Depew, Paul Leslie v. State

Opinion

AFFIRM; and Opinion Filed May 8, 2013.

S In The Court of Appeals Fifth District of Texas at Dallas

No. 05-12-00637-CR No. 05-12-00638-CR

PAUL LESLIE DEPEW, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause Nos. 401-82988-07, 401-80279-08

MEMORANDUM OPINION Before Justices Moseley, O'Neill, and Lewis Opinion by Justice Moseley Paul Leslie Depew pleaded guilty to two counts of theft and was sentenced two years’

imprisonment, which the trial court probated for two years while Depew was placed on

community supervision. After extending the term of his supervision, the trial court revoked

Depew’s supervision and sentenced him to two years’ incarceration. In two points of error,

Depew asserts that the trial court abused its discretion by adjudicating his guilt and revoking his

community supervision and that the trial court violated his due process rights. The background

and facts of the case are well known to the parties; thus, we do not recite them here. Because all

dispositive issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a),

47.4. We affirm the trial court’s judgment. Depew was sentenced on theft charges in August 2009. In March 2010, the State filed a

motion to revoke Depew’s community supervision; the trial court extended the term of

community supervision for an additional two years, until August 2013. After being notified that

Depew had been arrested for public intoxication, the trial court revised the terms of his

supervision in June 2011. In January 2012, the State filed a second motion to revoke community

supervision, alleging six violations of the terms of Depew’s supervision. Depew pleaded “not

true” to all six alleged violations; after a hearing, the trial court found four of them were “true”—

the trial court concluded Depew committed the offenses of public intoxication, false statement

for property or credit, and criminal mischief and he failed to complete a required anger

management course. 1 The trial court revoked Depew’s community supervision and sentenced

him to two years’ confinement.

In his first point of error, Depew argues the trial court abused its discretion by

adjudicating his guilt and revoking his community supervision because the State failed to

establish by a preponderance of the evidence that Depew committed the allegations stated in the

State’s motion to revoke. Specifically, Depew asserts the evidence does not support the finding

that Depew violated the terms of his supervision by committing the offenses of public

intoxication and false statement for property or credit.

We review a trial court’s decision to revoke community supervision for an abuse of

discretion. See Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012). The “trial court

has discretion to revoke community supervision when a preponderance of the evidence supports

one of the State’s allegations that the defendant violated a condition of his community

supervision.” Id. The State only is required to show a single violation to support the trial court’s

1 The State concedes the evidence was not sufficient to support revocation for Depew’s alleged failure to complete a required anger management course; therefore, we do not consider this ground for revocation in our analysis.

–2– order revoking community supervision. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App.

2009). We review the evidence in the light most favorable to the trial court’s ruling. Lee v.

State, 952 S.W.2d 894, 897 (Tex. App.—Dallas 1997, no pet.) (citing Garrett v. State, 619

S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981)).

One of the conditions of Depew’s community supervision was that he “[c]omit no

offense against the laws of this State or any State, or the United States.”

At the revocation hearing, the State presented evidence showing Depew pleaded “no

contest” to the offense of public intoxication and the trial court for that offense concluded “that

the evidence substantiates [Depew’s] guilt beyond a reasonable doubt.” Additionally, at the

revocation hearing, Depew’s lawyer conceded that Depew received a Class C citation for public

intoxication and the offense was a misdemeanor that violated the supervision requirement that

Depew commit no offense. Based on the evidence showing Depew’s plea of no contest and the

trial court’s conclusion that the evidence substantiated Depew’s guilt beyond a reasonable doubt,

the court did not abuse its discretion by concluding a preponderance of the evidence showed

Depew committed the offense of public intoxication and by revoking his community supervision

on this basis. 2 See Leonard, 385 S.W.3d at 576. We overrule Depew’s first point of error.

In his second point of error, Depew argues the trial court violated his due process rights

by finding the State’s allegation that he committed the offense of public intoxication to be true. 3

Although Depew filed a motion for new trial with the trial court, he never presented a due-

process complaint to the trial court. Therefore, he has not preserved the issue for review. See

2 Because the State only needed to show a single violation to support the trial court’s judgment revoking community supervision, see Smith, 286 S.W.3d at 342, we need not consider whether the evidence supports the finding that Depew violated the terms of his supervision by committing the offenses of making a false statement for property or credit or criminal mischief, see TEX. R. APP. P. 47.4. 3 In his second point of error, Depew also argues the trial court violated his due process rights by finding the State’s allegation that he committed the offense of criminal mischief to be true. However, because we conclude the trial court did not err by revoking Depew’s community supervision for the offense of public intoxication and because the State only needed to prove a single offense, we do not consider Depew’s arguments with respect to criminal mischief in his second point of error.

–3– TEX. R. APP. P. 33.1(a). See also Rogers v. State, 604 S.W.2d 248, 263 (Tex. Crim. App. 1982)

(Opinion on State’s Second Motion for Rehearing); Ferrell v. State, No. 03-97-00360-CR, 1998

WL 67151 (Tex. App.—Austin Feb. 20, 1998, pet. ref’d).

Having resolved Depew’s two points of error, we affirm the trial court’s judgment.

/Jim Moseley/ JIM MOSELEY JUSTICE Do Not Publish TEX. R. APP. P. 47

120637F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

PAUL LESLIE DEPEW, Appellant On Appeal from the 401st Judicial District Court, Collin County, Texas No. 05-12-00637-CR V. Trial Court Cause No. 401-80279-08. Opinion delivered by Justice Moseley. THE STATE OF TEXAS, Appellee Justices O'Neill and Lewis participating.

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

Judgment entered May 8, 2013.

/Jim Moseley/ JIM MOSELEY JUSTICE

–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

PAUL LESLIE DEPEW, Appellant On Appeal from the 401st Judicial District Court, Collin County, Texas No. 05-12-00638-CR V. Trial Court Cause No. 401-82988-07. Opinion delivered by Justice Moseley. THE STATE OF TEXAS, Appellee Justices O'Neill and Lewis participating.

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

–6–