Opinion
No. 05-03-00633-CR.
Opinion Filed March 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F00-47874-L. Affirm as Modified.
Before Justices MOSELEY, O'NEILL and RICHTER.
OPINION
Jose Vallitino entered a negotiated guilty plea to the offense of theft of property from a person. Pursuant to the plea bargain agreement, the trial court sentenced appellant to two years in a state jail facility, probated for three years, and assessed a $500 fine. The State later filed a motion to revoke probation, alleging appellant violated several conditions of supervision. Following a hearing, the trial court revoked community supervision and assessed punishment at two years in a state jail facility and a $500 fine. In his sole issue, appellant complains the trial court abused its discretion in revoking his probation. We will affirm the trial court's judgment as modified. Appellate review of a probation revocation is limited to a determination of whether the trial court abused its discretion. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984). We examine the evidence in the light most favorable to the trial court's findings. See Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.) (en banc). The State must prove by a preponderance of the evidence that the probationer violated the terms and conditions of his supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993); Lee, 952 S.W.2d at 901. In its motion to revoke, the State alleged appellant was convicted of the new offenses of failure to identify and evading arrest, as well as failure to report to his probation officer, failure to pay his probation fee, and failure to pay restitution. Appellant contends he was unable to comply with the reporting and monetary conditions of probation because he was wrongfully deported to Mexico after being placed on community supervision. As to the allegations of the new convictions, appellant argues that no documents were introduced verifying the convictions were valid or final. Appellant asserts that although he pleaded true, he denied the veracity of the allegations. The State responds that the trial court did not abuse its discretion in revoking appellant's probation. We agree with the State. The record reflects that appellant pleaded true to each of the allegations in the motion to revoke. He then testified that he had been wrongfully deported to Mexico. Appellant never asserted his failure to pay his probation fee or restitution was the result of a financial inability to pay. See Lee, 952 S.W.2d at 901 (one who has ability to pay, but does not, without more, leaves fact finder with strong inference that failure to pay was intentional). Furthermore, although appellant denied his guilt of a sexual assault and a robbery that were not alleged in the motion to revoke, he never denied he had been convicted of the failure to identify and evading arrest offenses. Appellant merely contends the State did not introduce documentary evidence showing the date of the offenses or that the convictions were final. Appellant's plea of true, standing alone, however, is sufficient to support the revocation of community supervision. Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. [Panel Op.] 1979). And, proof of one violation is sufficient to support a probation revocation. See id.; Lee, 952 S.W.2d at 900. Having reviewed the record in the light most favorable to the trial court's findings, we conclude the trial court did not abuse its discretion in revoking appellant's community supervision. We overrule appellant's sole issue. We note that the April 21, 2000 judgment suspending imposition of sentence and placing appellant on community supervision incorrectly states the term of community supervision was five years. The plea bargain agreement was for three years community supervision, and that is the term of supervision the trial court orally pronounced. Nevertheless, because that judgment is no longer in effect, we will not modify the judgment to correct the clerical error. The error, however, was carried forward to the judgment revoking community supervision. In the section entitled "original punishment assessed," it states the community supervision term was five years. We have the authority to modify the trial court's judgment when we have the necessary information before us to do so. 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). Accordingly, we modify the section of the trial court's judgment revoking community supervision entitled "original punishment assessed" to show the term of community supervision was "3 years." As modified, we affirm the trial court's judgment.
We recognize that probation may not be revoked on the basis of a non-final conviction. See Prince v. State, 503 S.W.2d 777, 778 (Tex.Crim.App. 1974); Flores v. State, 102 S.W.3d 336, 337 (Tex. App.-Eastland 2003, pet. ref'd). In Prince, the conviction upon which the State relied had been set aside. Prince, 503 S.W.2d at 778. In Flores, the conviction upon which the State relied had been obtained one month before the revocation hearing. Flores, 102 S.W.3d at 337. In this case, the first motion to revoke was filed on September 13, 2002, more than a year after the conviction for the failure to appear and almost two years after the conviction for the evading arrest.