FELIPE DEJESUS MORENO v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

FELIPE DEJESUS MORENO, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–11–00369–CR

Decided: December 20, 2011

Before Justices Moseley, FitzGerald, and Richter

MEMORANDUM OPINION

Opinion By Justice FitzGerald

Felipe DeJesus Moreno appeals from the adjudication of his guilt for burglary of a habitation.   In a single point of error, appellant contends the trial court erred in failing to make a finding that appellant intentionally failed to pay his costs, thereby increasing his sentence based on this improper consideration.   We affirm the trial court's judgment.   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.

Procedural Background

Appellant waived a jury and pleaded guilty to burglary of a habitation.   See Tex. Penal Code Ann. § 30.02(a)(1) (West 2011).   Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on five years' community supervision, and assessed a $1,500 fine.   The State later moved to adjudicate guilt, alleging appellant violated several conditions of community supervision, including:  (1) committing a new aggravated assault with a deadly weapon offense, (2) failing to pay costs and fines, (3) failing to pay supervision fees, (4) failing to pay Crime Stoppers fees, (5) failing to participate in community supervision hours, (6) failing to pay urinalysis fees, and (7) failing to pay restitution.   Appellant pleaded not true to the allegations in a hearing on the motion.

The trial court heard testimony from several witnesses and appellant.   Probation officer Rose Lugo testified appellant was placed on community supervision on October 2, 2009, and the motion to adjudicate was filed on October 29, 2010.   Probation records show appellant had made some payments to the costs, fees, fine, and restitution, but he was delinquent on all amounts.   Appellant was directed to complete 240 hours of community service, but had completed only about seventy-five hours.   Lugo testified that on August 7, 2010, appellant was arrested and charged with aggravated assault with a deadly weapon.

Appellant testified he was unemployed when first placed on community supervision, but he later found work.   He made some payments, but admitted he was delinquent in paying costs, fees, the fine, and restitution.   Appellant also admitted he had only completed about eighty hours of community service hours.   The remainder of appellant's testimony and the remaining witnesses' testimony dealt with the new aggravated assault offense.   Appellant testified the mother of his children broke up with him so she could be with Edgar Salvador.   Appellant found out where Edgar lived and parked a few houses down the street from Edgar's house.   When he saw Edgar in the passenger seat of a car driven by Melissa Mendoza, appellant used his vehicle to block the street.   Appellant admitted he jumped out of his car, screamed at Edgar, and took off his shirt.   Appellant said Edgar got out of Mendoza's vehicle, stood a few feet from appellant, and stared at appellant.   As they were about to fight, Edgar ran to his house.   Appellant got back in his car and drove to the front of Edgar's house.   Appellant testified he pointed his middle finger at Edgar and then drove off.   Appellant denied that he had a gun or pointed a gun at Edgar.   Appellant admitted he went back to Edgar's house on October 3, 2010 and parked nearby.   The police came and arrested appellant on an outstanding warrant.

Melissa Mendoza testified that when appellant pulled his vehicle in the middle of the street, he almost hit her car.   Appellant immediately jumped out of his vehicle and began yelling at Edgar.   Mendoza told Edgar to get out of the car because she had her two children in the car and did not want to put them in jeopardy.   Edgar got out of her car and ran to his house, which was about two houses away from appellant's car.   According to Mendoza, Edgar did not stand in front of appellant and stare.   Mendoza testified she did not see appellant with a gun.

Edgar Salvador testified that on August 7, 2010, he and Mendoza were in her car when appellant used his vehicle to block the street in front of them.   Appellant got out of his car and starting yelling.   Appellant took off his shirt, then went to his car door and pulled something partially out.   Edgar testified he only saw a black handle in appellant's hands that looked like the handle of a gun.   Edgar got out of Mendoza's car and ran to his house.   Edgar told his father, who was in the driveway, to go in the house because appellant had a gun.   Edgar ran on the porch and stopped inside the front door.   He saw appellant drive his car to the front of the house and get out.   Edgar saw a gun on the roof of appellant's car.   Appellant pointed the gun at Edgar and said, “I shoot to kill.”   Appellant got back in his car, pointed the gun at Edgar while the window was partially down, and said, “I know where you work, I know where you live.”   Then, appellant drove off.

Melicio Salvador, Edgar's father, testified he was in his driveway getting something from his truck when he saw a car stop in the middle of the street blocking Mendoza's car.   A man jumped out of the vehicle, took off his shirt, and then he “went into his car once again.”   Melicio said his son got out of Mendoza's car and ran to the house.   His son told him to run because the man had a gun.   Melicio stayed where he was while his son ran to the house.   The man who took off his shirt got back in his vehicle and drove to the front of Melicio's house.   The man did not look at Melicio because he was looking at the front of the house where Edgar stood in the front door.   The man got out of his vehicle, then he got back in his car and pointed a gun toward Edgar and said, “I know where you work now, and I'm going to kill your fat ass.”   After uttering the threat, the man drove off.   Melicio testified the man's window was partly rolled down and he clearly saw a gun.

The trial court adjudicated appellant guilty of burglary of a habitation and assessed punishment at twelve years' imprisonment.

Applicable Law

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).

Discussion

In his sole point of error, appellant contends the trial court erred in failing to make a finding that he intentionally failed to pay costs and fees, thereby increasing his sentence.   The State responds that the trial court did not err in failing to make a specific finding that appellant intentionally failed to pay costs and fees.

The evidence presented showed appellant did not pay costs and fees as directed, did not complete community service hours as directed, and committed a new aggravated assault offense.   The trial court heard appellant's testimony that he was unemployed when placed on community supervision but he later had a job and made payments.   There was no explanation as to why appellant failed to make the required payments after obtaining employment.   The trial court also heard testimony from several witnesses that appellant threatened Edgar Salvador with a gun because he was upset that the mother of his children broke up with appellant to be with Edgar.   Although appellant denied he had a gun when he confronted Edgar, 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, Texas courts require a defendant to make a request for specific findings.   See King v. State, 649 S.W.2d 42, 46 (Tex.Crim.App.1983).   In the absence of such a request, the trial court's failure to make specific findings in the order revoking probation is not reversible error.  Id. Here, appellant did not request specific findings.   Further, the motion to adjudicate is included in the record, and the judgment recites the trial court found the allegations in the motion to adjudicate had been proven.

Because the evidence is sufficient to prove appellant violated at least one condition of his community supervision, the trial court did not abuse its discretion in revoking appellant's community supervision and adjudicating his guilt.   See Rickels, 202 S.W.3d at 763–64;  Sanchez, 603 S.W.2d at 871.   We overrule appellant's sole point of error.

We affirm the trial court's judgment adjudicating guilt.

KERRY P. FITZGERALD JUSTICE

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