Opinion
No. 05-02-00474-CR.
Opinion filed March 20, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F97-02384-TI. AFFIRMED.
MEMORANDUM OPINION
Charles Edward Sheppard appeals the revocation of his probation. In a single point of error, appellant contends that the probation revocation should be overturned because one of the conditions of probation he allegedly violated resulted from an invalid modification order. We affirm. Appellant pleaded nolo contendere to the offense of injury to a child. See Tex. Pen. Code Ann. § 22.04 (Vernon 2003). On December 1, 1998, pursuant to a negotiated plea bargain, the trial court sentenced appellant to ten years' confinement, probated for five years, and imposed seventeen conditions of probation. The conditions were later amended to add three conditions regarding sex offender counseling and treatment, prohibiting appellant from going within 1000 feet of any location where children younger than age seventeen might gather, and alcohol treatment. Subsequently, pursuant to a modification order, the probation conditions were amended to add participation in electronic monitoring. On January 18, 2002, the State filed an amended motion to revoke probation, alleging that appellant violated the conditions regarding sex offender counseling and treatment and electronic monitoring. At the hearing on the motion to revoke, appellant pleaded not true. The trial court found the allegations true, revoked appellant's probation, and sentenced him to ten years' confinement. Appellant argues that the modification of his conditions of probation to include sex offender counseling and treatment was invalid and, therefore, the ruling revoking his probation for violation of this invalid condition should be reversed. Appellant does not challenge on appeal the finding that he failed to participate in electronic monitoring and had time violations. Although ordinarily a defendant may not appeal an order altering or modifying the conditions of his probation, he may complain of a modification order when violation of that order formed the basis of a subsequent revocation. Elizondo v. State, 966 S.W.2d 671, 672 (Tex.App.-San Antonio 1998, no pet.) (citing Sanchez v. State, 603 S.W.2d 869, 870 (Tex.Crim.App. [Panel Op.] 1980) and Tex. Code Crim. Proc. Ann. art. 42.12(23)(b) (Vernon Supp. 2003)). However, a finding of a single violation of community supervision is sufficient to support revocation. O'Neal v. State, 623 S.W.2d 660, 661 (Tex.Crim.App. 1981); Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. [Panel Op.] 1980); Sanchez, 603 S.W.2d at 871; Jones v. State, 571 S.W.2d 191, 193-94 (Tex.Crim.App. [Panel Op.] 1978); Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Thus, to prevail, an appellant must successfully challenge all the findings that support the revocation order. Joseph, 3 S.W.3d at 640; Sanders v. State, 657 S.W.2d 817, 818 (Tex.App.-Houston [1st Dist.] 1983, no pet.). Consequently, even if the sex offender counseling and treatment condition were invalid, the error would be harmless because the revocation order is supported by an unchallenged finding. See Sanders, 657 S.W.2d at 818-19; see also Ex parte Pena, 739 S.W.2d 50, 51 (Tex.Crim.App. 1987) ("Where a trial judge imposes an invalid condition of probation, the proper remedy is to reform the judgment of conviction by deleting the condition."). We resolve appellant's issue against him and affirm the trial court's judgment.
The State initially alleged violation of the condition that prohibited contact between appellant and children under age seventeen, but then struck that allegation.