No. 05-10-01075-CR
Opinion Filed May 31, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F08-53150-Y.
Before Justices O'NEILL, FRANCIS, and MYERS.
Opinion By Justice O'NEILL.
Justin Jamar Smith appeals the revocation of his community supervision. In three points of error, appellant contends the State failed to prove two of the allegations in the motion to revoke and the trial court's judgment should be modified to reflect the correct name of the State's attorney. We modify the trial court's judgment and affirm as modified.
Background
Appellant waived a jury and pleaded guilty to theft of property from a person. See Tex. Penal Code Ann. § 31.03(a), (e)(4)(B) (West Supp. 2010). Pursuant to a plea agreement, the trial court found appellant guilty and assessed punishment at two years' confinement in state jail, probated for three years. The State later moved to revoke appellant's community supervision, alleging several violations. Appellant's community supervision was conditioned on monthly reports to his community-supervision supervisor and other requirements. In moving to revoke appellant's community supervision, the State relied on several grounds, including failing to report, testing positive for marijuana, and failing to work faithfully at suitable employment. At the revocation hearing, appellant pleaded true to testing positive for marijuana and not true to the remaining allegations. During his testimony, appellant admitted he stopped reporting, stating he did so because he believed no one would help him. Appellant testified he did not work while on community supervision because he was homeless and it was difficult to find a job with a felony conviction. He did not pay the fees or restitution because he had no money or job and could barely afford to eat or ride the bus. Probation officer Laura Weddle testified appellant reported only three or four times during the probationary period, he did not pay court-ordered restitution, and he did not maintain a job during the probationary period. After hearing the testimony, the trial court found all of the allegations true, revoked appellant's community supervision, and assessed punishment at two years' confinement in state jail. Applicable Law
Appellate review of an order revoking community supervision 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). An order revoking community supervision must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence that would create a reasonable belief that the defendant has violated a condition of probation. Id. at 763-64. 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, 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). Discussion
In his first and second points of error, appellant contends the State failed to prove he willfully failed to pay probation fees and restitution. Appellant asserts that because he explained his homelessness and difficulty in finding a job, and the State presented no evidence of his ability to pay, the trial court abused its discretion in finding those allegations true. The State responds that the trial court did not abuse its discretion in finding appellant failed to make payments as alleged in the motion to revoke, and appellant had no affirmative defense to his failure to have made such payments. Appellant pleaded true to testing positive for marijuana. Appellant also told the trial court he voluntarily stopped reporting because he believed there was no one to help him. Because appellant pleaded true to violating one condition and confessed to committing a second violation, the trial court did not abuse its discretion in revoking appellant's community supervision. See Rickels, 202 S.W.3d at 763-64; Sanchez, 603 S.W.2d at 871. We overrule appellant's first and second points of error. In his third point of error, appellant contends the trial court's written judgment should be modified to reflect the correct name of the attorney representing the State at the revocation proceedings. The record shows the State was represented by Laquita Byrd. The written judgment recites that "Travis Wiles" appeared as the attorney for the State. Thus, the written judgment is incorrect. We sustain appellant's third point of error. We modify the trial court's judgment to show Laquita Byrd was the attorney for the State. 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). As modified, we affirm the trial court's judgment.