JESUS SANDOVAL v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

JESUS SANDOVAL, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–11–00771–CR

Decided: June 21, 2012

Before Justices FitzGerald, Murphy, and Fillmore

MEMORANDUM OPINION

Opinion By Justice FitzGerald

In this case, Jesus Sandoval appeals the revocation of his community supervision.   In a single point of error, appellant contends the trial court abused its discretion by revoking his community supervision five days after approving an order modifying community supervision.   We affirm the trial court's judgment revoking community supervision.   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 felony driving while intoxicated (DWI) in 2006.   See Tex. Penal Code Ann. §§ 49.04(a), 49.09(b)(2) (West 2011).   The trial court assessed punishment at ten years' imprisonment, probated for ten years, and a $800 fine.   The trial court issued orders modifying the conditions of appellant's community supervision on November 18, 2008, January 22, 2009, and May 5, 2011.   The November 18, 2008 order modifying the conditions of community supervision provided, in part:

“Effective immediately and through term of Supervision do not operate a motor vehicle unless it is equipped with a Deep Lung Breath Analysis Mechanism with voice tone feature, approved by the Texas Department of Public Safety, paying all costs of the Ignition Interlock System.”

Appellant's signature appears on this order.   On May 27, 2011, the State filed a motion to revoke, alleging in part that appellant violated condition (u) by driving a motor vehicle without an interlock device.   The record contains a signed order dated June 8, 2011 modifying the conditions of community supervision with the word “void” written across its face.   On June 13, 2011, the trial court held a hearing on the motion to revoke.   Appellant pleaded true and signed a judicial confession admitting the violation of condition (u).   The trial court found the allegations in the motion, including condition (u), true, revoked appellant's community supervision, and assessed punishment at five years' imprisonment.

Appellant contends that because the trial court approved a modification order on June 8, 2011, and the probation department voided that modification order only after appellant's community supervision was revoked, the trial court abused its discretion by revoking community supervision on June 13, 2011 without showing any violation of the conditions in that modification order.   The State responds that because appellant failed to object in the trial court, he has not preserved the issue for appellate review.

To the extent appellant makes a due process complaint, he has failed to preserve the issue for appellate review.   Appellant did not complain about the revocation of his community supervision in the trial court.   See Tex.R.App. P. 33.1(a)(1)(A) (requiring timely and specific request, objection, or motion to trial court as prerequisite to presenting appellate complaint);  Rogers v. State, 640 S.W.2d 248, 263–64 (Tex.Crim.App.1982) (op. on State's 2nd reh'g) (appellant must show he made some type of due process objection at time probation was actually revoked or at time sentence imposed).   Although appellant filed a motion for new trial, he alleged the verdict was “contrary to the law and evidence.”

To the extent appellant argues the evidence was insufficient to show he violated a condition in the June 8, 2011 modification order, we overrule his complaint.   The record shows the June 8, 2011 modification order added two new conditions of community supervision:  a condition (y) required appellant to submit to detention for thirty days, and a condition (z) prohibited him from driving a motor vehicle without a valid driver license or current liability insurance.   Neither condition was at issue during the probation revocation hearing and is for all purposes herein irrelevant.   During the revocation hearing, appellant pleaded true to violating his community supervision by driving a motor vehicle without the interlock device, as set out in condition (u), a condition imposed on November 18, 2008.   A plea of true, standing alone, is sufficient to support revocation of community supervision.   See Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. [Panel Op.] 1979).   Moreover, the record shows the trial court revoked appellant's community supervision based upon condition (u) and not upon either condition (y) or condition (z).  We overrule appellant's sole point of error.

We affirm the trial court's judgment revoking community supervision.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

JESUS SANDOVAL, Appellant

No. 05–11–00771–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F06–36982–W).

Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered June 21, 2012.

/Kerry P. FitzGerald/

KERRY P. FITZGERALD

JUSTICE

KERRY P. FITZGERALD JUSTICE

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