Summary
modifying judgment to show appellant violated the terms and conditions of community supervision as set out in State's amended motion to adjudicate guilt
Summary of this case from Lucas v. StateOpinion
No. 05-16-01170-CR
10-31-2017
AARON JEROME MITCHELL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7 Dallas County, Texas
Trial Court Cause No. F14-52432-Y
MEMORANDUM OPINION
Before Justices Francis, Myers, and Whitehill
Opinion by Justice Myers
Aaron Jerome Mitchell appeals his conviction, following the adjudication of his guilt, for aggravated assault with a deadly weapon. In seven issues, appellant contends the trial court erred in not considering all of the evidence and in finding some of the allegations in the State's motion to adjudicate true, and that the judgment should be modified to correct several errors. We modify the trial court's judgment and affirm as modified.
BACKGROUND
Appellant waived a jury trial and pleaded guilty to aggravated assault with a deadly weapon, a hammer. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on community supervision for five years, and assessed a $2,500 fine. The State later filed two separate motions to adjudicate guilt, alleging various violations of community supervision, but the trial court continued appellant on community supervision. In April 2016, the State filed an amended motion to adjudicate guilt alleging appellant violated the following conditions of community supervision: (a) by committing three new aggravated assault with a deadly weapon offenses and an injury to a child causing serious bodily injury offense; (b) by testing positive for marijuana on two occasions; (c) by failing to avoid persons or places of disreputable or harmful character; (d) by failing to report; (e) by failing to give 24-hours' notice of a change of home or employment address; (h) by failing to pay fines and court costs; (j) by failing to pay probation fees; (k) by failing to make a Crime Stoppers payment; (l) by failing to complete community service; (n) by failing to pay urinalysis fees; and (p) and (s) by failing to complete anger management classes as directed.
The State's amended motion to adjudicated filed on April 5, 2016 lists condition (p) as "...he did not complete Anger Management classes as directed" and condition (s) as "...he failed to complete Anger Management Class as directed."
Appellant pleaded not true to the allegations in a hearing on the motion. The trial court heard testimony from six witnesses regarding the three new aggravated assault and injury to a child causing serious bodily injury allegations. Additionally, probation officer Laura Weddle testified appellant used illegal narcotics while on community supervision, appellant was arrested for aggravated assault with a deadly weapon and resisting arrest while on community supervision, and that appellant had not completed any conditions of his community supervision. The trial court also heard testimony from Dr. William Flynn, who testified on appellant's behalf as an expert on witness identification. Flynn focused on eyewitness identification and the unreliability and invalidity of photographic lineups used by police departments.
The trial court found that appellant violated conditions (a), (b), (c), (d), (e), (h), (j), (k), (l), (n), and (p). The trial court adjudicated appellant guilty of the original aggravated assault with a deadly weapon offense and assessed punishment at twenty years' imprisonment.
STANDARD OF REVIEW
To revoke probation, whether it be regular or deferred probation, the State must prove the violation of a condition of probation only by a preponderance of the evidence. Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013). In the probation-revocation context, "a preponderance of the evidence" means "that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of probation." Rickels v. State, 202 S.W.2d 759, 764 (Tex. Crim. App. 2006). Appellate review of a trial court's decision to revoke community supervision and adjudicate guilt is limited to determining whether the trial court abused its discretion. Id. at 763. 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 on appeal, 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).
TRIAL COURT'S CONSIDERATION OF ORIGINAL OFFENSE
In his first issue, appellant contends the trial court did not consider all of the evidence pertaining to the original offense when addressing punishment. Appellant asserts the trial court focused on the facts of the three new aggravated assault offenses rather than considering the evidence related to the original aggravated assault offense. The State responds that the trial court properly considered all the evidence in assessing appellant's punishment.
Here, the trial court adjudicated appellant guilty of the original aggravated assault with a deadly weapon offense and sentenced appellant to twenty years' in prison, punishment that is within the statutory range of punishment for the offense. There is nothing in the record that supports appellant's claim that the trial court did not consider all of the evidence before it, including proceedings on the original aggravated assault with a deadly weapon offense. And a sentence that is not excessive nor unconstitutionally cruel or unusual will not be disturbed on appeal when it is within the statutory range of punishment. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref'd); see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We conclude the trial court did not abuse its discretion in revoking appellant's community supervision and adjudicating his guilt. Rickels, 202 S.W.3d at 763. We overrule appellant's first issue.
TRIAL COURT ERROR
In his second issue, appellant contends the trial court erred in finding he violated condition (e) by failing to give 24-hours' notice of a change in his home or employment address and, alternatively, the trial court's judgment should be modified to show the specific conditions he was found to have violated. The State responds that the trial court did not err in finding appellant violated condition (e).
We need not address appellant's complaint because "one sufficient ground for revocation will support the court's order to revoke [community supervision]." Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980 (citing Jones v. State, 571 S.W.2d 191 (Tex. Crim. App. 1978)). Nevertheless, we sustain appellant's issue to the extent he complains that the judgment does not show the specific conditions he violated.
MODIFY JUDGMENT ADJUDICATING GUILT
In his third through seventh issues, appellant contends the trial court's judgment adjudicating guilt should be modified to correct several errors, including that (1) the trial court did not find he violated conditions (a) or (s); (2) there was no plea bargain; (3) appellant pleaded not true to the amended motion to adjudicate; (4) Tommy Adams was the attorney representing the State at the proceedings; and (5) the judgment does not list the specific violations the trial court found appellant violated. The State agrees the judgment adjudicating guilt should be modified as appellant requests.
We agree there are several errors in the trial court's judgment. We sustain appellant's third, fourth, fifth, sixth, and seventh issues. We modify the judgment as follows: (1) the section entitled "attorney for State" is "Tommy Adams," (2) the section entitled "plea to motion to adjudicate" is "not true," (3) the section entitled "terms of plea bargain" is "N/A," and (4) the section entitled " while on community supervision, defendant violated the terms and conditions of community supervision as set out in the amended motion to adjudicate" is "while on community supervision, defendant violated conditions (a), (b), (c), (d), (e), (h), (j), (k), (l), (n), and (p) of community supervision as set out in the State's amended motion to adjudicate guilt." TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (courts of appeals have authority to modify a judgment); Estrada v. State, 334 S.W.3d 57, 63-64 (Tex. App.—Dallas 2009, no pet.) (same).
As modified, we affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
161170F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 7, Dallas County, Texas
Trial Court Cause No. F14-52432-Y.
Opinion delivered by Justice Myers. Justices Francis and Whitehill participating.
Based on the Court's opinion of this date, the judgment adjudicating guilt of the trial court is MODIFIED as follows:
The section entitled "Attorney for State" is modified to show "Tommy Adams."
The section entitled "Plea to Motion to Adjudicate" is modified to show "Not True."
The section entitled "Terms of Plea Bargain" is modified to show "N/A."
The section entitled "(5) while on community supervision, defendant violated the terms and conditions of community supervision" is modified to show "(5) while on community supervision, defendant violated conditions (a), (b), (c), (d), (e), (h), (j), (k), (l), (n), and (p) of community supervision as set out in the State's amended motion to adjudicate guilt."
As modified, we AFFIRM the trial court's judgment adjudicating guilt. Judgment entered this 31st day of October, 2017.