No. 05-10-00588-CR
Opinion Filed March 1, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F09-71588-MI.
Before Justices MURPHY, FILLMORE, and MYERS.
Opinion By Justice MYERS.
Joe A. Hernandez appeals from the adjudication of guilt for burglary of a habitation. In two points of error, appellant contends the judgment is void and the revocation order is insufficient to satisfy due process. We modify the trial court's judgment adjudicating guilt 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 case is well settled.
Background
Appellant waived a jury and pleaded guilty to burglary of a habitation. See Tex. Penal Code Ann. § 30.02(a)(1) (West 2003). Pursuant to a plea agreement, the trial court deferred adjudicating guilt and placed appellant on ten years' community supervision. The State later moved to adjudicate guilt, alleging appellant violated two conditions of his community supervision. Appellant pleaded true to the first allegation and not true to the second allegation in a hearing on the motion. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at fifteen years' imprisonment. Void Judgment
In his first point of error, appellant contends the judgment adjudicating guilt is void because he was denied ten days to prepare for the revocation proceeding in violation of article 1.051(e) of the Texas Code of Criminal Procedure. Appellant asserts he was given at least two days less than the required ten days, and there was no operative waiver. The State responds that appellant freely and voluntarily waived his right to ten days' preparation time. An appointed counsel is entitled to ten days to prepare for a proceeding, but he may waive the preparation time with the consent of the defendant in writing or on the record in open court. Tex. Code Crim. Proc. Ann. Art. 1.051(e) (West Supp. 2010). This ten-day requirement applies to the actual time of preparation, rather than the time from the formal appointment to the proceeding in question. See Ditto v. State, 898 S.W.2d 383, 386 (Tex. App.-San Antonio 1995, no pet.). Here, the record shows counsel was appointed on April 28, 2010 to represent appellant on the motion to adjudicate. The hearing on the State's motion to adjudicate was held on May 7, 2010, at which time appellant signed plea papers that specifically waived the ten-day preparation time. During the hearing, appellant testified he understood the papers he had signed and that counsel had explained the papers and the motion to adjudicate to him. We conclude appellant freely and voluntarily waived his right to the ten-day preparation time. We overrule appellant's first point of error. Due Process
In his second point of error, appellant contends the revocation order is insufficient to satisfy due process because it does not state which allegation was found to be true. Appellant argues the trial court did not orally state or enter findings regarding which condition he was to have violated. The State responds that appellant did not request specific findings regarding the basis for the adjudication of his guilt. 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). Texas courts, however, 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. Here, appellant did not request specific findings. 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 proven. We conclude the judgment adjudicating guilt satisfies minimum due process requirements. We overrule appellant's second point of error. Modify Judgment Adjudicating Guilt
The State requests that we modify the judgment adjudicating guilt to reflect that appellant pleaded true to one violation and not true to one violation. The State also asks us to modify the judgment to show the parties proceeded on the State's amended motion to adjudicate during the hearing. In its amended motion to adjudicate, the State alleged appellant violated two conditions of his community supervision: Condition (S), going within 1000 feet of "720 Skillman," and Condition (T), failing to report. In a hearing on the motion, appellant pleaded not true to going within 1000 feet of "720 Skillman," and true to failing to report. However, the trial court's judgment adjudicating guilt recites that appellant pleaded true to the motion to adjudicate. Thus, the judgment is incorrect. Likewise, it is clear from the record that all of the parties proceeded on the allegations contained in the State's amended motion to adjudicate. The trial court's judgment adjudicating guilt, however, incorrectly recites that 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 adjudicating guilt to show appellant pleaded true to Condition (T) and not true to Condition (S) 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). We further modify the judgment to show appellant violated the terms and conditions of community supervision as set forth in the State's amended motion to adjudicate guilt. Id. As modified, we affirm the trial court's judgment.