was sitting on the curb when appellant arrived. Jimmy walked from around the house and asked appellant if he and Jackson wanted to go back inside the house. Appellant told Jimmy he did not want anything to do with it. Neither appellant, nor Jackson, went inside the house. All four of them began walking to appellant's car, but were stopped by the police. Appellant did not have any property that belonged to Peterson on his person. Terry Garza, a Dallas County probation officer, testified that appellant was placed on deferred adjudication probation on March 23, 2007, and tested positive for marijuana in April of 2007. Additionally, appellant had not paid his fees for urinalysis, probation or Crime stoppers. 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 his first point, appellant argues the evidence is factually insufficient to prove appellant committed the burglary on which the State premised the adjudication of guilt because the testimony of the sole witness Holmer King was uncorroborated and because both appellant and one of the admitted perpetrators of the new burglary offense testified appellant did not enter the home and took no property. The State responds the trial court did not abuse its discretion in adjudicating appellant's guilt. There was conflicting evidence presented during the hearing. As the fact finder in this case, it was the trial judge's role to reconcile conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). The fact finder may choose to believe or disbelieve all or any part of any witness's testimony. See McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). The trial court in this case found the State proved appellant violated condition (a) of his probation by committing the new burglary offense. The court could properly base its decision on the testimony of Holmer King who saw appellant inside the Peterson house. Because 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 decide against appellant on his first point. In his second point, appellant argues the judgment should be modified to show the specific conditions appellant was found to have violated because the trial court found he violated condition "M" when no such condition was contained in the motion to adjudicate. The State agrees the judgment adjudicating guilt should be modified to show the conditions the trial court found appellant had violated. In its motion to adjudicate, the State alleged appellant violated conditions (a), (b), (j), (n) and (o). At the conclusion of the State's presentation of evidence, the trial court found the State "met its burden on conditions A, J, N and O." The defense then put on evidence and the trial court found appellant violated conditions "A, J, M and O in the community supervisions list." The docket sheet signed by the court reflects violations of conditions (a), (j), (n) and (o). The judgment recites that the court found that appellant violated his probation as alleged in the attached motion to adjudicate; no motion was attached. The State's motion to adjudicate does not allege a violation of condition "M." It appears the trial court's reference to a violation of condition "M" was a mistake. We modify the trial court's judgment adjudicating guilt to show the trial court found appellant violated conditions (a), (j), (n), and (o) as set out in the State's 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.

Because the adjudication hearing was after June 15, 2007, we have jurisdiction to address the complaint. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2007). Appellate review of the decision to adjudicate guilt is conducted in the same manner as the revocation of regular probation. Accordingly, we utilize the same case law in conducting our review.


Summaries of

Claybon v. State

Court of Appeals of Texas, Fifth District, Dallas
Jun 30, 2008
No. 05-07-01320-CR (Tex. App. Jun. 30, 2008)
Case details for

Claybon v. State

Case Details

Full title:NORMAN DESHAUN CLAYBON, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jun 30, 2008

Citations

No. 05-07-01320-CR (Tex. App. Jun. 30, 2008)