JOHNNY LANCE EDWARDS v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice O'Neill

Appellant Johnny Lance Edwards was charged with possession of a controlled substance.   On September 25, 2008, he was sentenced to three years deferred adjudication.   On February 7, 2011, the State moved to adjudicate guilt for various violations of his community supervision.   Appellant was then sentenced to seven years' imprisonment.   In three issues, appellant argues the trial court abused its discretion by finding certain allegations in the State's second amended motion to adjudicate guil true.   In his final issue, he argues the judgment of adjudication does not properly reflect the grounds for his revocation.   We affirm the trial court's judgment.

Because we conclude appellant's third issue is dispositive of three of his issues, we address it first.   Appellant argues the trial court abused its discretion when it found allegation two in the State's second amended motion to adjudicate guilt (failure to perform community service) true because the evidence was insufficient to prove he violated his probation.   Specifically, he argues the trial court failed to take proper notice of the judgment and conditions of his community supervision and that he had certain disabilities preventing him from completing his community service.   The State responds appellant's “true” plea to this allegation was sufficient to support the trial court's decision to adjudicate guilt.   We agree.

We review an order revoking community supervision under an abuse of discretion standard.  Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.2006);  Witkovsky v. State, 320 S.W.3d 425, 428 (Tex.App.—Fort Worth 2010, pet. dism'd).   In a revocation proceeding, the State must prove by a preponderance of the evidence that the defendant violated his terms and conditions of community service.  Witkovsky, 320 S.W.3d at 428–29.   The trial court is the sole judge of witness credibility and the weight to give their testimony.   Id. at 429.   We review the evidence in the light most favorable to the trial court's ruling.  Id. at 429.   If the State fails to meet its burden of proof, then the trial court abuses its discretion in revoking the community supervision.  Id.

The deferred adjudication statute does not enunciate a “substantial compliance” standard.  Fielding v. State, 719 S.W.2d 361, 364 (Tex.App.—Dallas 1986, pet. ref'd).   Violating one condition of deferred adjudication authorizes an adjudication of guilt on the original offense.  Id. Thus, a plea of “true” is, standing alone, sufficient to justify adjudicating guilt and revocation.   Id.;  see also Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App.1979).

During his revocation hearing, appellant's counsel stated, “Mr. Edwards will admit that he's not completed all of his community service hours.   We believe there's going to be some mitigating information on that, so it would be sort of a ‘yes, but’ on that one, Your Honor.”   Despite his attempt to try and mitigate his failure to complete a condition of his probation, the record is clear he did not complete his community service hours.   His counsel admitted appellant failed to complete it.   Further, Laurie Madelle, a technician with Kaufman County Adult Probation, testified appellant completed only six hours of his required 120 hours.

Because the deferred adjudication statute does not allow for “substantial compliance” and appellant pleaded true, the trial court did not abuse its discretion in proceeding to adjudicate guilt on this ground alone.   Appellant's third issue is overruled.   Having resolved this issue against appellant, we need not address his first and second issues in which he complains the trial court abused its discretion by finding allegations four (possession of a controlled substance) and five (“offense of Theft Wire/Cable 50% Alum/Brnze/Copper < $20,000”) true.

In his final issue, appellant argues the trial court abused its discretion by failing to ensure the grounds for revocation were in the judgment of adjudication.   He argues the judgment is defective because it references the State's “original or amended” motion to adjudicate guilt, rather than the State's second amended motion to adjudicate guilt.

In Maldonado v. State, 05–04–00658–CR, 2004 WL 3001064, *2 (Tex.App.—Dallas Dec. 29, 2004, no pet.) (not designated for publication), we considered and rejected a similar complaint.

In that case, appellant argued the judgment stated the trial court relied on the original motion to revoke rather than the second amended motion to revoke, which was the motion the State proceeded on.   We concluded that although “the trial judge did not perfectly articulate which motion he was considering, the record clearly shows the judge, prosecutor, and appellant were dealing with the second amended motion to revoke probation.   Further, appellant expressly acknowledged that motion.”   Id.

Here, the record shows when the trial court asked if “we are working off of the amended motion to revoke,” the State corrected the trial court by stating, “we're working off of the second amended motion to adjudicate which was filed February 7, 2011” and provided the court with another copy.   When the court asked, “so we're talking about four offenses,” the State and counsel for appellant agreed four new offenses were at issue.   Similar to Maldonado, the record is clear the judge, prosecutor, and appellant understood the second amended motion to adjudicate guilt was at issue.   Accordingly, appellant's fourth issue is without merit.

While not requested by either party, we have the power to modify incorrect judgments when we have the necessary information to do so.   See Tex.R.App. P. 43.2(b);  Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.App.—Dallas 1991, pet. ref'd).   Thus, we modify the trial court's judgment to state the following:  “While on community supervision, Defendant violated the terms and conditions of community supervision as set out in the State's SECOND AMENDED Motion to Adjudicate Guilt, herein incorporated by reference.   Accordingly, the Court Grants the State's Second Amended Motion to Adjudicate the Defendant's guilt in the above cause.”

As modified, we affirm the trial court's judgment.

110702F.U05 S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

JOHNNY LANCE EDWARDS, Appellant

No. 05–11–00702–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 86th Judicial District Court of Kaufman County, Texas.  (Tr.Ct.No.26471–86).

Opinion delivered by Justice O'Neill, Justices Richter and Francis, participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

We DELETE the words “While on community supervision, Defendant violated the terms and conditions of community supervision as set out in the State's ORIGINAL OR AMENDED Motion to Adjudicate Guilt, herein incorporated by reference.   Accordingly, the Court Grants the State's Motion to Adjudicate the Defendant's guilt in the above cause.”

And REPLACE them with the following the words:

While on community supervision, Defendant violated the terms and conditions of community supervision as set out in the State's SECOND AMENDED Motion to Adjudicate Guilt, herein incorporated by reference.   Accordingly, the Court Grants the State's Second Amended Motion to Adjudicate the Defendant's guilt in the above cause.

As modified, the judgment of the trial court is AFFIRMED.

Judgment entered April 12, 2012.

/Michael J. O'Neill/

MICHAEL J. O'NEILL

JUSTICE

MICHAEL J. O'NEILL JUSTICE