MARSHALL GLENN CHERRY v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Lang

Marshall Glenn Cherry appeals the judgment revoking his community supervision.   In two points of error, appellant contends the trial court abused its discretion by assessing a term of imprisonment, and the written judgment should be modified to reflect his plea to the motion to revoke.   We modify the trial court's judgment and affirm as modified.   The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts.   We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.

Appellant waived a jury and pleaded guilty to injury to a child, causing serious bodily injury.   See Tex. Penal Code Ann. § 22.04(a)(1) (West Supp.2010).   Pursuant to a plea agreement, the trial court assessed punishment at ten years' imprisonment, probated for ten years, and a $2,500 fine.   The State later moved to revoke community supervision, alleging appellant violated six conditions of his community supervision.   In a hearing on the motion, appellant pleaded not true to one of the allegations, and pleaded true to the remaining five allegations.   The trial court granted the State's motion, revoked appellant's community supervision, and assessed punishment at ten years' imprisonment.

In his first point of error, appellant contends the trial court abused its discretion by assessing a term of imprisonment, rather than probation, because such punishment violates the objectives of the penal code and is not necessary to prevent a likely recurrence of his criminal behavior.¹  Appellant asserts that he specifically asked for treatment for his mental health issues and drug addiction, and imposing a prison sentence was merely punitive and does not further the rehabilitative goals of the penal code.   The State responds that the trial court properly acted within its discretion by sentencing appellant to ten years' imprisonment because it was presented with sufficient evidence to form a factual basis for its decision.

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).

The evidence presented shows appellant violated five conditions of his community supervision, including failing to report and testing positive for cocaine.   Although appellant denied that he failed to participate in “SAFPF Continuum of Care as directed,” it was the trial court's role, as the fact finder in this case, to reconcile any conflicts in the evidence and judge the witnesses' credibility.   See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App.2003);  Lee v. State, 952 S.W.2d 894, 897 (Tex.App.-Dallas 1997, no pet.) (en banc).

Moreover, appellant concedes that the ten-year sentence assessed is within the statutory range of punishment for the first-degree-felony offense.   See Tex. Penal Code Ann. §§ 12.32, 22.04(e).   A sentence that is assessed within the punishment range for the offense is neither cruel, unusual, nor excessive, and complies with the objectives of the Texas Penal Code. See Carpenter v. State, 783 S.W.2d 232, 232-33, (Tex.App.-Dallas 1989, no pet.);   see also Tex. Penal Code Ann. § 1.02 (West 2003);  Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984) (as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal).

Because the evidence is sufficient to prove appellant violated a condition of his community supervision, 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 point of error.

In his second point of error, appellant contends the trial court's judgment should be modified to show he pleaded not true to one allegation and true to five allegations.   The State responds that appellant is entitled to have the record properly reflect the nature of his plea, and it agrees to appellant's proposed modifications.

In its motion to revoke, the State alleged appellant violated six conditions of his community supervision:  Condition (B), testing positive for cocaine, Condition (D), failing to report, Condition (J), failing to pay probation fees as directed, Condition (K), failing to pay Crime Stoppers fees as directed, Condition (O), failing to pay urinalysis fees as directed, and Condition (W), failing to participate in SAFPF Continuum of Care as directed.   In a hearing on the motion, appellant pleaded true to violations Conditions (B), (D), (J), (K), and (O), and pleaded not true to violating Condition (W).  However, the trial court's judgment revoking community supervision recites that appellant pleaded true to the motion to revoke.   Thus, the judgment is incorrect.   We sustain appellant's second point of error.

We modify the trial court's judgment revoking community supervision to show appellant pleaded true to Conditions (B), (D), (J), (K), and (O) and not true to Condition (W) of the motion to revoke.   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.

FOOTNOTES

FN1. Although appellant did not complain about the sentence at the time it was imposed, he filed a motion for new trial that argued the “sentence is excessive and not in keeping with the rehabilitative goals of the penal code.”   Thus, appellant preserved his complaint for appellate review.   See Tex.R.App. P. 33.1(a)(1);  Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.)..  FN1. Although appellant did not complain about the sentence at the time it was imposed, he filed a motion for new trial that argued the “sentence is excessive and not in keeping with the rehabilitative goals of the penal code.”   Thus, appellant preserved his complaint for appellate review.   See Tex.R.App. P. 33.1(a)(1);  Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.).

DOUGLAS S. LANG JUSTICE