AFFIRMED and Opinion Filed August 23, 2022
In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00105-CR
JEWEL DIAMOND MITCHELLTREE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 17-50318-422-F
MEMORANDUM OPINION Before Justices Osborne, Pedersen, III, and Reichek Opinion by Justice Osborne Appellant Jewel Diamond Mitchelltree appeals the trial court’s judgment
revoking his community supervision for the offense of possession of a controlled
substance. In two issues, appellant contends the trial court abused its discretion by
(1) revoking his community supervision because the trial court failed to consider
relevant facts and (2) sentencing him to a term of imprisonment instead of continuing
his community supervision. We affirm the trial court’s judgment. BACKGROUND
In May 2017, appellant was indicted for second-degree possession of a
controlled substance. In June 2017, appellant pleaded guilty to the offense in
exchange for deferred adjudication and three years’ community supervision.
In March 2018, the State moved to revoke appellant’s community supervision
or proceed to adjudication of guilt, alleging appellant had violated several conditions
of his community supervision. In July 2019, pursuant to a plea bargain, appellant
pleaded true to the allegations in the State’s motion, and the trial court adjudicated
appellant guilty for the offense of possession of a controlled substance, a second-
degree felony. In accordance with the agreement, the trial court sentenced appellant
to ten years’ confinement, probating the sentence for three years. In addition to the
previous terms of appellant’s community supervision, the trial court ordered
appellant to serve 30 days in the Kaufman County Jail.
In October 2020, the State filed a motion to revoke community supervision or
proceed to adjudication of guilt (Original Motion), alleging appellant had violated
conditions 1, 4, 11, 12, 14, 15, 22i, and 22l of his community supervision. The State
alleged that appellant had violated condition 1 by committing the offense of
“ASSAULT CLASS C.” In November 2020, the State filed a supplemental motion
(First Supplement), alleging that appellant had violated condition 1 of his
community supervision by committing the offense of “THEFT CLASS C.” In
December 2020, the State filed a second supplemental motion (Second Supplement),
–2– alleging that appellant had twice violated condition 2 of his community supervision
by being in possession of marijuana, per offense reports dated August 16, 2020, and
November 7, 2020.
In January 2021, the trial court held a revocation hearing. Appellant pleaded
“not true” to the State’s allegation in its Original Motion that he had violated
condition 1 by committing the offense of assault. But he stipulated as “true” the
State’s allegations that he had violated conditions 4, 11, 12, 14, 15, 22i, and 22l.
Appellant also stipulated as “true” the allegations in the State’s First Supplement
that he had violated condition 1 by committing the offense of theft, Class C, but he
pleaded “not true” to the allegations in the State’s Second Supplement that he had
violated condition 2 by being in possession of marijuana.
The State called five witnesses: Dana Covington, a probation officer in
Kaufman County; Officer Mark Moore and Officer Colin Simpson, officers with the
Terrell Police Department; Teresa Morrow, an asset-protection employee at
Walmart; and Officer Laramie Kennedy, an officer with the Forney Police
Department. After being admonished by the trial court, appellant testified on his own
behalf. During the hearing, the trial court took judicial notice of the contents of its
file without objection.
At the conclusion of the evidence and arguments of counsel, the trial court
found that the State had met its burden to prove appellant’s violation of the following
conditions:
–3– condition 1—by committing the offense of Class C theft on November 7, 2020, in Forney, Texas;
condition 4–failure to report as directed;
condition 11—failure to provide non-diluted, non-adulterated urine for testing for alcohol and/or controlled substance as directed;
condition 15—failure to perform community service as directed;
condition 22i—failure to attend and complete the Drug Offender Education Program; and
condition 22l—failure to attend and complete the Life Skills Program. The trial court signed a judgment revoking appellant’s community supervision and
sentencing appellant to five years’ imprisonment in the Texas Department of
Criminal Justice.
Appellant timely filed a motion for new trial and motion in arrest of judgment,
which the trial court denied that same date. This appeal followed.
ISSUE ONE: REVOKING COMMUNITY SUPERVISION
In his first issue, appellant argues that the trial court abused its discretion by
revoking appellant’s community supervision. Appellant argues that time remained
for him to complete his community-service hours and the required classes, and the
conditions did not specify a date by which he needed to complete his hours or the
courses.
We review a trial court’s order revoking probation for abuse of discretion.
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). For the trial court to
revoke probation, the State must prove by a preponderance of the evidence that “the
–4– defendant is the same individual as is reflected in the judgment and order of
probation[] and that the individual violated a term of probation as alleged in the
motion to revoke.” Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). In
this context, a “preponderance of the evidence” means “that greater weight of the
credible evidence which would create a reasonable belief that the defendant has
violated a condition of his probation.” Rickels, 202 S.W.3d at 764.
A single violation of a probation condition is sufficient to support a trial
court’s decision revoking probation. Render v. State, 2017 WL 1326055, at *2 (Tex.
App.—Dallas Apr. 11, 2017, no pet.) (mem. op., not designated for publication)
(citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980)).
Thus, to prevail on appeal, the defendant must successfully challenge all of the
findings that support the revocation order. See McCutcheon v. State,
No. 05-20-00701-CR, 2021 WL 4891772, at *1 (Tex. App.—Dallas Oct. 20, 2021,
no pet.) (mem. op., not designated for publication) (citing Silber v. State, 371 S.W.3d
605, 611 (Tex. App.—Houston [1st Dist.] 2012, no pet.)).
Here, the trial court found that the State met its burden to prove appellant’s
violation of conditions 1, 4, 11, 15, 22i, and 22l. On appeal, appellant challenges
only his violation of conditions 15 (failure to perform community service), 22i
(failure to complete the Drug Offender Education Program), and 22l (failure to
complete the Like Skills Program). Appellant, however, had pleaded true to all three
of these violations. Moreover, appellant does not challenge the trial court’s findings
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AFFIRMED and Opinion Filed August 23, 2022
In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00105-CR
JEWEL DIAMOND MITCHELLTREE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 17-50318-422-F
MEMORANDUM OPINION Before Justices Osborne, Pedersen, III, and Reichek Opinion by Justice Osborne Appellant Jewel Diamond Mitchelltree appeals the trial court’s judgment
revoking his community supervision for the offense of possession of a controlled
substance. In two issues, appellant contends the trial court abused its discretion by
(1) revoking his community supervision because the trial court failed to consider
relevant facts and (2) sentencing him to a term of imprisonment instead of continuing
his community supervision. We affirm the trial court’s judgment. BACKGROUND
In May 2017, appellant was indicted for second-degree possession of a
controlled substance. In June 2017, appellant pleaded guilty to the offense in
exchange for deferred adjudication and three years’ community supervision.
In March 2018, the State moved to revoke appellant’s community supervision
or proceed to adjudication of guilt, alleging appellant had violated several conditions
of his community supervision. In July 2019, pursuant to a plea bargain, appellant
pleaded true to the allegations in the State’s motion, and the trial court adjudicated
appellant guilty for the offense of possession of a controlled substance, a second-
degree felony. In accordance with the agreement, the trial court sentenced appellant
to ten years’ confinement, probating the sentence for three years. In addition to the
previous terms of appellant’s community supervision, the trial court ordered
appellant to serve 30 days in the Kaufman County Jail.
In October 2020, the State filed a motion to revoke community supervision or
proceed to adjudication of guilt (Original Motion), alleging appellant had violated
conditions 1, 4, 11, 12, 14, 15, 22i, and 22l of his community supervision. The State
alleged that appellant had violated condition 1 by committing the offense of
“ASSAULT CLASS C.” In November 2020, the State filed a supplemental motion
(First Supplement), alleging that appellant had violated condition 1 of his
community supervision by committing the offense of “THEFT CLASS C.” In
December 2020, the State filed a second supplemental motion (Second Supplement),
–2– alleging that appellant had twice violated condition 2 of his community supervision
by being in possession of marijuana, per offense reports dated August 16, 2020, and
November 7, 2020.
In January 2021, the trial court held a revocation hearing. Appellant pleaded
“not true” to the State’s allegation in its Original Motion that he had violated
condition 1 by committing the offense of assault. But he stipulated as “true” the
State’s allegations that he had violated conditions 4, 11, 12, 14, 15, 22i, and 22l.
Appellant also stipulated as “true” the allegations in the State’s First Supplement
that he had violated condition 1 by committing the offense of theft, Class C, but he
pleaded “not true” to the allegations in the State’s Second Supplement that he had
violated condition 2 by being in possession of marijuana.
The State called five witnesses: Dana Covington, a probation officer in
Kaufman County; Officer Mark Moore and Officer Colin Simpson, officers with the
Terrell Police Department; Teresa Morrow, an asset-protection employee at
Walmart; and Officer Laramie Kennedy, an officer with the Forney Police
Department. After being admonished by the trial court, appellant testified on his own
behalf. During the hearing, the trial court took judicial notice of the contents of its
file without objection.
At the conclusion of the evidence and arguments of counsel, the trial court
found that the State had met its burden to prove appellant’s violation of the following
conditions:
–3– condition 1—by committing the offense of Class C theft on November 7, 2020, in Forney, Texas;
condition 4–failure to report as directed;
condition 11—failure to provide non-diluted, non-adulterated urine for testing for alcohol and/or controlled substance as directed;
condition 15—failure to perform community service as directed;
condition 22i—failure to attend and complete the Drug Offender Education Program; and
condition 22l—failure to attend and complete the Life Skills Program. The trial court signed a judgment revoking appellant’s community supervision and
sentencing appellant to five years’ imprisonment in the Texas Department of
Criminal Justice.
Appellant timely filed a motion for new trial and motion in arrest of judgment,
which the trial court denied that same date. This appeal followed.
ISSUE ONE: REVOKING COMMUNITY SUPERVISION
In his first issue, appellant argues that the trial court abused its discretion by
revoking appellant’s community supervision. Appellant argues that time remained
for him to complete his community-service hours and the required classes, and the
conditions did not specify a date by which he needed to complete his hours or the
courses.
We review a trial court’s order revoking probation for abuse of discretion.
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). For the trial court to
revoke probation, the State must prove by a preponderance of the evidence that “the
–4– defendant is the same individual as is reflected in the judgment and order of
probation[] and that the individual violated a term of probation as alleged in the
motion to revoke.” Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). In
this context, a “preponderance of the evidence” means “that greater weight of the
credible evidence which would create a reasonable belief that the defendant has
violated a condition of his probation.” Rickels, 202 S.W.3d at 764.
A single violation of a probation condition is sufficient to support a trial
court’s decision revoking probation. Render v. State, 2017 WL 1326055, at *2 (Tex.
App.—Dallas Apr. 11, 2017, no pet.) (mem. op., not designated for publication)
(citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980)).
Thus, to prevail on appeal, the defendant must successfully challenge all of the
findings that support the revocation order. See McCutcheon v. State,
No. 05-20-00701-CR, 2021 WL 4891772, at *1 (Tex. App.—Dallas Oct. 20, 2021,
no pet.) (mem. op., not designated for publication) (citing Silber v. State, 371 S.W.3d
605, 611 (Tex. App.—Houston [1st Dist.] 2012, no pet.)).
Here, the trial court found that the State met its burden to prove appellant’s
violation of conditions 1, 4, 11, 15, 22i, and 22l. On appeal, appellant challenges
only his violation of conditions 15 (failure to perform community service), 22i
(failure to complete the Drug Offender Education Program), and 22l (failure to
complete the Like Skills Program). Appellant, however, had pleaded true to all three
of these violations. Moreover, appellant does not challenge the trial court’s findings
–5– that he violated conditions 1 (by committing the offense of Class C theft), 4 (by
failing to report), and 11 (by failing to provide a non-diluted, non-adulterated urine
sample for testing as directed), to which he had pleaded true.
Accordingly, because appellant has not challenged each violation supporting
the trial court’s decision to revoke community supervision, see McCutcheon, 2021
WL 4891772, at *1, we overrule appellant’s first issue.
ISSUE TWO: IMPOSING A TERM OF IMPRISONMENT
In his second issue, appellant argues that the trial court abused its discretion
by sentencing appellant to a term of imprisonment. He argues that one of the
objectives of the Penal Code is rehabilitation and that it was in the best interest of
society to continue appellant on probation. Appellant argues that the trial court did
not provide appellant with an opportunity to be a productive member of society,
contending that he has now recovered from the car-accident injuries that, he argues,
had prevented him from meeting the conditions of his community supervision and
from working.
To preserve error for appeal, the record must show appellant made a timely
request, objection, or motion. See TEX. R. APP. P. 33.1(a); Castaneda v. State, 135
S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). Appellant contends that he
raised his complaint in the trial court because his trial counsel requested that
appellant be continued on community supervision, but the trial court rejected that
request and sentenced appellant to five years’ imprisonment. Appellant argues that
–6– his trial counsel’s argument showed that he had an objection to the sentence imposed
by the trial court. We disagree.
Appellant’s request for community supervision at the hearing did not
sufficiently appraise the trial court of the alleged error he now raises on appeal. See
Render, 2017 WL 1326055, at *2. When the trial court pronounced his sentence,
appellant did not object to the sentence. Although appellant filed a motion for new
trial, he simply asserted that “[t]he verdict in this cause is contrary to the law and the
evidence” and that the “trial court has the discretion to grant a new trial in the interest
of justice.” He did not raise the complaint that he now raises on appeal. Accordingly,
because appellant failed to raise his second issue in the trial court, he did not preserve
this issue for our review. See TEX. R. APP. P. 33.1(a).
Even if appellant had preserved error, we would overrule his argument.
Rehabilitation is not the only objective of the Penal Code; deterrence and
punishment as necessary to prevent recurrence of criminal behavior are also
objectives. See TEX. PENAL CODE ANN. § 1.02(1)(A), (C); Render, 2017 WL
1326055, at *2. Consequently, the trial court did not abuse its discretion by
sentencing appellant to five years’ imprisonment, even if the chosen sentence
furthered one objective of the Penal Code more than another objective. See Render,
2017 WL 1326055, at *2.
–7– CONCLUSION
Having resolved both of appellant’s issues against him, we affirm the trial
court’s judgment.
210105f.u05 /Leslie Osborne// Do Not Publish LESLIE OSBORNE TEX. R. APP. P. 47 JUSTICE
–8– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JEWEL DIAMOND On Appeal from the 422nd Judicial MITCHELLTREE, Appellant District Court, Kaufman County, Texas No. 05-21-00105-CR V. Trial Court Cause No. 17-50318-422- F. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Osborne. Justices Pedersen, III and Reichek participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 23rd day of August, 2022.
–9–