Opinion
No. 05-11-00830-CR
03-29-2012
LAMONICA COOK, Appellant v. THE STATE OF TEXAS, Appelle
Affirmed as Modified; Opinion Filed March 29, 2012.
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F09-62220-I
MEMORANDUM OPINION
Before Justices Moseley, Lang-Miers, and Murphy
Opinion By Justice Lang-Miers
LaMonica Cook appeals from the adjudication of her guilt for arson. In two issues, appellant contends the trial court abused its discretion by granting the State's motion to adjudicate, and the written judgment should be modified to show the correct statute for the offense. We modify the trial court's judgment and affirm as modified. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the cases is well settled.
Appellant waived a jury and pleaded guilty to arson of a habitation. See Tex. Penal Code Ann. § 28.02(a)(2) (West 2011). Pursuant to a plea agreement, the trial court deferred adjudicating guilt and placed appellant on seven years' community supervision. The State later moved to adjudicate guilt, alleging appellant violated a no-contact condition of her community supervision when she sent a letter to Demarcus Flentroy, the complaining witness in the underlying arson. Appellant pleaded not true to the allegation. Following a hearing, the trial court found the allegation true, adjudicated appellant guilty, and sentenced her to twenty years' imprisonment.
During the hearing on the motion to adjudicate, the State stipulated that the no-contact condition recited in the conditions of community supervision spelled the recipient's surname as "Fentroy," but the correct spelling of the surname is Flentroy. The trial court admitted the envelope and letter written by appellant into evidence, as well as photographs of appellant and her children contained inside the envelope.
In her first issue, appellant contends the trial court abused its discretion by granting the State's motion to adjudicate because there was no evidence she violated a condition of community supervision by contacting Flentroy. Appellant asserts because the State did not call any witnesses and presented no evidence that Flentroy received the letter or even knew about the letter, the evidence is insufficient to support a finding that she violated her community supervision. The State responds the trial court did not abuse its discretion when it found the evidence sufficient that appellant violated a condition of her community supervision by contacting a person by mail.
Appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). An order revoking community supervision must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence that would create a reasonable belief that the defendant has violated a condition of probation. Id. at 763-64. A finding of a single violation of community supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980). Thus, in order to prevail, appellant must successfully challenge all the findings that support the revocation order. See Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978).
During a hearing on the motion to adjudicate, the State offered into evidence an envelope addressed to Flentroy at the Dallas County jail, a letter signed by appellant, and photographs of appellant and her children. When a letter or other mail matter is properly addressed and mailed with postage prepaid, there is a rebuttable presumption of fact that it was received by the addressee as soon as it could have been transmitted to him in the ordinary course of the mails. See Hardman v. State, 614 S.W.2d 123, 128 (Tex. Crim. App. [Panel Op.] 1981). There is no evidence Flentroy did not receive the letter.
Moreover, appellant testified she understood a condition of her community supervision was that she have no contact by mail, phone, or in person with Flentroy. Appellant testified she sent a letter to Flentroy, addressed to him at the Dallas County jail, to explain she was not the reason he was in jail, and to send him pictures of their children. Thus, the violation occurred when appellant sent the letter regardless of whether Flentroy actually received it. Appellant testified she should not have sent the letter, and asked the trial court to continue her community supervision.
We conclude the evidence is sufficient to support the trial court's findings. The trial court did not abuse its discretion in revoking appellant's community supervision and adjudicating her guilt. See Rickels, 202 S.W.3d at 763-64; Sanchez, 603 S.W.2d at 871. We overrule appellant's first issue.
In her second issue, appellant asks this Court to modify the written judgment to show the correct name and statute for the offense. The State responds that the judgment should be modified as requested by appellant.
Section 28.02 of the Texas Penal Code defines the offense of arson of a habitation. See Tex. Penal Code Ann. § 28.02(a)(2). The trial court's written judgment recites the statute for the offense as "22.02 Penal Code," which is the statute for the offense of aggravated assault. Thus, the judgment is incorrect. Additionally, in the section for the name of the offense, the written judgment recites "Arson Habitual " rather than arson of a habitation. We sustain appellant's second issue. We modify the judgment to show the name of the offense is "arson-habitation," and the statute for the offense is "28.02 Penal Code." 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, we affirm the trial court's judgment.
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110830F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
LAMONICA COOK, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00830-CR
Appeal from the Criminal District Court No. 2 of Dallas County, Texas. (Tr.Ct.No. F09- 62220-I).
Opinion delivered by Justice Lang-Miers, Justices Moseley and Murphy participating.
Based on the Court's opinion of this date, the trial court's judgment adjudicating guilt is MODIFIED as follows:
The section entitled "Offense For Which Defendant Convicted" is modified to show "Arson Habitation."
The section entitled "Statute For Offense" is modified to show "28.02 Penal Code."
As modified, we AFFIRM the trial court's judgment adjudicating guilt.
Judgment entered March 29, 2012.
ELIZABETH LANG-MIERS
JUSTICE