Earl Wayne Newton v. State

• Court: Court of Appeals of Texas
• Decided: June 13, 2002
• Docket: 13-01-00321-CR
• Status: Published

Opinion

                                   NUMBER 13-01-321-CR

                             COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                              CORPUS CHRISTI

EARL WAYNE NEWTON,                                                   Appellant,

                                                v.

THE STATE OF TEXAS,                                                      Appellee.

                      On appeal from the 197th District Court

                              of Cameron County, Texas.

                                 O P I N I O N

                Before Justices Dorsey, Hinojosa, and Rodriguez

                                Opinion by Justice Dorsey

This is an appeal of a revocation of community supervision in which appellant, Earl Wayne Newton, was sentenced to ten years confinement.  We affirm.

                                               I. Background

Appellant pleaded guilty to the offense of delivery of a controlled substance and was placed on ten years community supervision.  The amended motion to revoke community supervision alleged, in part, that appellant (1) failed to report to his probation officer from May, 1999 through December, 2000, and (2) failed to inform his probation officer that he was arrested in July, 2000.  After a hearing the trial court found these alleged violations true.  The trial court revoked the community supervision and sentenced appellant to ten years in prison.

                                                    Analysis

By his first issue appellant complains that the trial court violated his due process rights by imposing sentence without first holding a revocation punishment hearing.  The law applicable to this issue is found in article 42.12, ' 23(a) of the Texas Code of Criminal Procedure, which provides in part:  "[i]f 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) (Vernon Supp. 2002).  We hold that this issue is not preserved for our review and that even if the issue was preserved, we do not believe that article 42.12, section 23(a) is mandatory. 

The record reflects that after the trial court revoked appellant=s community supervision the court did not conduct a formal punishment hearing before pronouncing sentence.  Appellant, however, neither objected at the close of the revocation hearing nor filed a motion for new trial, complaining of this alleged error.  If a defendant fails to inform the trial judge of the potential error through a "timely request, objection, or motion," Tex. R. App. P. 33.1, there is no such opportunity for correction at the trial level.  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).  See Dunn v. State, 819 S.W.2d 510, 524‑25 (Tex. Crim. App. 1991) (discussing the importance of specific objections as required under Rule 52, predecessor to Rule 33.1); see also Liggett v. State, 998 S.W.2d 733, 736 (Tex. App.‑‑Beaumont 1999, no pet.) (holding even if trial court erred in failing to conduct a formal punishment hearing or provide defendant opportunity to request one prior to pronouncing sentence following community supervision revocation hearing, any error was not preserved for appellate review, when 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.

Further article 42.12, section 23(a) states that if community supervision is revoked after a hearing the Ajudge 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) (Vernon Supp. 2002) (emphasis added).  The statute does not say that the trial court must or shall hold a punishment hearing.  Moreover we note that the trial court did not impose a greater sentence than originally assessed.  Weed v. State, 891 S.W.2d 22, 24 (Tex. App.BFort Worth 1995, no pet.) (upon revocation of community supervision trial court may not impose greater punishment than was originally assessed).  We overrule issue one.

By his fourth issue appellant complains that he failed to report to his probation officer because he was under duress.  Appellate review of an order revoking community supervision is limited to whether the trial court abused its discretion.  Forrest v. State, 805 S.W.2d 462, 464 (Tex. Crim. App. 1991).  A[A]n order revoking probation must be supported by a preponderance of the evidence; in other words, that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation.@  Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974).  The State is required to sustain the burden of proving the allegations of the motion to revoke probation.  Id.  One ground for revocation, if proven, is sufficient to revoke a defendant's community supervision.  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.  Liggett, 998 S.W.2d at 736 (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981)).

Melissa Resendez, appellant=s probation officer, testified that she had supervised appellant since October, 1998 and that he was supposed to report to her once a week for the first year.  During the first year he stopped reporting on April 5, 1999.  Her testimony was that appellant had failed to report from May, 1999, through December, 2000.  She also testified that appellant did not report to her that he was arrested in July, 2000.  She said that appellant=s failure to report to her as well as his failure to report the arrest violated the terms and conditions of his community supervision. 

On cross-examination Resendez testified that in October, 1998, appellant reported to her that two men took him from his home by force.  After the encounter appellant was thinking of relocating because he feared for his life and for his family=s safety.  Resendez did not testify that she had excused appellant from reporting because he was in fear of his life.

We conclude that the greater weight of the credible evidence creates a reasonable belief that appellant had failed to report to his probation officer and that he failed to tell her about his arrest.  Accordingly he has violated the terms and conditions of his community supervision as alleged in the amended motion to revoke.  We hold that the trial court did not abuse its discretion by revoking appellant=s community supervision.

Due to our disposition of the above issues we need not address appellant=s remaining issues.  Tex. R. App. P. 47.1.

We AFFIRM the trial court=s revocation order.

__________________________     

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 13th day of June, 2002.