Nos. 05-07-01464-CR, 05-07-01465-CR, 05-07-01466-CR
Opinion Filed October 15, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F06-38773-YI, F06-38774-YI, F07-39960-TI.
Before Chief Justice THOMAS and Justices WRIGHT and FRANCIS.
LINDA THOMAS, CHIEF JUSTICE.
Phillip Rudell Mitchell, Jr. appeals following the adjudication of his guilt for sexual assault of a child and for compelling prostitution and his conviction for failure to register as a sex offender. In five points of error, appellant contends the trial court abused its discretion by not specifying which allegation it found he violated, the State failed to establish that he did not pay probation fees, the evidence is legally and factually insufficient to support his conviction, and the judgment in one case should be modified. We affirm the trial court's judgments in the first two cases and affirm as modified in the third case.
Cause Nos. 05-07-01464-CR and 05-07-01465-CR
Appellant waived a jury and pleaded guilty to sexual assault of a child and compelling prostitution. See Tex. Penal Code Ann. § 22.011(a)(2), 43.05(a)(2) (Vernon 2003 Supp. 2008). Pursuant to plea agreements, the trial court deferred adjudicating guilt, placed appellant on community supervision for seven years, and assessed a $750 fine in each case. The State later moved to adjudicate guilt, alleging appellant violated the conditions of his community supervision. At a hearing, appellant pleaded true to the allegations in the motions. The trial court granted the motions, adjudicated appellant guilty, and assessed punishment at ten years' imprisonment. In his first point of error, appellant argues the trial court abused its discretion by not specifying which allegation it found he violated because the motions to adjudicate, which the trial court granted, were not attached to the court's judgments. In his second point of error, appellant argues the State failed to prove he did not pay probation fees. The State responds the record adequately shows the trial court found the allegations in the motions to adjudicate true, and appellant waived any challenge to the sufficiency of the evidence because he pleaded true to allegations in the motions to adjudicate. Appellate review of a probation revocation 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). We examine the evidence in the light most favorable to the trial court's findings. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984). An order revoking probation must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence which would create a reasonable belief that a defendant has violated a condition of his probation. See Rickels, 202 S.W.3d at 763-64. In a revocation proceeding, the trial judge is the sole trier of the facts, and determines the credibility of the witnesses and the weight to be given to the testimony. See Lee v. State, 952 S.W.2d 894, 897 (Tex.App.-Dallas 1997, no pet.). 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. 1980); Leach v. State, 170 S.W.3d 669, 672 (Tex.App.-Fort Worth 2005, pet. ref'd.). 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); Harris v. State, 160 S.W.3d 621, 626 (Tex.App.-Waco 2005, no pet.). In its motions to adjudicate, the State alleged appellant violated several terms of community supervision, including failing to report, failing to notify the probation department of a change in his residence or employment, failing to pay fees, and committing a new offense by failing to register as a sex offender. During a hearing on the motions, appellant said he understood the conditions of his community supervision, and understood the allegations in the State's motions. When appellant got out of jail, he could not live with an uncle because the uncle was also on probation. After staying at a hotel for one night, appellant was homeless until he found a job. Appellant admitted he did not report, allow a probation officer to visit his home, or register as a sex offender because he had no residence to register. He failed to do the drug and alcohol evaluation as ordered because he was not able to "do my probation," and failed to pay the probation fees because he was not working. After being on probation for one month, appellant obtained employment with a wrecker company. Appellant said he was pleading true to the allegations in the motions because they were true, but he wanted the judge to continue his probation and allow him to live with his mother in West Virginia. Appellant's signed plea of true and stipulation of evidence was admitted into evidence. The State's motions to adjudicate are contained in the clerk's record in these cases. The trial court's written judgments recite appellant violated the terms of community supervision stated in the motions to adjudicate. Moreover, a plea of true, standing alone, supports revocation of community supervision. See Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. [Panel Op.] 1979). Appellant's admission that he failed to report or failed to register as a sex offender is sufficient to support the trial court's judgment revoking community supervision. See Watts v. State, 645 S.W.2d 461, 463 (Tex.Crim.App. 1983); Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.-San Antonio 2006, no pet.). We conclude the trial court did not abuse its discretion in revoking appellant's community supervision. See Rickels, 202 S.W.3d at 763-64. We overrule appellant's first and second points of error. Cause No. 05-07-01466-CR
Appellant waived a jury and pleaded guilty to failure to register as a sex offender. The trial court assessed punishment at ten years' imprisonment. In his third and fourth points of error, appellant argues the evidence is legally and factually insufficient to support the conviction. The State responds that the evidence is sufficient. Appellant testified he did not register as a sex offender because he was homeless and did not have a residence. Appellant's signed judicial confessional and stipulation of evidence was admitted. A judicial confession admitted into evidence and contained in the clerk's record is sufficient to prove appellant's guilt. See Pitts v. State, 916 S.W.2d 507, 510 (Tex.Crim.App. 1996). We overrule appellant's third and fourth points of error. In his fifth point of error, appellant contends the trial court's judgment should be modified to reflect the correct statute for the offense. The State concedes the judgment should be modified to include the citation to the correct statute under which appellant was convicted. Appellant was convicted of failure to register as a sex offender under article 62.102 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 62.102(a) (Vernon 2006). The trial court's judgment, however, recites appellant was convicted under "section 62.10 Penal Code." Thus, the trial court's judgment is incorrect. We sustain appellant's fifth point of error. We modify the trial court's judgment to show the statute for the offense is "62.102(a) Texas Code of Criminal Procedure." 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.). Conclusion
In cause nos. 05-07-01464-CR and 05-07-01465-CR, we affirm the trial court's judgments. In cause no. 05-07-01466-CR, we affirm the trial court's judgment as modified.