Christopher Dean Little v. State

• Court: Court of Appeals of Texas
• Decided: July 28, 2005
• Docket: 13-04-00245-CR
• Status: Published

Opinion

                              NUMBER 13-04-245-CR

   NUMBER 13-04-246-CR    

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

CHRISTOPHER DEAN LITTLE,                                                      Appellant,

v.

THE STATE OF TEXAS,                                                                 Appellee.

On appeal from the 377th District Court of Victoria County, Texas.

MEMORANDUM OPINION

                          Before Justices Yañez, Castillo, and Garza

                            Memorandum Opinion by Justice Garza                      

Appellant, Christopher Dean Little, was charged in two separate indictments with unauthorized use of a vehicle, see Tex. Pen. Code Ann. ' 31.07 (Vernon 2003), and unauthorized  possession of a controlled substance, see Tex. Health & Safety Code Ann. ' 481.115(a), (c) (Vernon 2003).^[1]  Prior to trial on the two charges, appellant entered into a plea bargain agreement with the State.  Appellant pled guilty to both charges and was sentenced to two years= imprisonment for the unauthorized use of a vehicle charge and five years= imprisonment for the unauthorized possession of a controlled substance charge.  The sentences were suspended and appellant was placed on community supervision.  The State subsequently filed a motion to revoke community supervision.  At the hearing on the motion, appellant pled true to five of the violations alleged by the State.  The trial court granted the motion and sentenced appellant to the originally imposed sentences.^[2]

Appellant=s counsel has filed an Anders brief with this Court, in which he states that he has reviewed the record and concludes that only four possible issues exist for appeal.  See Anders v. California, 386 U.S. 738, 744 (1967).  Counsel=s brief further concludes that these issues lack merit and any appeal in this case would be frivolous.  See id.  The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal.  See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).  In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court=s judgment.  Counsel certifies that he has served a copy of his brief on appellant and informed appellant of his right to file a pro se brief.  More than thirty days have passed and no pro se brief has been filed.  See Tex. R. App. P. 38.6.

As a general rule, an order revoking community supervision is subject to appeal.  Tex. Code Crim. Proc. Ann. art. 42.12 ' 23(b) (Vernon Supp. 2004-05).  Appellate review of an order revoking community supervision is limited to whether the trial court abused its discretion.  See Forrest v. State, 805 S.W.2d 462, 463-64 (Tex. Crim. App. 1991) (en banc); Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979).  An order revoking supervision must be supported by a preponderance of the evidence.  Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974).  The State bears the burden of proving the allegations upon which the motion to revoke supervision is premised.  Id.  One ground for revocation, if proven, is sufficient to revoke a defendant=s probation.  Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).  The reviewing court must view the evidence presented at the revocation hearing in the light most favorable to the court=s decision.  Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Liggett v. State, 998 S.W.2d 733, 736 (Tex. App.BBeaumont 1999, no pet.).

I.  Sufficiency of Evidence

Appellant=s counsel suggests that one of the possible issues for appeal is that the evidence produced at the revocation hearing was insufficient to support the revocation.  Appellant pled Atrue@ to five of the seven alleged violations of community supervision.  A plea of Atrue@ to alleged violations of community supervision is sufficient to revoke community supervision.  Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979);  Moses, 590 S.W.2d at 470; see also Guajardo v. State, 24 S.W.3d 423, 427 (Tex. App.BCorpus Christi 2000, pet. granted).  The trial court therefore had sufficient evidence upon which the revocation was based.  Accordingly, we agree with counsel=s conclusion that this issue is without merit.

II.  Punishment Hearing  

The second issue identified by counsel is based on the trial court=s failure to hold a separate hearing on punishment.  Without citing to authority, counsel suggests that when a court revokes community supervision, it may impose the sentence that was originally assessed at the prior punishment hearing.  However, counsel points out that, the trial court may not mechanically impose a previously announced sentence without considering evidence adduced at the revocation hearing.  Counsel asserts that to do so would deny due process at the revocation proceeding by (1) excluding evidence relevant to punishment, (2) precluding the judge presiding at the revocation hearing from considering the full range of punishment prescribed by law, and (3) depriving the defendant of a fair and impartial tribunal at the revocation punishment hearing.  See Howard v. State, 830 S.W.2d 785, 787-88 (Tex. App.BSan Antonio 1992, pet. ref=d.); Jefferson v. State, 803 S.W.2d 470, 472 (Tex. App.BDallas 1991, pet. ref=d.). 

AIf community supervision is revoked after a hearing under section 21 of this article, the judge may proceed to dispose of the case as if there had been no community supervision . . . .@  Tex. Code Crim. Proc. Ann. art. 42.12, ' 23(a).  The record reflects that after the trial court revoked appellant=s community supervision, the court did not conduct a formal punishment hearing before pronouncing the sentence.  Appellant, however, neither objected at the close of the revocation hearing nor filed a motion for new trial, complaining of this alleged error.^[3]  If a defendant fails to inform the trial judge of the potential error through a Atimely request, objection, or motion,@ there is no opportunity for correction at the trial level.  See Tex. R. App. P. 33.1.  It is for this reason that defendants must object to alleged errors on the record before those errors may be appealed.  Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001) (en banc); see also Liggett, 998 S.W.2d at 736 (holding that even if trial court erred in failing to conduct a formal punishment hearing or provide a defendant opportunity to request one prior to pronouncing sentence following community supervision revocation hearing, any error was not preserved for appellate review, because defendant neither objected at close of the revocation hearing nor filed a motion for new trial).  Because appellant failed to object or file a motion for new trial complaining of this alleged error, we hold appellant has waived review of his complaint.

III.  Variance

The third issue identified by counsel questions whether an impermissible variance between the motion to revoke community supervision and the evidence adduced at the hearing rendered the revocation invalid.  Apparently, a question was raised as to whether appellant had moved to Hico, Texas; Hamilton, Texas; or Stephenville, Texas, in violation of two of the terms of his community supervision.      

An allegation in a motion to revoke probation need not meet the particulars of an incident or complaint.  Mitchell v. State, 608 S.W.2d 226, 228 (Tex. Crim. App. 1980).  It is sufficient if it gives the person notice to enable him to prepare a defense.  Labelle v. State, 720 S.W.2d 101, 108 (Tex. Crim. App. 1986).  Both the State=s evidence and appellant=s admission established that appellant left Victoria County without obtaining permission and thereby violated the terms of his community supervision.  Any variance between the motion and the proof is so slight that it fails to present a meritorious issue as to whether appellant had fair notice of the issues he would be required to defend at a hearing on the State=s motion.  See Labelle, 720 S.W.2d at 108.   

IV.  Voluntariness of Plea

Finally, counsel suggests that appellant=s plea of guilty in the underlying conviction may not have been entered knowingly, intelligently, and voluntarily.  However, appellant=s counsel concedes that this Court has no jurisdiction to consider the voluntariness of appellant=s original plea.  See Alvarez v. State, 50 S.W.3d 566, 567 (Tex. App.BSan Antonio 2001, pet. ref=d).  We agree.  Appellant should have raised issues related to his original plea of guilty within the proper time to file an appeal following the proceeding in which the entry of his plea of guilty took place.  He cannot now raise issues concerning that proceeding.  See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). 

V.  Independent Review of Record

 Upon receiving a Afrivolous appeal@ brief, appellate courts must conduct a full examination of all the proceedings to decide whether the case is wholly frivolous.  Penson v. Ohio, 488 U.S. 75, 80 (1988).  Having reviewed the entire record, we conclude that there are no reversible grounds of error.

VI.  Motion to Withdraw

In accordance with Anders, appellant=s attorney has asked permission to withdraw as counsel for appellant.  See Anders, 386 U.S. at 744.  We grant his motion to withdraw.  We further order counsel to notify appellant of the disposition of this appeal and the availability of discretionary review.  See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).     

 The judgment of the trial court is affirmed.                       

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.                                             

Tex.R.App.P. 47.2(b)

Memorandum Opinion delivered

and filed this the 28th day of July, 2005.

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^[1] Appellant was charged by indictment for unauthorized use of a vehicle on September 4, 2001, in cause number 13-04-00246-CR.  He was subsequently charged by indictment for unlawful possession of a controlled substance on October 9, 2001, in cause number 13-04-00245-CR.    

^[2] The court modified appellant=s sentence for unauthorized use of a vehicle from two years to twenty months with 296 days credit.  The court imposed the original five year sentence for the unauthorized possession of a controlled substance charge with 239 days credit. 

^[3] The record reflects that at the close of the revocation hearing, the trial court provided appellant with an opportunity to object by asking appellant=s counsel if there was any legal reason why the court should not pronounce and impose the sentence.  Appellant=s counsel responded that there was not.