Opinion
No. 05-08-00051-CR
Opinion issued February 25, 2009. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-50396-R.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT. Opinion By Justice Francis.
MEMORANDUM OPINION
While on deferred adjudication community supervision for aggravated robbery, Alvin Lee Mathis was indicted on a charge of aggravated sexual assault of a child under fourteen. The State filed a motion to proceed with an adjudication of guilt that alleged multiple violations, including the new charge. After a hearing, the trial court found each violation true, granted the motion, found appellant guilty, and sentenced him to forty years in prison. On appeal, appellant argues the trial court violated his constitutional and statutory rights to a jury trial and due process by hearing the motion to proceed instead of the indictment involving the new offense and abused its discretion in finding that he violated the terms of his community supervision by committing aggravated sexual assault of a child. Additionally, he seeks to reform the judgment to accurately reflect his pleas to the various paragraphs alleged in the motion. We reject appellant's issues with respect to the hearing on the motion, but we agree the judgment should be modified. Therefore, we modify the judgment and affirm as modified. The new offense was set for trial on November 12, 2007. On that day, because appellant was on deferred adjudication community supervision, the trial court decided to first hear the State's motion to proceed with an adjudication of guilt. The motion alleged appellant violated his probation by (1) committing aggravated sexual assault of a child under fourteen years of age, (2) failing to pay the fine and costs, (3) failing to pay his probation fees, (4) violating his curfew on multiple occasions, (5) failing to obtain his GED, and (6) failing to participate in electronic monitoring. During the hearing, the trial court admonished appellant that he was facing five to ninety-nine years or life in prison for aggravated robbery if the State proved any of the allegations contained in the State's motion, even a "technical violation." Appellant said he understood. He then pleaded not true to the allegation of a new offense but pleaded true to the remaining allegations. The trial court heard evidence on the aggravated sexual assault of a child. At the conclusion of the hearing, the trial court found all allegations true and granted the State's motion. In issues one, two, and three, appellant argues the trial court violated his Sixth Amendment and statutory rights to a jury trial and his Fifth Amendment right to due process by proceeding on the revocation motion instead of the indictment on the new offense. He argues the trial court's decision "reduced the burden of proof from beyond a reasonable doubt to a preponderance of the evidence." We disagree. Initially, we note that within his argument, appellant acknowledges that he did not object to the trial court's ruling. Second, appellant recognizes that a trial court does not violate a defendant's rights by allowing the State to proceed on a revocation motion regarding the same allegation in a pending indictment. See Valdez v. State, 508 S.W.2d 842, 843 (Tex.Crim.App. 1973) ("The argument that appellant has not been convicted of a crime upon which to base a revocation of probation has been decided by this court contrary to appellant's contention `in cases too numerous to mention.'"); Farmer v. State, 475 S.W.2d 753, 754 (Tex.Crim.App. 1972) ("[T]his Court has written, in cases too numerous to mention, that there is no error in having a hearing on revocation of probation prior to the trial of some alleged violation.") Nevertheless, he urges this Court to "make an exception" in his case. We decline. Unlike a criminal proceeding, a defendant's guilt or innocence is not at issue during a probation revocation hearing. Lewis v. State, 195 S.W.3d 205, 208 (Tex.App.-San Antonio 2006, no pet.). The question at such a hearing is whether the appellant broke the contract he made with the court when he was granted probation. Id. The revocation hearing allows the trial court to exercise its discretion in revoking or continuing the defendant on probation. Id. A defendant is not entitled to a jury trial on the revocation proceeding. See Valdez, 508 S.W.2d at 843. A plea of true to any one of the alleged violations is sufficient to support the trial court's order of revocation. Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. [Panel Op.] 1979). The State was under no obligation to try appellant on the new indictment rather than proceed on the motion to adjudicate. Appellant previously waived his right to a jury trial when he pleaded guilty to the aggravated robbery charge, and he was not entitled to a jury trial on the revocation proceeding. Contrary to appellant's assertion otherwise, he was not denied a jury trial on the offense of aggravated sexual assault of a child; in fact, there is nothing that precludes appellant from demanding such a trial. Finally, appellant pleaded true to five other allegations, any of which would have supported revocation of his probation. We conclude the trial court's decision to proceed on the State's motion did not violate appellant's constitutional or statutory rights. We overrule the first three issues. In his fourth issue, appellant argues the trial court abused its discretion in finding that he violated terms of his community supervision by committing aggravated sexual assault. Given that a plea of true, standing alone, will support an order of revocation, we need not consider this issue in light of appellant's pleas of true to the five other allegations. See Moses, 590 S.W.2d at 470. In his fifth issue, appellant asserts the judgment incorrectly states that he pleaded "true" to Paragraph 1, which alleged the new offense. The State agrees. We sustain the issue and reform the judgment to reflect that appellant pleaded "not true" to Paragraph 1 and pleaded "true" to Paragraphs (2)-(6) of the motion to proceed with an adjudication of guilt. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). To the extent appellant asserts the trial court did not find he violated the remaining allegations, he is incorrect and we will not amend the judgment to reflect any such change. We affirm the judgment as modified.