Opinion
No. 04-04-00373-CR
Delivered and Filed: April 27, 2005. DO NOT PUBLISH.
Appeal from the 218th Judicial District Court, LaSalle County, Texas Trial Court No. 96-11-00120-Crl, Honorable Donna S. Rayes, Judge Presiding. Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Roberto Teneyuca appeals the revocation of his community supervision. We affirm the trial court's judgment. On March 25, 1997, Teneyuca pled guilty to the offense of burglary of a habitation and was sentenced to seven years imprisonment. The trial court then suspended his sentence and placed him on community supervision for seven years. On July 13, 1998, the State filed a motion to revoke Teneyuca's community supervision. On August 28, 1998, the trial court held a hearing on the motion, and although it found that Teneyuca had violated the terms of his community supervision, it decided to continue his community supervision. On June 7, 2000, the State filed a second motion to revoke. On November 28, 2000, the trial court held another hearing and, once again, determined that Teneyuca had violated the terms of his community supervision. Nonetheless, the trial court decided to continue his community supervision. On April 30, 2003, the State filed a third motion to revoke. On November 25, 2003, the trial court heard the State's motion. At the hearing, Teneyuca pled true to having failed to pay a probation fee, court costs, and a fine. The trial court then reset the case so that the probation department could prepare a pre-sentence investigation report. On March 25, 2004, the trial court continued the hearing. Teneyuca submitted evidence showing that he had paid his past-due probation fees, court costs, and fine. Although the trial court expressed its appreciation at Teneyuca finally submitting his payments, it revoked his community supervision. On appeal, Teneyuca argues that the trial court abused its discretion in revoking his community supervision. Specifically, Teneyuca argues that his plea of "true" was improvident because he mistakenly assumed that his community supervision would be revoked immediately after the hearing on November 25, 2003:
The trial court's failure to have revoked [Teneyuca]'s community supervision immediately after the initial hearing on the State's motion to revoke on November 25, 2003, made it possible for [Teneyuca] to make full payment of all monies owed prior to the subsequent hearing held four months later on March 25, 2004, rendering his prior plea of true, therefore, improvident, and it should not have been considered by the trial court as evidence to support the revocation of his probation.Reviewing the record, we fail to see how the trial court resetting the hearing pending a pre-sentence investigation report rendered Teneyuca's plea of true "improvident." At the hearing, Teneyuca was fully aware that the trial court was resetting the hearing pending a pre-sentence investigation report, and at no time did Teneyuca object or move to withdraw his plea of true:
Court: State's Exhibit 1 is admitted and the court approves the written waiver and consent to stipulations of testimony, motion to revoke probation. Mr. Teneyuca, did you sign this paper and the first paper that I showed you, the admonition paper, and also the written waiver paper? Did you sign both of those papers freely, intelligently, knowingly and voluntarily?
Teneyuca: Yes, ma'am.
Court: Mr. Teneyuca, based upon your plea of true to Paragraphs C and D and the evidence introduced herein, I find that Paragraphs C and D of the State's Petition for Revocation of Probation are true. At this time, I'm going to reset your case. I'm requesting that the Probation Department prepare what's called a pre-sentence investigation report. That's a written report that is given to me that helps me determine what the punishment should be in this case. I'm ordering that you cooperate with the Probation Department in the preparation of the report. How much time do you need?
Probation Officer: Judge, I think we're on a rotating schedule.
Montemayor: It's on my case load. It's my MTR.
Court: How much time do you need, Mr. Montemayor?
Montemayor: Whatever they agreed to is fine with me.
Prosecutor: Do we have a March date available?
Court: March 25th. This case is reset for March 25th for sentencing.
Defense counsel: Your Honor, may I make a request that the court authorize the Probation Department to make a copy of the report, when it is finished, available to me?
Court: They will send you one.Then, at the hearing on March 25, 2004, Teneyuca's attorney stated that he and Teneyuca had had "plenty of opportunity" to review the pre-sentence investigation report and had no objections to it. Once again, despite plenty of opportunity, Teneyuca made no effort to withdraw his plea of true or otherwise object. As such, he cannot complain about the trial court's action of continuing the hearing on appeal. See Rogers v. State, 640 S.W.2d 248, 263-64 (Tex.Crim.App. 1982) (opinion on State's second motion for rehearing) (holding that appellant cannot complain on appeal of trial court's continuation of revocation hearing "when he has not preserved his error in the trial court by making some type of due process objection, either at the time the judge continues the hearing and/or probation, or at the time of actual revocation or at the time of sentencing"). Teneyuca also argues that the State failed to prove that he intentionally failed to pay fees and costs. For support, he relies on Ortega v. State, 860 S.W.2d 561, 567 (Tex.App.-Austin 1993, no pet.), which states that the State has the burden to prove that the probationer intentionally failed to pay fees and costs, even if the probationer fails to raise the issue of inability to pay as an affirmative defense. Here, however, because Teneyuca pled true, he cannot challenge the sufficiency of the evidence. Hays v. State, 933 S.W.2d 659, 661 (Tex.App.-San Antonio 1996, no pet.). A "plea of true, standing alone, is sufficient to support the revocation of probation." Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. [Panel Op.] 1979). Thus, Teneyuca's plea of true sufficiently supports his violating the terms of his community supervision. Teneyuca, however, argues that his plea of true is not sufficient because he did not plead true to intentionally failing to pay the required monies. We disagree. Teneyuca pled true to the following allegations contained in the State's motion to revoke:
That the said defendant, during the term of his probation, has violated the terms and conditions of the probation in the following manner to wit: . . .
(C) That the said defendant, Roberto Teneyuca, during the term of this probation, and prior to the filing of this petition, has failed and refused to pay a probation fee of $40.00 per month during the probation period, defaulting on the 25th days of August, September, October, November, December 2002, January, February, March 2003.
(D) That the said defendant, Roberto Teneyuca, during the term of this probation, and prior to the filing of this petition, has failed and refused to pay the court costs in the amount of $126.50, the fine in the amount of $1000.00, defaulting on the 25th days of August, September, October, November, December 2002, January, February, March 2003.Said defendant is now in arrears in the total amount of $1214.00, $496.00 in probation fees, $10.00 in court costs, and $708.00 in fine, due through March 2003. (emphasis added). Thus, Teneyuca pled true to violating the terms and conditions of his probation by failing to pay the required monies. Teneyuca's plea is sufficient. Finding no abuse of discretion by the trial court, we affirm the trial court's judgment.