Opinion
Nos. 05-08-00694-CR, 05-08-00695-CR, 05-08-00696-CR
Opinion issued December 2, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 4 Dallas County, Texas, Trial Court Cause Nos. F05-51268-K, F05-56906-K, F05-56907-K.
Before Chief Justice WRIGHT and Justices RICHTER and FILLMORE.
OPINION
Michael Wayne Morgan appeals the revocation of community supervision in three cases. After revoking appellant's community supervision in the three cases, the trial court assessed punishment at five years' imprisonment in the third degree felony case and two years' imprisonment in the two state jail felony cases. In a single issue, appellant contends he was denied due process of law when the trial court revoked his community supervision based, in part, on an improper ex parte communication. We overrule appellant's issue and affirm the trial court's judgments. In cause number 05-08-00694-CR, appellant pleaded guilty to a state jail felony, possession of cocaine less than one gram, enhanced to a third degree felony by a prior conviction for aggravated assault with a deadly weapon. See Tex. Health Safety Code Ann. § 481.115(b) (Vernon Supp. 2009); Tex. Penal Code Ann. § 12.35(c) (Vernon Supp. 2009). Pursuant to a plea agreement, the trial court found appellant guilty and assessed punishment at five years' imprisonment, probated for two years, and a $1,000 fine. The State later moved to revoke appellant's community supervision. In a hearing on the motion, appellant pleaded true to the allegations. The trial court found the allegations true, revoked appellant's community supervision, and assessed punishment at five years' imprisonment. In cause numbers 05-08-00695-CR and 05-08-00696-CR, appellant pleaded guilty to a state jail felony of possession of cocaine and delivery of cocaine respectively. See Tex. Health Safety Code Ann. § 481.115(b) 481.112(b) (Vernon Supp. 2009). Pursuant to plea agreements in both cases, the trial court found appellant guilty and assessed punishment at two years' imprisonment, probated for five years. The State later moved to revoke appellant's community supervision. In a hearing on the motion, appellant pleaded true to the allegations. The trial court found the allegations true, revoked appellant's community supervision, and assessed punishment at two years' imprisonment in each case. Appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). A finding of a single violation of community supervision is sufficient to support revocation. 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.). Under Canon 3(B) of the Texas Code of Judicial Conduct, a judge is prohibited from initiating, permitting, or considering ex parte communications concerning the merits of a pending case. Tex. Code Jud. Conduct, Canon 3(B). An ex parte communication is one that involves fewer than all parties who are legally entitled to be present during the discussion of any matter. Erskine v. Baker, 22 S.W.3d 537, 539 (Tex. App.-El Paso 2000, pet. denied). The purpose behind prohibiting ex parte communications is to ensure that all legally interested parties are given their full right to be heard under the law and to ensure equal treatment of all parties. Abdygapparova v. State, 243 S.W.3d 191, 207 (Tex. App.-San Antonio 2007, pet. ref'd). Appellant contends the trial court revoked his probations primarily because of ex parte conversations in which he inferentially denied drug abuse. Such conduct, he contends, violated his due process right to an impartial judge. The record from the hearing on the State's motions to revoke probation state, in pertinent part, as follows: [Defendant]: I would just like to show you that I have been doing what I'm supposed to have been doing on my probation. Everything I was supposed to be doing. I went to my groups. Not one time did I miss reporting. I reported, even if I had to do a U.A.
[The Court]: But it is a situation about these dirty U.A.'s and this money that you toted around.
[Defendant]: Well, if I had — I was going to the warehouse to spend it. I had two installs for an [sic] in-dash screens that cost $450.
[The Court]: If I listen to you, you are not using. If I listen to you, you don't have any drug addiction issues. If I listen to you, because you have always got somebody else's dope in your hands and are handling it some kind of way, and we arrest you and you have got a pocketful of money. That is not a picked on somebody who is trying to, humming along, going along trying to do probation. That's the images of a drug dealer.
[The Defendant]: I was telling you that in the courtroom.
[The Court]: But that's what you told us everytime. It is always some accident about you handling somebody else['s] dope is how you come up dirty and I'm trying to figure out how you are supposed to be in recovery handling somebody else's dope with a pocket full of money all the time.
[The Defendant]: As far as these dirty U.A.'s go, I was dirty because I used.
[The Court]: That's not what you told me the other day and that's not what you have been telling your probation officer.
[The Defendant]: I told you I had bought me a pack — — everybody can say I bought a pack and I snorted cocaine. That's what I said I went and did. I bought a pack. I mean — — my counselor is Mr. Lang. He hasn't been there. I haven't had a one-on-one for me to talk to him about it. I was telling Mr. Faust that I was trying to talk to my counselor. His wife died, so he hasn't been there. I haven't seen Mr. Lang in almost a month, so I haven't really had nobody I could talk to, even after I got out of jail because I made bond and I got out of jail. I came right up here to see Mr. Faust. I came right in here and told him what happened. I ended up changing my sponsors because I couldn't get a hold of him anymore, so I just got tough with him because my sponsor, I wasn't able to get a hold of him, so I've been just going through so much back to back. I just — — like I say, I figured if I was still staying on my meds, which I got at the Salvation Army — — when they stopped that — — everytime — — I just — — I am just depressed. I'm not bipolar. They won't give me any meds anymore. I probably wouldn't be in this situation. It is just too much coming and coming and I felt like I was doing the right thing by just keep going. For me going to jail — — I had to move from my house. I had to find a different place to stay. I talked to Mr. Faust about that. I've got to find a place to stay. I've got to get my kid in school plus I'm trying to get in school, us plus two in a meeting because it is like coming in waves. It is steady coming in waves and I got tired one day and felt like —
[The Court]: All right. Go ahead.
[Defense Counsel]: I pass the witness.Following appellant's testimony, the trial court stated: "In all three cases, based on your pleas of true and the evidence presented I find the allegations in the State's motions to be true and I grant them, and I revoke your probation in each case." To support his contention that the trial court relied upon and improper ex parte communication, appellant relies on Abdygapparova. In Abdygapparova, the judge and prosecutor exchanged numerous notes during voir dire providing guidance to the prosecutor on the presentation of his case with the expectation that the notes would remain private. Abdygapparova, 243 S.W.3d at 207-08. The appellate court held that such communications showed bias on the part of the trial judge and prevented Abdygapparova from receiving a fair and impartial trial. Id. at 209. Appellant cites to evidence of a conversation between the judge and himself as an ex parte communication. However, the testimony relied upon by appellant does not support his contention. There is no evidence that appellant's attorney or the prosecutor were not present when the statements were made. The judge's remarks show only that appellant had previously appeared before the court and attempted to minimize his illegal drug activity. Moreover, unlike the ex parte communications in Abdygapparova, the conversation between the trial judge and appellant does not hint at any bias on the trial judge's part in favor of the prosecution. We conclude appellant's right to due process was not violated. We overrule appellant's issue and affirm the trial court's judgments.