Opinion
No. 05-16-00621-CR No. 05-16-00622-CR
12-21-2016
TIMOTHY SHAYNE HARDIN JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas
Trial Court Cause Nos. F14-45111-I & F14-45117-I
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Stoddart
Opinion by Justice Stoddart
Timothy Shayne Hardin Jr. appeals the trial court's judgments adjudicating his guilt for aggravated robbery and retaliation. Hardin entered a plea agreement in each case and was placed on community supervision for five years. The State subsequently filed motions to proceed with adjudications of guilt. Following a hearing, the trial court found appellant guilty and sentenced him to sixteen years' confinement in each case. In a single issue, appellant argues the trial court abused its discretion by revoking his community supervision. We affirm the trial court's judgments.
The State's motion to adjudicate in cause F14-45111-I alleged appellant violated seven conditions of community supervision including condition (u) by failing to attend and complete an intensive outpatient program (IOP). Likewise, in cause F14-45117-I, the State alleged appellant violated five conditions of community supervision, including condition (t) by failing to attend and complete IOP. Appellant pleaded not true to the allegations. The trial court found appellant violated several terms and conditions, including failing to attend and complete IOP, and adjudicated him guilty of the offenses. This appeal followed.
We review a trial court's decision to adjudicate guilt based on the violation of a condition of community supervision for abuse of discretion. Ross v. State, No. 05-15-00351-CR, 2016 WL 929277, at *5 (Tex. App.—Dallas Mar. 11, 2016, no pet.) (mem. op., not designated for publication) (citing Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013)). Adjudication is appropriate when a preponderance of the evidence supports one of the State's allegations that the defendant violated a condition of his community supervision. Id. (citing Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012)). "A preponderance of the evidence means that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation." Id. (quoting Hacker, 389 S.W.3d at 865). When determining whether the trial court abused its discretion in finding a violation of a condition of community supervision, the evidence should be viewed in the light most favorable to the trial court's findings and ruling. Id. (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981)). A single violation of a term of community supervision is sufficient to support the trial court's decision to proceed with an adjudication of guilt. Id. (citing Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012); Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009)).
The evidence shows appellant was incarcerated in Collin County for several months after he was placed on community supervision in Dallas County, and he was unable to complete the requirements of community supervision while incarcerated. When appellant was released by Collin County in April 2015, he received referrals to attend the required classes. Appellant was arrested again on January 10, 2016, and remained incarcerated as of the date of the hearing on the State's motion, March 30, 2016.
Josephine Hadnot, a probation officer, testified appellant had not complied with all conditions of community supervision. At the time of the hearing, appellant was delinquent in paying court costs and fines as well as community supervision fees. Hadnot testified "there's no record" that appellant completed Safe Neighborhood, Thinking for a Change, or anger management classes. Although appellant was admitted to IOP at the Addicare Group of Texas on December 16, 2015, he stopped attending classes one day later without completing the program. Appellant was discharged by Addicare for non-attendance and he did not re-enroll.
Appellant testified he could not afford to attend all required classes simultaneously. His probation officer told him to delay the Safe Neighborhood and anger management classes so that he could focus on IOP. Appellant had an interview at Addicare and attended IOP classes for the week of December 16 until Addicare personnel told him not to attend the following week because of the Christmas holiday. He did not return to Addicare after Christmas because he could not afford the classes.
Viewing the evidence in the light most favorable to the trial court's ruling, we conclude the court did not abuse its discretion by concluding appellant failed to attend IOP, thereby violating condition (u) in cause number F14-45111-I and condition (t) in cause number F14-45117-I. The conditions of supervision required appellant to participate in intensive outpatient substance counseling through a court-approved program and continue making observable deliberate and diligent effort to comply with all directives and instructions provided by said program or its staff until released successfully by the agency or the court. The trial court heard testimony that appellant attended IOP for either one day or one week, but did not complete the required sessions.
On appeal, appellant argues his term of community supervision did not expire until June 8, 2019, and at the time of the revocation hearing he had over three years to attend and complete the assigned tasks that the State alleged as violations. Although the hearing was held before the term of community supervision ended, appellant was required to complete IOP within thirty days from the referral. He did not do so.
The trial court's finding that appellant failed to attend and complete IOP as required by condition (u) in cause number F14-45111-I and condition (t) in cause number F14-45117-I is sufficient to support the revocation of community supervision. See Ross, 2016 WL 929277, at *5. We overrule appellant's sole issue.
At the end of his brief, appellant requests we modify the Order of Deferred Adjudication in each case to reflect that he pleaded true to one enhancement paragraph in each cause number. This Court has the power to modify whatever the trial court could have corrected by a judgment nunc pro tunc if the evidence necessary to correct the judgment appears in the record. Martinez v. State, Nos. 05-12-00209-CR & 05-12-00210-CR, 2013 WL 3389050, at *4 (Tex. App.—Dallas July 3, 2013, no pet.) (mem. op., not designated for publication) (citing Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd); Whitaker v. State, Nos. 05-12-00361-CR & 05-12-00399-CR, 2013 WL 2641485, at *1 (Tex. App.—Dallas June 10, 2013, no pet. h.) (mem. op., not designated for publication)). The trial court's order of deferred adjudication in F14-45111-I states "TRUE" after the "Plea to 2nd Enhancement/Habitual Paragraph" and "Findings on 2nd Enhancement/Habitual Paragraph." However, the record shows the State only alleged one enhancement paragraph. The trial court's order of deferred adjudication in F14-45117-I states "N/A" after "Plea to 1st Enhancement Paragraph" and "Findings on 1st Enhancement Paragraph." However, the record shows the State alleged one enhancement paragraph to which appellant pleaded true and the trial court found to be true. Therefore, we reform the orders of deferred adjudication in each cause number to read: "Plea to 1st Enhancement Paragraph: True," "Findings of 1st Enhancement Paragraph: True," "Plea to 2nd Enhancement Paragraph/Habitual Paragraph: N/A," and "Findings of 2nd Enhancement Paragraph/Habitual Paragraph: N/A."
We reform the orders of deferred adjudication and affirm the trial court's judgments.
/Craig Stoddart/
CRAIG STODDART
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
160621F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F-1445111-I.
Opinion delivered by Justice Stoddart. Justices Francis and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 21st day of December, 2016.
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F-1445117-I.
Opinion delivered by Justice Stoddart. Justices Francis and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 21st day of December, 2016.