In The
Court of Appeals
Ninth District of Texas at Beaumont
________________ NO. 09-23-00056-CR ________________
ELBERT JASON PIERCE, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 20-09-11437-CR ________________________________________________________________________
MEMORANDUM OPINION
Elbert Jason Pierce argues that a misunderstanding of the facts deprived him
of a fair hearing on the State’s motion to adjudicate his guilt and revoke his
community supervision, and thus deprived him of due process and due course of
law. Tex. Const. art. I, § 19. According to Pierce, this misunderstanding caused the
trial court to erroneously believe that he was on community supervision for
assaulting his mother in September 2020, when he was in fact on community
1 supervision for assaulting his mother’s domestic partner, a member of Pierce’s
household.1 Tex. Penal Code Ann. § 22.01(b)(2)(A); Tex. Fam. Code Ann. § 71.005.
When the State moved to revoke Pierce’s community supervision, Pierce’s May
2022 assault on his mother was one of the grounds alleged for revocation.
Finding no reversible error, we affirm the trial court’s judgment revoking
Pierce’s community supervision and sentencing him to the statutory maximum: ten
years in the Institutional Division of the Texas Department of Criminal Justice.
I. Background
Pierce was charged with assaulting his mother’s domestic partner in 2020.2
Pierce pleaded “guilty” to that charge and was placed on deferred adjudication
community supervision for four years. In 2022, the state alleged Pierce violated the
terms of his community supervision by drinking alcohol, by failing to submit to
several drug tests, and by assaulting his mother. He pleaded “true” to eight of the
grounds for revocation but “not true” to the two grounds that referenced assaulting
his mother. The State therefore moved to adjudicate Pierce’s guilt and revoke his
community supervision. Four witnesses testified at the revocation hearing; their
testimony is summarized below.
1 During cross-examination, however, Pierce testified that he was placed on probation for assaulting his mother. 2 Information in the record suggests that at that time, Pierce also assaulted his mother, but that that charge was dismissed as part of a plea bargain. 2 A. Testimony of Pierce’s Mother
Pierce’s mother, “Madeline Knowles,” testified that Pierce was angry and
intoxicated when, early one morning in May 2022, he was “banging” on her bedroom
door and demanding to use her cell phone.3 Approximately two hours later, Pierce
returned, seeking Knowles’ help in taping a sheet over a window because he had
destroyed the blinds. At that time, Pierce was “yelling and screaming and cussing,
cussing, cussing.” Pierce threw Knowles’ cell phone, breaking it, and then pushed
her into a bedroom door.
Knowles recalled a recent conversation that became heated when she told
Pierce that he could not live with her after his release, because she “wouldn’t go
through this anymore[,]” and he responded by calling her a crude name. Knowles
further testified that Pierce repeatedly tried to get her to recant her complaint that he
had pushed her, but she refused to do so.
B. Testimony of Elbert Jason Pierce
In his testimony at the revocation hearing, Pierce expressed his surprise at his
mother’s testimony because, according to Pierce, she had planned to complete an
3 We refer to Pierce’s mother by a pseudonym to conceal her identity. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process[.]”). See Smith v. State, No. 09-17-00081-CR, 2018 WL 1321410, at *1 n.1 (Tex. App.—Beaumont Mar. 14, 2018, no pet.) (mem op., not designated for publication). 3 affidavit of non-prosecution. Pierce also denied having pushed her, and further
sought to minimize the events of the night in question. Specifically, he denied
kicking in his mother’s bedroom door, but acknowledged that he did push it with his
foot to open it. Pierce also admitted that he broke his mother’s cell phone when he
threw it against a beam, that he “put a few holes in a couple of walls[,]” and that he
struck the coffee table against the floor.
In addition, Pierce testified that he was placed on community supervision for
assaulting his mother, and that he pleaded “guilty” to that charge only because he
thought he needed to do so to be eligible for deferred adjudication, which he
characterized as baseless, stating that he was “on probation for really no reason.”
Pierce also recounted his mental health history, recalling that many years
earlier, he took medication for depression, but was no longer doing so at the time of
the revocation hearing.
C. Testimony of Susana Ochoa
Deputy Ochoa, of the Montgomery County sheriff’s department, responded
to the call for service at Knowles’ residence in May 2022. When she arrived, she
heard “loud banging” coming from inside the house. Upon entering, Ochoa saw
Knowles sitting on the couch, a coffee table on its side, and holes in the walls.
Knowles appeared frightened.
4 Ochoa separated Pierce from Knowles to speak to each of them privately, and
eventually charged Pierce with assaulting his mother.
D. Testimony of Destiny King
King, a court liaison officer, authenticated the documentation reflecting
Pierce’s interactions with the probation department. Those records showed that
Pierce had not only used alcohol in violation of his probation but had failed to submit
to multiple scheduled drug tests. Because of Pierce’s failures to observe the
conditions of his probation, his probation officer recommended that his probation be
revoked.
II. Standard of Review
We review the trial court’s order revoking a defendant’s placement on
community supervision for abuse of discretion. Rickels v. State, 202 S.W.3d 759,
763 (Tex. Crim. App. 2006). The State’s burden of proof in a revocation proceeding
is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 874 (Tex.
Crim. App. 1993) (citation omitted). The State satisfies its burden when the greater
weight of credible evidence before the trial court creates a reasonable belief
demonstrating it is more probable than not that the defendant has violated a condition
of his community supervision. Rickels, 202 S.W.3d at 763-64; Joseph v. State, 3
S.W.3d 627, 640 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
5 III. Analysis
Pierce did not make the objection at his revocation hearing that he now makes
on appeal.
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In The
Court of Appeals
Ninth District of Texas at Beaumont
________________ NO. 09-23-00056-CR ________________
ELBERT JASON PIERCE, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 20-09-11437-CR ________________________________________________________________________
MEMORANDUM OPINION
Elbert Jason Pierce argues that a misunderstanding of the facts deprived him
of a fair hearing on the State’s motion to adjudicate his guilt and revoke his
community supervision, and thus deprived him of due process and due course of
law. Tex. Const. art. I, § 19. According to Pierce, this misunderstanding caused the
trial court to erroneously believe that he was on community supervision for
assaulting his mother in September 2020, when he was in fact on community
1 supervision for assaulting his mother’s domestic partner, a member of Pierce’s
household.1 Tex. Penal Code Ann. § 22.01(b)(2)(A); Tex. Fam. Code Ann. § 71.005.
When the State moved to revoke Pierce’s community supervision, Pierce’s May
2022 assault on his mother was one of the grounds alleged for revocation.
Finding no reversible error, we affirm the trial court’s judgment revoking
Pierce’s community supervision and sentencing him to the statutory maximum: ten
years in the Institutional Division of the Texas Department of Criminal Justice.
I. Background
Pierce was charged with assaulting his mother’s domestic partner in 2020.2
Pierce pleaded “guilty” to that charge and was placed on deferred adjudication
community supervision for four years. In 2022, the state alleged Pierce violated the
terms of his community supervision by drinking alcohol, by failing to submit to
several drug tests, and by assaulting his mother. He pleaded “true” to eight of the
grounds for revocation but “not true” to the two grounds that referenced assaulting
his mother. The State therefore moved to adjudicate Pierce’s guilt and revoke his
community supervision. Four witnesses testified at the revocation hearing; their
testimony is summarized below.
1 During cross-examination, however, Pierce testified that he was placed on probation for assaulting his mother. 2 Information in the record suggests that at that time, Pierce also assaulted his mother, but that that charge was dismissed as part of a plea bargain. 2 A. Testimony of Pierce’s Mother
Pierce’s mother, “Madeline Knowles,” testified that Pierce was angry and
intoxicated when, early one morning in May 2022, he was “banging” on her bedroom
door and demanding to use her cell phone.3 Approximately two hours later, Pierce
returned, seeking Knowles’ help in taping a sheet over a window because he had
destroyed the blinds. At that time, Pierce was “yelling and screaming and cussing,
cussing, cussing.” Pierce threw Knowles’ cell phone, breaking it, and then pushed
her into a bedroom door.
Knowles recalled a recent conversation that became heated when she told
Pierce that he could not live with her after his release, because she “wouldn’t go
through this anymore[,]” and he responded by calling her a crude name. Knowles
further testified that Pierce repeatedly tried to get her to recant her complaint that he
had pushed her, but she refused to do so.
B. Testimony of Elbert Jason Pierce
In his testimony at the revocation hearing, Pierce expressed his surprise at his
mother’s testimony because, according to Pierce, she had planned to complete an
3 We refer to Pierce’s mother by a pseudonym to conceal her identity. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process[.]”). See Smith v. State, No. 09-17-00081-CR, 2018 WL 1321410, at *1 n.1 (Tex. App.—Beaumont Mar. 14, 2018, no pet.) (mem op., not designated for publication). 3 affidavit of non-prosecution. Pierce also denied having pushed her, and further
sought to minimize the events of the night in question. Specifically, he denied
kicking in his mother’s bedroom door, but acknowledged that he did push it with his
foot to open it. Pierce also admitted that he broke his mother’s cell phone when he
threw it against a beam, that he “put a few holes in a couple of walls[,]” and that he
struck the coffee table against the floor.
In addition, Pierce testified that he was placed on community supervision for
assaulting his mother, and that he pleaded “guilty” to that charge only because he
thought he needed to do so to be eligible for deferred adjudication, which he
characterized as baseless, stating that he was “on probation for really no reason.”
Pierce also recounted his mental health history, recalling that many years
earlier, he took medication for depression, but was no longer doing so at the time of
the revocation hearing.
C. Testimony of Susana Ochoa
Deputy Ochoa, of the Montgomery County sheriff’s department, responded
to the call for service at Knowles’ residence in May 2022. When she arrived, she
heard “loud banging” coming from inside the house. Upon entering, Ochoa saw
Knowles sitting on the couch, a coffee table on its side, and holes in the walls.
Knowles appeared frightened.
4 Ochoa separated Pierce from Knowles to speak to each of them privately, and
eventually charged Pierce with assaulting his mother.
D. Testimony of Destiny King
King, a court liaison officer, authenticated the documentation reflecting
Pierce’s interactions with the probation department. Those records showed that
Pierce had not only used alcohol in violation of his probation but had failed to submit
to multiple scheduled drug tests. Because of Pierce’s failures to observe the
conditions of his probation, his probation officer recommended that his probation be
revoked.
II. Standard of Review
We review the trial court’s order revoking a defendant’s placement on
community supervision for abuse of discretion. Rickels v. State, 202 S.W.3d 759,
763 (Tex. Crim. App. 2006). The State’s burden of proof in a revocation proceeding
is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 874 (Tex.
Crim. App. 1993) (citation omitted). The State satisfies its burden when the greater
weight of credible evidence before the trial court creates a reasonable belief
demonstrating it is more probable than not that the defendant has violated a condition
of his community supervision. Rickels, 202 S.W.3d at 763-64; Joseph v. State, 3
S.W.3d 627, 640 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
5 III. Analysis
Pierce did not make the objection at his revocation hearing that he now makes
on appeal. Therefore, he may not raise his complaint on appeal unless he can show
that no complaint was necessary to preserve error. Tex. R. App. P. 33.1(a)(1)(A).
Although the record reflects that the trial court may have misunderstood the reason
underlying Pierce’s community supervision, no objection to such misunderstanding
was made at the hearing. See Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App.
2003) (negating the right to an error-free trial and explaining “[t]he rules that require
a timely and specific objection, motion, or complaint do not apply to two relatively
small categories of errors: violations of ‘rights which are waivable only’ and denials
of ‘absolute systemic requirements.’”). At trial, not such objection was made. The
Court of Criminal Appeals rejected the defendant’s argument, raised for the first
time on appeal, that this misunderstanding necessitated reversal. Id. at 896. We are
persuaded by the rationale of Aldrich and likewise reject Pierce’s analogous
argument.
We overrule Pierce’s sole appellate argument.
IV. Conclusion
Finding no error, we therefore affirm the trial court’s judgment sentencing
Pierce to ten years in the Institutional Division of the Texas Department of Criminal
Justice.
6 AFFIRMED.
JAY WRIGHT Justice
Submitted on December 8, 2023 Opinion Delivered February 21, 2024 Do Not Publish
Before Golemon, C.J., Horton and Wright, JJ.