No. 05-05-00590-CR
Opinion Filed January 11, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F03-23383-RL. Affirmed as Modified.
Before Justices O'NEILL, FITZGERALD, and LANG.
Opinion By Justice LANG.
Randy Glynn Jones appeals the trial court's judgment revoking his community supervision. Jones raises two issues on appeal: (1) the trial court erred when it revoked his probation because the State's March 23, 2004 motion to revoke was defective and had been withdrawn; and (2) he was not granted all of the back-time credit he was entitled to receive. We conclude the trial court erroneously stated Jones's community supervision was revoked based on the State's March 23, 2004 motion to revoke. The motion the trial court heard and granted was dated February 22, 2005, and the trial court's judgment is modified to accurately set out the date of the motion heard and granted. Also, we conclude Jones is entitled to additional back-time credit. Jones's first issue is decided against him and the second issue is decided in his favor. The trial court's judgment revoking community supervision is affirmed, as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
At 12:30 a.m., Linda Harrel, the complainant, heard her doorbell ring followed by some loud knocking. She opened the door and Jones pushed his way into her home. Harrel screamed for her son who took her out of the house while her daughter called 9-1-1. Jones went into Harrel's kitchen and tried to make some hot dogs. The police arrived and arrested Jones. Jones waived a jury trial and pleaded guilty to burglary of a habitation. The trial court assessed Jones's punishment at ten years of confinement and a fine of $1,500. Subsequently, the trial court placed Jones on shock probation for 10 years with the condition that he remain in the substance abuse felony punishment facility (SAFPF) and participate in a drug or alcohol treatment plan. On March 23, 2004, the State moved to revoke Jones's community supervision and, after a hearing, the trial court issued an order modifying his conditions of probation. A second motion to revoke was filed on July 8, 2004, but withdrawn. Then, a third motion to revoke was filed on February 22, 2005, and, after a hearing, the trial court revoked his community supervision and assessed Jones's punishment at five years of confinement. Jones appeals the trial court's judgment revoking his community supervision. II. MOTION TO REVOKE
In his first issue, Jones argues the trial court erred when it revoked his probation based on the State's March 23, 2004 motion to revoke. First, Jones claims the State's March 23, 2004 motion to revoke is defective because it alleges violations that occurred after the date the motion was filed. Second, Jones claims the trial court could not have revoked his community supervision based on the State's March 23, 2004 motion to revoke because the State withdrew that motion. The State responds that: (1) its March 23, 2004 motion to revoke is not defective and the date is a typographical error; (2) Jones failed to preserve for appellate review the issue of whether the trial court revoked his community supervision based on a withdrawn motion; and (4) the March 23, 2005 motion to revoke was not withdrawn. A. Factual and Procedural Context
The record shows that on March 23, 2004, the State filed its first motion to revoke Jones's probation alleging he violated four conditions of his probation: (1) he did not pay the required probation fee; (2) he did not pay the urinalysis fees; (3) he did not pay restitution as directed; and (4) he did not participate in the SAFPF program as directed and was discharged for refusing to participate. On July 1, 2004, the trial court held a hearing on the State's March 23, 2004 motion to revoke. At the hearing, there was evidence that the treatment facility took Jones off of his medication for bi-polar disorder, high blood pressure, and to prevent his blacking out from a prior head injury. As a result of being taken off of his medication, he became disruptive and was discharged from the treatment program. When Jones returned to the main unit, the doctor put him back on his medication. The trial court ordered Jones to be placed back in the treatment facility including an additional condition of probation and that he be allowed to stay on his medication while in the treatment program. On July 29, 2004, the trial court signed the order modifying the conditions of Jones's community supervision. On July 8, 2004, the State filed its second motion to revoke Jones's probation alleging he violated the additional condition of probation ordered by the trial court in the order modifying the conditions of probation by refusing to enter the SAFPF program as directed. On July 29, 2004, the State withdrew its July 8, 2004 motion to revoke. On February 22, 2005, the State filed its third motion to revoke Jones's probation alleging he failed to comply with the rules and regulations of the SAFPF program and was discharged from the program when he failed to participate in a disciplinary hearing. On March 25, 2005, the trial court held a hearing on the State's February 22, 2005 motion to revoke and Jones pleaded true to the allegations. During the hearing, there was evidence that SAFPF ignored the trial court's order and again took Jones off of his medications when he entered the program. As a result, Jones did not ask the trial court to return him to SAFPF, but requested that he be released on probation and obtain outside treatment. There was no discussion by the parties or the trial court regarding the allegations in the State's March 23, 2004 motion to revoke based on his failure to pay the probation and urinalysis fees or restitution. The trial court revoked Jones's community supervision and set his punishment at five years of confinement. The judgment revoking Jones's community supervision states it is based on the State's "MARCH 23, 2004 MOTION TO REVOKE SUPERVISION." However, it also states, "SEE ATTACHED MOTION TO REVOKE." Attached to the judgment revoking community supervision is the State's February 22, 2005 motion to revoke. B. Analysis and Conclusion
Based on the record before us and contrary to the parties' contentions, the trial court's judgment revoking community supervision is clearly based on the State's February 22, 2005 motion to revoke. The allegations in the State's February 22, 2005 motion to revoke are consistent with the matters addressed during the hearing and the motion is attached to the judgment. Further, the trial court previously ruled on the State's March 23, 2005 motion to revoke, which culminated in the trial court's order modifying the conditions of Jones's community supervision. We have the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information before us to do so. 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). Accordingly, the "AS SET OUT IN STATES" portion of the trial court's judgment revoking community supervision is modified to delete "MARCH 23, 2004 MOTION TO REVOKE" and inserted in its place is "FEBRUARY 22, 2005 MOTION TO REVOKE." Because we have concluded the trial court's judgment revoking community supervision is based on the State's February 22, 2005 motion to revoke and Jones has not appealed the trial court's order modifying the conditions of his community supervision based on the State's March 23, 2004 motion, we need not address Jones's first issue claiming the trial court erred when it revoked his community supervision based on the State's March 23, 2004 motion to revoke. III. CALCULATION OF BACK-TIME CREDIT
In his second issue, Jones argues the trial court's judgment revoking community supervision does not give him all of the back-time credit he is entitled to receive. The State acknowledges Jones may be entitled to additional back-time credit. The trial court's judgment credits Jones for the following time spent in incarceration: (1) January 10, 2003 through May 9, 2003; (2) August 20, 2003 through December 30, 2003; (3) May 25, 2004 through December 9, 2004; and (4) February 24, 2005 through March 25, 2005. The State filed a motion to abate this appeal because the record was unclear regarding the back-time credit Jones was entitled to receive. The State's motion was granted and this appeal was abated. After a hearing, the trial court recommended that Jones receive the following additional back-time credit: (1) January 11, 2003, through December 30, 2003; and (2) March 12, 2004, through March 25, 2005. Accordingly, we conclude Jones is entitled to additional back time credit. The "TIME CREDITED" portion of the trial court's judgment revoking community supervision is modified to read: "01/10/03-12/30/03; 05/12/04-03/25/05." See Tex.R.App.P. 43.2(b); Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d at 529-30. Jones's second issue is decided in his favor. IV. CONCLUSION
The trial court's judgment revoking community supervision is modified to reflect that it was based on the State's February 22, 2005 motion to revoke and to reflect the additional back-time credit to which Jones is entitled to receive. Accordingly, the trial court's judgment is affirmed, as modified.