Opinion
NO. 02-15-00394-CR
05-26-2016
AMANDA SHELLEY APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1397539D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
This is an appeal from a judgment revoking deferred adjudication community supervision and adjudicating guilt. The day after the trial court placed Appellant Amanda Shelley on ten years' deferred adjudication community supervision for aggravated robbery with a deadly weapon, she was arrested for aggravated assault with a deadly weapon and possession of a dangerous drug. See Tex. Penal Code Ann. § 22.02 (West 2011); Tex. Health & Safety Code Ann. § 483.041 (West Supp. 2015). The State filed a petition to proceed to adjudication, alleging in four paragraphs that Shelley had violated her community-supervision conditions by committing two new offenses, by illegally using a controlled substance or alcohol, and by knowingly possessing weapons. Shelley pleaded true to the allegation that she had used a controlled substance or alcohol and pleaded not true to the remaining three paragraphs. The trial court, after conducting a revocation hearing, found all four paragraphs in the State's petition true, revoked Shelley's deferred adjudication community supervision, adjudicated her guilty of the offense of aggravated robbery with a deadly weapon, and sentenced her to ten years' confinement. In two issues, Shelley argues that she was denied due process and due course of law because the trial court failed to ensure that she understood the petition and because the trial court failed to provide findings of fact. We will affirm.
In her first issue, Shelley argues that she was denied due process under the Fifth Amendment to the United States Constitution and due course of law under the article I, section 19 of the Texas constitution because the trial court failed to ensure that she had meaningfully reviewed or understood the petition. The record demonstrates that Shelley received notice of the petition, that she waived the right to the formal reading of the petition at the revocation hearing, and that she stated she understood what the allegations were against her. A complaint that the trial court failed to go over the nature of the allegations with the defendant and confirm that she understood them must be preserved at trial. See Rogers v. State, 640 S.W.2d 248, 265 (Tex. Crim. App. [Panel Op.] 1981) (op. on reh'g) (holding complaint waived because appellant "failed to voice any due process objection to the procedures used by the trial court" during probation-revocation hearing); see also Barker v. State, No. 04-10-00085-CR, 2010 WL 5619685, at *1 (Tex. App.—San Antonio Dec. 15, 2010, no pet.) (mem. op., not designated for publication) (holding that due-process complaint—that revocation hearing was cursory and that trial court "'without further inquiry or admonition' asked [appellant] whether State's allegations were true"—was waived on appeal); Whitney v. State, No. 03-08-00565-CR, 2009 WL 564155, at *1 (Tex. App.—Austin Mar. 6, 2009, no pet.) (mem. op., not designated for publication) (holding that due-process complaint—that the trial court accepted plea of true without "inquiring specifically what it was Appellant believed to be true"—was not preserved). Because at the revocation hearing Shelley did not object or otherwise indicate that she did not understand the State's allegations against her or raise this complaint in a motion for new trial, she waived this complaint.See Tex. R. App. P. 33.1; Rogers, 640 S.W.2d at 265; Barker, 2010 WL 5619685, at *1; Whitney, 2009 WL 564155, at *1; see also Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (stating that a reviewing court should not address the merits of an issue that has not been preserved for appeal). We overrule Shelley's first issue.
Because in both her first and second issues Shelley does not claim that the Texas constitution provides more protection than the United States Constitution, we need not address her state constitutional claims separately. See Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 830 (1994).
Although Shelley argues that the trial court's alleged failure to ensure compliance with the Due Process Clause and the Due Course of Law Clause constitutes structural error that cannot be waived and requires automatic reversal, Shelley's complaint in her first issue—that the trial court failed to ensure she had meaningfully reviewed or understood the petition—in fact alleges an error in trial process, not a structural defect affecting the framework within which the trial proceeds. See Jordan v. State, 256 S.W.3d 286, 290 (Tex. Crim. App. 2008) (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265 (1991), and explaining instance of structural defect that does not require harm analysis occurs when State fails to meet its burden of proof concerning finality of prior felony convictions for enhancement). Thus, Shelley was required to comply with the rules for preserving error. See Tex. R. App. P. 33.1. --------
In her second issue, Shelley argues that she was denied due process under the Fifth Amendment to the United States Constitution and due course of law under the article I, section 19 of the Texas constitution because the trial court failed to provide findings of fact. Shelley concedes that she did not request written findings of fact but argues that no requirement exists that she must request findings in order to preserve her right to them. Controlling case law, however, holds to the contrary. See Tate v. State, 365 S.W.2d 789, 791 (Tex. Crim. App. 1963) ("In the absence of any request of the trial court to make findings upon which it based its order of revocation[,] appellant's contention presents no error."); see also Balderas v. State, Nos. 05-14-01081-CR, 05-14-01082-CR, 05-14-01083-CR, 2015 WL 3814354, at *5 (Tex. App.—Dallas June 18, 2015, pet. ref'd) (mem. op., not designated for publication) ("In the absence of such a request, an order revoking probation is sufficient, even though it does not recite the findings and conclusions upon which the trial court acted."). Moreover, we note that even though Shelley did not request findings, the trial court orally stated the grounds it found to be true and also included the following statement in the judgment: "THE COURT FINDS THE ALLEGATIONS IN PARAGRAPHS ONE, TWO, THREE, AND FOUR TO BE TRUE." Because the trial court's judgment provided the information necessary to determine the bases of the revocation, due process was satisfied. See Reasor v. State, 281 S.W.3d 129, 136 (Tex. App.—San Antonio 2008, pet. ref'd) (holding that appellant was afforded adequate notice of the grounds underlying the court's revocation and that his ability to prosecute an appeal was not diminished by trial court's orally specifying at the end of the hearing and memorializing in the judgment the particular conditions justifying revocation); Payne v. State, Nos. 04-00-00659-CR, 04-00-00660-CR, 2001 WL 540303, at *3 (Tex. App.—San Antonio May 23, 2001, no pet.) (not designated for publication) (holding that due process was satisfied when trial court complied with request for findings by stating in judgment that condition number one was violated). Accordingly, we overrule Shelley's second issue.
Having overruled Shelley's two issues, we affirm the trial court's judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 26, 2016