Frank Ivy v. State

• Court: Court of Appeals of Texas
• Decided: June 26, 1991
• Docket: 03-90-00085-CR
• Status: Published

Opinion

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



NO. 3-90-085-CR

FRANK IVY,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 93,880, HONORABLE BOB JONES, JUDGE

This is an appeal from an order revoking probation. On February 24, 1989, the appellant entered a plea of guilty before the court to the indictment charging him with the possession of a controlled substance, namely, cocaine in an amount less than twenty-eight (28) grams. The court assessed appellant's punishment at ten (10) years' imprisonment. On May 22, 1989, the court, pursuant to a motion, granted the appellant "shock probation," suspending the execution of the sentence and releasing the appellant subject to certain probationary conditions. On December 20, 1989, the State filed a motion to revoke probation alleging that appellant had violated the conditions of probation in that (1) he failed to avoid injurious or vicious habits including the use of narcotic or habit forming drugs and alcoholic beverages based on his submission of urine specimens testing positive for cocaine on July 11, 1989, August 2, 1989, August 23, 1989, September 6, 1989, September 15, 1989, and October 16, 1989, and that (2) he had not paid probation supervision fees and was delinquent in the amount of $40.00.

At a hearing on this motion on February 8, 1990, the trial court did not hear evidence, but amended the conditions of probation and continued the appellant on probation. Among the amended conditions was the requirement that appellant "be placed in the Stratford House Program at Austin Rehabilitation Center for a period of time not to exceed one (1) year and cooperate with all rules and regulations while you are a patient there . . . ."

On March 15, 1990, the State filed a second motion to revoke probation alleging that appellant violated his probationary conditions in that:  (1) he "has failed to be placed in the Stratford House Program at the Austin Rehabilitation Center for a period not to exceed one year"; and that (2) he "failed to participate and cooperate fully in therapy sessions while in the Stratford House Program at the Austin Rehabilitation Center."

A hearing on the second motion was held on March 15, 1990. John Vasquez, an intern in the Adult Probation Office, testified that he was present in court when appellant's probationary conditions were amended and that the trial court twice explained to the appellant the amended conditions including placement in the Stratford House Program. Vasquez related that thereafter, when the appellant refused to sign his probation papers, Lalo Guiterrez, "the Court Officer," explained the Stratford House Program to the appellant three times. Linda Phillips, a probation officer, testified that she went to the jail on February 27, 1990, to obtain appellant's release and to take him to a detoxification unit to begin the Stratford House Program. After explaining her purpose to the appellant, Phillips related that the appellant refused the Stratford House Program, and told her that she was "not taking him to treatment." Phillips left the appellant in jail.

At the conclusion of the hearing and after the argument of counsel, the trial court again offered the appellant another opportunity to participate in the Stratford House Program. Appellant refused. The trial court then stated: "The court, at this time, finds you have violated the terms and conditions of probation, as such your probation is revoked." The formal written judgment reflects that the court revoked probation because the appellant failed to avoid injurious and vicious habits by submitting urine specimens positive for cocaine and by failing to pay probation supervisory fees.

Appellant argues on appeal that the trial court abused its discretion in revoking his probation as there was no evidence offered to support the recitations in the judgment. The State argues that the evidence is sufficient but that "gross clerical errors in the judgment require correction to properly reflect grounds for revocation." The State contends that the clerk preparing the judgment obviously was looking at the first motion to revoke rather than the second motion to revoke and the hearing thereon. The State urges this Court to make the necessary reformation.

This Court has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so, and to make any appropriate order as the law and the nature of the case may require. See Tex. R. App. P. Ann. 80(b) and (c) (Pamph. 1991). Appellate courts have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc when the evidence necessary to correct the judgment appears in the record. Rivera v. State, 716 S.W.2d 68, 71 (Tex. App. 1986, pet ref'd); Harris v. State, 670 S.W.2d 284, 285 (Tex. App. 1983, no pet.). And "there is authority that there is a mandatory duty to do this." Waters v. State, 127 S.W.2d 910, 910 (Tex. Cr. App. 1939).

Appellate courts have frequently reformed judgments to correct improper recitations or omissions when the necessary data are available. See, e.g., Easterling v. State, 710 S.W.2d 569, 582 (Tex. Cr. App.) cert. denied, 479 U.S. 848 (1986) (reformed to delete affirmative finding of use of deadly weapon); Banks v. State, 708 S.W.2d 460, 462 (Tex. Cr. App. 1986) (cumulated sentences); Tamez v. State, 620 S.W.2d 586, 590 (Tex. Cr. App. 1981) (reinstated fine); Harris v. State, 565 S.W.2d 66, 70 (Tex. Cr. App. 1978) (reinstated punishment of fifteen years assessed by the jury rather than ten years reflected in original judgment); Joles v. State, 563 S.W.2d 619, 622 (Tex. Cr. App. 1978) (reformed to reflect the proper nature of offense on which conviction was based); Garza v. State, 705 S.W.2d 818, 820 (Tex. App. 1986, no pet.) (inserted habitual offender findings).

Appellate courts have also reformed judgments in revocation of probation cases where necessary data were available. See, e.g., Mazloum v. State, 772 S.W.2d 131, 132 (Tex. Cr. App. 1989); Brewer v. State, 572 S.W.2d 719, 723 (Tex. Cr. App. 1978); Cleland v. State, 572 S.W.2d 673, 675-76 (Tex. Cr. App. 1978); Lujan v. State, 664 S.W.2d 737, 739 (Tex. App. 1983, no pet.).

In Mazloum, the court held that a written order of revocation of probation that stated an invalid reason for revocation could be reformed on appeal to reflect the valid reason found by the court but not mentioned in the order. In Boiles v. State, 662 S.W.2d 170, 173 (Tex. App. 1983, no pet.), this Court noted that a written order revoking probation controls over an oral pronouncement of the trial judge, but held that error in judgments and orders may be reformed and corrected on appeal if the reviewing court has the necessary data and evidence before it to do so. There, the Court found no variance between the revocation motion, the proof, and the trial court's rather general oral finding, while the written judgment had no support in pleading or evidence. And in Bell v. State, 774 S.W.2d 371, 378 (Tex. App. 1989, pet. ref'd), this Court reformed the judgment of revocation to delete reference to murder as a basis for revocation when such basis was not supported by the evidence.

In the instant case, the written judgment reflects that the bases of the revocation were the same as the two probationary violations alleged in the first motion to revoke probation on which no hearing was conducted. Revocation followed a hearing on the second motion to revoke in which the aforesaid allegations were not repeated. There were no pleadings or proof to support the recitations in the judgment. Hence, the judgment reflects invalid reasons for the revocation of probation. This was an obvious clerical error, ⁽¹⁾ not an error of judicial reasoning. See Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Cr. App. 1988); Curry v. State, 720 S.W.2d 261, 263 (Tex. App. 1986, pet. ref'd).

The second motion to revoke probation contained two counts. At the hearing thereon, the State offered evidence only as to the first count which alleged, in effect, that the appellant had refused to be placed in the Stratford House Program for treatment. ⁽²⁾ This evidence was undisputed. At the conclusion of the hearing, the trial court, in its rather general oral statement, found a violation of probationary conditions and ordered revocation. No clarification of the court's oral order was sought, and no request was made for findings of fact or conclusions of law. Proof of any one alleged violation of the terms of probation is sufficient to support revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Cr. App. 1980).

The intention of the trial court to revoke probation and the basis for the revocation is clear from the record before us. We have the same information for reformation which would be available to the trial court upon reversal of the conviction and remand of the cause. Reformation here achieves a more prompt and just result. See Lujan, 664 S.W.2d at 739. We reform the judgment to reflect the basis to be appellant's refusal of the appellant to be placed in the Stratford House Program for treatment as alleged in the first count of the second motion to revoke probation. Appellant's point of error is overruled.

Our action today constitutes no seal of approval for the practices and procedure utilized in this cause as indicated by the record. Careful attention to detail can avoid many unnecessary appeals.

As reformed, the judgment is affirmed.

John F. Onion, Jr., Justice

[Before Justices Powers, Aboussie and Onion^*]

Reformed and, as Reformed, Affirmed

Filed: June 26, 1991

[Do Not Publish]

^* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003 (1988).

1.   It is recognized in Texas that judgments in criminal cases, unlike those in civil cases, are generally prepared by clerks or other court personnel, and are not normally submitted to the parties for approval as to form. See Asberry v. State, No. 05-90-00025-CR, Tex. App.-- Dallas, May 2, 1991 (not yet reported).

2.   No evidence was offered as to the second count alleging that appellant failed to participate in the therapy sessions "while in the Stratford House Program." Since the evidence showed that appellant never entered the program, it is understandable that the State did not seek to prove the second count.