No. 05-08-00425-CR.
Opinion issued March 4, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F04-53091-TI.
Before Justices RICHTER, LANG, and MURPHY.
MARTIN RICHTER, Justice.
Billy Ray Haggerty waived a jury and pleaded guilty to possession with intent to deliver cocaine in an amount of four grams or more, but less than 200 grams. Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on six years' community supervision, and assessed a $2500 fine. The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision. In a hearing on the motion, the trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at five years' imprisonment. In three points of error, appellant contends the trial court's judgment violates code of criminal procedure article 42.01 and due process, and the trial court abused its discretion in revoking his community supervision. We modify and affirm the trial court's judgment.
Due Process
In his first and second points of error, appellant contends the trial court's written judgment violates article 42.01 and failed to satisfy the minimum requirements of due process because it does not set out the reasons for revoking his community supervision by specifying which allegations it found had been proven true. The State responds appellant did not request that specific findings be included in the order revoking community supervision, and the trial court is not required to make specific findings. Article 42.01 of the Texas Code of Criminal Procedure sets out the information that shall be contained in a trial court's written judgment. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1 (Vernon 2006). The minimum requirements of due process that must be observed in probation revocation hearings include a written statement by the fact finder as to the evidence relied on and the reasons for revoking probation. See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). However, Texas courts require a defendant to make a request for specific findings. See King v. State, 649 S.W.2d 42, 46 (Tex.Crim.App. 1983). In the absence of such a request, the trial court's failure to make specific findings in the order revoking probation is not reversible error. Id. Appellant neither raised these issues in his motion for new trial nor requested findings or conclusions. Moreover, the 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 proved. We conclude the judgment adjudicating guilt satisfies article 42.01 of the Texas Code of Criminal Procedure and minimum due process requirements. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1(8). We overrule appellant's first and second points of error. Abuse of Discretion
In his third point of error, appellant contends the trial court abused its discretion by granting the State's motion and revoking his community supervision because the reporting requirement was unduly vague, and he had paid his previously delinquent fees at the time of the hearing. The State responds that the trial court did not abuse its discretion in granting the motion and adjudicating appellant's guilt. Appellate review of an order revoking probation and adjudicating guilt 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). In determining questions concerning sufficiency of the evidence, the burden of proof is by a preponderance of the evidence. Id. An order revoking probation must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence which would create a reasonable belief that a defendant has violated a condition of his probation. See id at 763-64. In its amended motion to adjudicate, the State alleged appellant violated the terms of his community supervision by (1) committing a new offense: assault-family violence, (2) failing to report, and (3) failing to pay probation fees. The State abandoned the allegation that appellant committed a new offense. During the adjudication hearing, appellant pleaded true to failing to report to the supervision officer and failing to pay probation fees. A plea of true, standing alone, supports revocation of community supervision. See Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. [Panel Op.] 1979). Appellant's signed judicial confession and stipulation of evidence was admitted into evidence. Moreover, appellant testified he knew he was to report to the probation department, but he had to take his pregnant girlfriend to the doctor several times, after which he was too afraid to report. Appellant also testified he did not pay his fees on some occasions, but was "caught up" on the fees at the time of the hearing. Appellant's admissions he failed to report and to pay probation fees, standing alone, are sufficient to support the trial court's judgment adjudicating guilt. See Watts v. State, 645 S.W.2d 461, 463 (Tex.Crim.App. 1983); Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.-San Antonio 2006, no pet.). We conclude the trial court did not abuse its discretion in granting the State's motion and revoking appellant's community supervision. See Rickels, 202 S.W.3d at 763-64. We overrule appellant's third point of error. Modify Judgment
It is clear from the record that all of the parties proceeded on the State's amended motion to adjudicate guilt during the revocation hearing. Appellant testified about all of the allegations contained in the amended motion to adjudicate. The trial court found appellant had violated the terms of his community supervision as outlined in the amended motion to adjudicate. However, the trial court's written judgment incorrectly recites appellant violated the conditions of community supervision "as set out in the State's original motion to adjudicate." We modify the trial court's judgment to show appellant violated the terms and conditions of community supervision "as set out in the State's amended motion to adjudicate guilt." 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). The record also shows that after appellant gave his testimony, the prosecutor stated a plea agreement offer of five years' imprisonment was still open to appellant although appellant had previously rejected that offer. Appellant accepted the State's offer, and the trial court followed the plea agreement. However, the written judgment incorrectly recites there was an "open" plea. We modify the trial court's judgment to show appellant entered into a plea agreement for punishment at five years' imprisonment. As modified, we affirm the trial court's judgment.