No. 05-10-00156-CR
Opinion Filed January 25, 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 DO NOT PUBLISH.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. F07-40490-NI.
Before Justices RICHTER, LANG, and MYERS.
Opinion By Justice MYERS.
Kenneth Wayne Jackson appeals from the adjudication of his guilt for injury to an elderly person. In six points of error, appellant contends the trial court abused its discretion by adjudicating his guilt and revoking his community supervision, the trial court denied him due process and due course of law, and the written judgment erroneously reflects a deadly weapon finding. We affirm the trial court's judgment. 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 injury to an elderly person. The indictment alleged appellant used a deadly weapon, his hand, during the commission of the offense. See Tex. Penal Code Ann. § 22.04(a)(1) (West Supp. 2010). 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 the conditions of his community supervision including (1) failing to report on three occasions, (2) failing to pay costs, fees, and restitution, (3) failing to complete community service hours, as directed, (4) failing to complete substance abuse evaluation, as directed, and (5) failing to complete anger management program, as directed. Appellant pleaded not true to the allegations in a hearing on the motion. The trial court heard testimony from probation officer Harold Martin, who said appellant was placed on probation on June 3, 2008. On July 17, 2009, appellant was convicted of attempted injury to a child and received "time served". He was continued on probation. Martin testified the probation department's records indicate appellant did not report on August 20, 2009, October 27, 2009, and October 30, 2009. When appellant failed to report on August 20th, the probation officer gave him another chance to try to work on the conditions of his community supervision. According to Martin, appellant made "no effort to do anything." Martin testified appellant was delinquent on court costs, fees, and restitution, but appellant's probation officer knew appellant was not working at the time. Appellant did not show up for his substance abuse evaluation appointment, did not attend the anger management program, as ordered, and did not perform any community service hours. Martin acknowledged that a probationer has until the end of the probationary term to complete community service hours required for felony convictions, but said appellant made no effort to do anything. Appellant testified he understood the conditions of his community supervision at the time he was placed on community supervision. Appellant said the only income he and his wife have is her social security disability checks because he has not worked since the date of the underlying offense. Due to his limited income, appellant is unable to pay the costs, fees, and restitution ordered by the trial court. Appellant said the probation department's records are wrong because he did report on August 20th and October 27th. He admitted he failed to report on October 30th, but claimed that failure was due to the probation officer telling him "there was no point in coming in" because a warrant had already been issued for him. Appellant said his substance abuse evaluation was rescheduled for his next reporting date, which would have been after October 30th, and he had his appointment card for the anger management classes ready to turn in on October 30th. Appellant said he did not sign up to perform community service hours yet because he had no transportation and he could not do any heavy lifting. Appellant told the trial court his criminal history included two convictions for driving while intoxicated, three assault convictions, and a burglary of a habitation conviction. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at twenty-five years' imprisonment. Abuse of Discretion
In his first four points of error, appellant contends the trial court abused its discretion in adjudicating his guilt based upon a failure to complete certain conditions, some of which were impossible to perform. Specifically, appellant asserts the State failed to prove he had the ability to pay costs, fees, and restitution, and it was impossible for him to comply with obtaining a substance abuse evaluation, anger management classes, and community service hours. 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). The evidence presented shows appellant failed to report, failed to get a substance abuse evaluation as directed, and failed to complete the anger management program as directed. Although appellant denied that he failed to report on August 20th and October 27th, it was the trial court's role, as the fact finder in this case, to reconcile any conflicts in the evidence and judge the witnesses' credibility. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.) (en banc). 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 and adjudicating his guilt. See Rickels, 202 S.W.3d at 763-64; Sanchez, 603 S.W.2d at 871. We overrule appellant's first four points of error. Due Process
In his fifth point of error, appellant contends the trial court failed to make findings that any of the alleged allegations were found to be true. Appellant asserts there is no evidence the trial court made an informed decision and, thus, appellant was denied due process and due course of law. 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 fifth point of error. Deadly Weapon Finding
In his sixth point of error, appellant contends the judgment adjudicating guilt should be modified to reflect there was no deadly weapon finding. Appellant asserts the trial court expressly declined to make such a finding when it deferred appellant's guilt and placed him on community supervision. The indictment in this case alleged appellant used or exhibited a deadly weapon, his hand, during commission of the offense. Appellant pleaded guilty and judicially confessed to the offense as alleged in the indictment. The record contains appellant's judicial confessions and stipulations of evidence that track the language in the indictment, including the use and exhibition of a deadly weapon. Appellant's judicial confession sufficiently supports the deadly weapon finding contained in the order of deferred adjudication and the judgment. See Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996); see also Alexander v. State, 868 S.W.2d 356, 360 (Tex. App.-Dallas 1993, no pet.). Moreover, when the trial judge adjudicated appellant guilty, he expressly stated he found appellant guilty "as charged in the indictment." We conclude the trial court properly included the deadly weapon finding in the judgment adjudicating guilt. We overrule appellant's sixth point of error. We affirm the trial court's judgment.