DAMION DWAYNE ROY v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Bridges

Appellant Damion Dwayne Roy appeals from the trial court's judgments adjudicating his guilt in four burglary of a habitation offenses and setting punishment at four concurrent twelve-year terms.   In two issues, appellant contends:  (1) the trial court abused its discretion during the punishment phase by considering an extraneous offense which was not proven beyond a reasonable doubt and (2) the judgment fails to accurately reflect the conditions of community supervision the trial court found appellant violated.   We reform the judgment to accurately reflect the conditions of community supervision that the trial court found appellant violated and, in all other respects, affirm the judgment of the trial court.

Background

At the beginning of the hearing on the motion to adjudicate appellant's guilt, defense counsel mentioned a fifth, pending case against appellant.   The trial judge acknowledged appellant was indicted in a new case, but recognized appellant was there to admit he “violated the terms and conditions of [his] deferred adjudication” in the previous four cases.   In its motion, the State alleged appellant violated the following conditions of his probation:  (1) failed to report to his supervision officer during the month of April 2009 and any subsequent month thereafter;  and (2) failed to report to the Dallas County Day Reporting Center Orientation on March 31, 2009.   During the hearing, appellant freely and voluntarily pleaded true to the State's first allegation “he did not report one month.”   Following the trial court's granting of the State's motion, the court allowed argument and assessed appellant's punishment at twelve years' imprisonment.   This appeal ensued.

Analysis

In his first issue, appellant argues “the trial court abused its discretion by considering an extraneous offense which was not proven beyond a reasonable doubt.”   What appellant terms an “extraneous offense” is the new burglary of a habitation offense pending against appellant at the time of the adjudication hearing.   Appellant contends the trial court considered the pending case in assessing punishment in the four probation revocations.   He bases this argument on the fact that the trial court asked to have the court jacket in the new case brought to the courtroom, made a comment about knowing why appellant was in jail and not being happy about it, and referred to appellant as “dangerous” during sentencing.

Appellant first argues the trial court considered the “extraneous offense” in the determination of appellant's punishment, because the trial court asked the State to get the file on the new offense.   He contends the court requested the file so as not to have to “do[ ] this twice” and then, during the course of the hearing on the adjudication of guilt, the State asked “the Court to take judicial notice of the entire contents of each of the court's files.”   Our review of the record reveals the request for the court to take judicial notice was made in conjunction with an offer of evidence in the four cases.   No request was made with regard to the new case.   The trial court asked for the file after defense counsel brought it to the court's attention.   In the administration of a court's docket, a trial court may properly review pending court jackets.

Appellant also argues the trial court considered the extraneous offense because he called appellant “dangerous.”   Appellant failed to object to the court's comment.   Although the trial court did not elaborate on why he called appellant dangerous, we note that the court had before it evidence of a series of four burglaries occurring between September 2, 2008 and October 16, 2008 that appellant pleaded guilty to having committed.   These commission of these burglaries alone could have led the court to conclude appellant was dangerous and no evidence shows the comment was based on the new case.

With regard to the comment that the court knew appellant was in jail, appellant contends the following exchange demonstrates the trial court improperly considered the extraneous offense:

[THE PROSECUTOR]:  And that-I think that opens the door to why he's in jail.

[DEFENSE COUNSEL]:  He's in jail because of this motion.

[THE PROSECUTOR]:  He's not in jail because of this motion.   He's in jail because he-

THE COURT:  Yeah, I don't-I know why he's in jail.   We all know why he's in jail.

[THE PROSECUTOR]:  He has another burglary of a habitation case alleged.

THE COURT:  I know the family's here, and I–I–I know they're here.   And, Folks, I wasn't happy about the last case.   I'm not happy about the case.   I find the allegations in all four cases to be true․

In the foregoing exchange, defense counsel failed to object to the trial court's comment.   Further, we note that during the State's argument on punishment, the following exchange took place:

[PROSECUTOR]:  Your Honor, the defendant did absolutely nothing on probation.   The reason he is in jail, as you know, there's still a pending case.

[DEFENSE COUNSEL]:  I'm going to object to that.   That's outside the evidence.

THE COURT:  Fine, the objection's sustained.

This exchange provides evidence the trial court properly disallowed the State's attempted discussion of the new offense when an objection was properly raised.   See Rabon v. State, No. 05–09–00646–CR, 2010 WL 2510229 at *1 (Tex.App.-Dallas June 23, 2010, no pet.) (citing Loar v. State, 627 S.W.2d 399, 400 (Tex.Crim.App.1981) (“Where a party receives all the relief requested, nothing is preserved for review.”))   We overrule appellant's first issue.

In his second issue, appellant argues the judgment fails to accurately reflect the conditions of community supervision the trial court found appellant violated.   Specifically, appellant contends the State's motion contained an allegation in each case the appellant violated condition (q) in failing to report to the Day Reporting Center.   The judgments adjudicating guilt in each of the four cases state appellant violated the terms and conditions of community supervision set out in the motion.   However, the State only offered evidence that appellant violated condition (d) for failure to report to his supervision officer.   Appellant argues, and the State concedes, we should reform the judgment to accurately reflect the conditions of community supervision that the trial court found appellant violated.   Therefore, we sustain appellant's second issue and reform the judgment to reflect appellant violated condition (d) only.   See Tex.R.App. P. 43.2(b).  We affirm the trial court's judgment in all other respects.

DAVID L. BRIDGES JUSTICE