Opinion
No. 05-11-00857-CR
06-08-2012
STEWART GARY TOLLEFSRUD, Appellant v. THE STATE OF TEXAS, Appelle
Affirmed as Modified; Opinion Filed June 8, 2012.
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F-0543635-Y
MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice O'Neill
Appellant Stewart Gary Tollefsrud pleaded guilty in 2006 to possession of a controlled substance and was sentenced to ten years' imprisonment, probated for five years, and assessed a $2,500 fine. On April 7, 2009, the State filed a motion to revoke probation for failing to pay his community supervision fee, failing to complete community service hours, failing to contribute to Dallas County Crime Stoppers, and assaulting a member of his household. On May 13, 2011, the State filed a second motion to revoke probation for failing to pay his community supervision fee, failing to contribute to Dallas County Crimes Stoppers, and assaulting a member of his household.
The trial court held a hearing on the State's second motion to revoke on June 21, 2011. At the beginning of the hearing, the State struck the assault allegation in their motion and proceeded on the two "technical" violations. Appellant pleaded "true" to the remaining "technical" violations. At the conclusion of the hearing, the trial court revoked appellant's probation and sentenced him to eight years' confinement.
On appeal, appellant argues the trial court abused its discretion by failing to order a Comprehensive Assessment and Treatment Services (CATS) evaluation. He further asserts the judgment fails to accurately reflect the conditions of probation he violated. As modified, we affirm the trial court's judgment.
Failure to Order a CATS Evaluation
During the revocation hearing, the court heard testimony that appellant, who was one month shy of completing his probation, began abusing drugs and alcohol again. On one occasion, he became very agitated with Kathleen Fam, who was the mother of his child and with whom he was living at the time. Fam testified appellant assaulted her. She told the court appellant turned quickly and hit her in the head with his elbow. When she fell to the ground, he continued kicking her head. Fam's injuries required a six-day stay in the hospital.
Appellant admitted to drinking wine on the day of the assault, but testified he did not intentionally elbow Fam. He further testified he only kicked her three or four times in the head because he was trying to get her to let go of him.
Appellant argues the trial court abused its discretion by failing to order a CATS evaluation because the evidence clearly indicated appellant suffered from a drug and alcohol problem. He contends the evaluation would have assisted the court in determining whether treatment was a more appropriate sentencing option than incarceration. He encourages this court to take judicial notice that a CATS evaluation is commonly performed as part of a pre-sentence investigation report in Dallas County, and in certain instances, the code of criminal procedure requires a pre-sentence investigation report before the court can impose a sentence. See Tex. Code Crim. Proc. art. 42.12 § 9(a), (h) (West Supp. 2011). He "perceives of no reason why the same restrictions should not be applicable to a probation revocation."
We decline appellant's invitation to apply article 42.12, section 9 to revocation proceedings. First, he has failed to cite to any authority in which an appellate court has applied the statute to such circumstances. Without any mandatory authority requiring the trial court to order a CATS evaluation, appellant cannot show the trial court abused its discretion by failing to order one. See Jones v. State, 333 S.W.3d 615, 622 (Tex. App.-Dallas 2009, pet. ref'd) (a trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement).
Further, during the hearing, appellant acknowledged that "It's up to the Court if the Court is going to order it." Thus, defense counsel admitted he knew it was within the trial court's discretion whether to order the evaluation. He cannot now take a position on appeal that is opposite of that which he asserted to the trial court. See, e.g., Bulington v. State, 179 S.W.3d 223, 232-33 (Tex. App.-Texarkana 2005, no pet.) (holding appellant could not complain on appeal of "denial of a defensive theory that he eschewed at trial"). Accordingly, we overrule appellant's first issue.
Modification of Judgment
In his second issue, appellant argues the trial court's judgment fails to accurately reflect the conditions of the probation he was found to have violated. Specifically, he argues the judgment revoking community supervision states:
The Court FINDS Defendant has violated the conditions of community supervision as set out in the State's ORIGINAL Motion to Revoke Community Supervision as follows: See attached Motion to Revoke Community Supervision.However, the motion to revoke is not attached to the judgment. Appellant contends that even if it was attached, it would incorrectly state the conditions he violated because the motion to revoke included an allegation of assault against a family member. The State abandoned this argument at the revocation hearing.
We agree with appellant's argument, and the State concedes the judgment should be modified to reflect the conditions appellant violated. Based on the undisputed facts reflected in the appellate record, we have authority to modify the judgment to make it "speak the truth." See Tex. R. App. P. 43.2; Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we modify the judgment to state the following:
The Court FINDS Defendant has violated conditions (j) and (o) of his community supervision.
Appellant's second issue is sustained.
Conclusion
As modified, we affirm the trial court's judgment.
MICHAEL J. O'NEILL
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110857F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
STEWART GARY TOLLEFSRUD, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00857-CR
Appeal from the Criminal District Court No.7 of Dallas County, Texas. (Tr.Ct.No. F- 0543635-Y).
Opinion delivered by Justice O'Neill, Justices Richter and Lang-Miers, participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The Court FINDS Defendant has violated conditions (j) and (o) of his community supervision.
As modified, we AFFIRM the trial court's judgment.
Judgment entered June 8, 2012.
MICHAEL J. O'NEILL
JUSTICE