Opinion issued December 5, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00672-CR ——————————— JOSEPH HASKINS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court Brazoria County, Texas Trial Court Case No. 80889-CR
MEMORANDUM OPINION
Appellant, Joseph Haskins, pleaded guilty to the second-degree felony offense
of burglary of a habitation.1 The trial court deferred adjudication of appellant’s guilt
1 See TEX. PENAL CODE ANN. § 30.02(a)(1). and placed him on community supervision for four years. The State subsequently
filed two motions to adjudicate guilt, arguing that appellant had violated multiple
conditions of his community supervision. At a hearing, the trial court found that
appellant had violated the community supervision conditions. The trial court
revoked appellant’s community supervision, found appellant guilty of the charged
offense of burglary, and assessed his punishment at twelve years’ confinement. In
his sole issue, appellant contends that the trial court abused its discretion by revoking
his community supervision. The State requests that we modify the judgment of the
trial court to reflect that the trial court found all of the allegations in the amended
motion to adjudicate guilt to be true.
We modify the judgment of the trial court and affirm as modified.
Background
In February 2017, a Brazoria County grand jury indicted appellant for the
offense of burglary of a habitation, alleging that appellant had entered a habitation
without the effective consent of the owner and with the intent to commit theft. In
April 2017, appellant pleaded guilty to this offense. The trial court entered an order
of deferred adjudication and placed appellant on community supervision for four
years. The trial court imposed multiple conditions on appellant during the period of
community supervision, including:
• Commit no offense against the laws of Texas or any other state;
2 • Avoid “injurious or vicious conduct” and “totally abstain” from the consumption of alcohol or the illegal use of controlled substances; • Pay a monthly supervision fee, as well as a Crime Stoppers fee, a $500 fine, and $318 in court costs; • Submit to random drug and alcohol testing; • Complete 120 hours of community service; • Appear for a review hearing before the trial court on October 13, 2017.
Appellant acknowledged receiving a copy of these conditions.
On October 23, 2017, the State filed a motion to adjudicate guilt. In this
motion, the State alleged that appellant violated the conditions of his community
supervision relating to (1) avoiding injurious or vicious conduct and abstaining from
the use of alcohol and controlled substances; (2) paying the required fees and costs;
(3) completing community service; and (4) appearing at the October 13 review
hearing. Specifically, the State alleged that appellant used hydrocodone on
September 2, 2017, marijuana and alcohol on September 9, 2017, and
methamphetamine and amphetamine on September 27, 2017. The State requested
that the trial court adjudicate appellant’s guilt of the underlying burglary offense.
The State filed an amended motion to adjudicate guilt on April 3, 2018, raising
twelve allegations that appellant had violated the conditions of his community
supervision. In addition to the allegations that appellant had used drugs and alcohol
in September 2017 and failed to appear at the October 2017 hearing, the State added
allegations that appellant committed an offense against the laws of Texas on March
3 12, 2018, when he recklessly engaged in conducted that placed Nathan Venters in
imminent danger of serious bodily injury by “dispersing gasoline in Nathan Venters’
residence and attempting to ignite the gasoline.” The State also alleged that appellant
had failed to pay the required supervision fee for September 2017 through February
2018, the required Crime Stoppers fee, the $500 fine, and court costs. The State
further alleged that appellant failed to complete the required community service for
September 2017 through February 2018.
The trial court held a revocation hearing on July 9, 2018. At the beginning of
the hearing, the trial court read each of the twelve allegations presented in the State’s
amended motion to adjudicate guilt and asked for appellant’s plea to each allegation.
Appellant pleaded not true to allegation one, concerning placing Nathan Venters in
danger of serious bodily injury by dispersing gasoline in his residence and
attempting to ignite it; allegation three, that he used alcohol on September 9, 2017;
and allegation five, that he used amphetamines on September 27, 2017. Appellant
pleaded true to the other nine allegations raised in the State’s motion to adjudicate.
The trial court asked appellant whether his pleas of true were made freely and
voluntarily, whether anyone forced or threatened him to make those pleas, and
whether he was pleading true because the allegations were true. Appellant responded
that his pleas of true were made freely and voluntarily, that no one had threatened
him, and that the allegations to which he pleaded true were true.
4 Houston Police Department Office T. Le testified that she was on patrol on
March 12, 2018, when she received a dispatch relating to someone pouring gasoline
inside of an apartment in southeast Houston. When she arrived, Le learned that the
apartment was rented to Bettie Venters, who lived there with her sons, Nathan
Venters and appellant. Le could smell a strong smell of gasoline when she entered
the living room of the apartment. Appellant was not at the apartment at the time that
Le arrived, but another officer arrested him later that evening in the backyard, and
he was subsequently charged by a Harris County grand jury with deadly conduct.2
Appellant had marijuana in his possession at the time of his arrest. Nathan Venters
told Le that appellant had been smoking a cigarette around where he had poured the
gasoline. Appellant threw his cigarette on the ground, and Nathan extinguished it.
Brazoria County Probation Officer A. Woods was assigned to monitor
appellant during his community supervision. She met with appellant once on
September 27, 2017.3 Woods requested that appellant complete a drug and alcohol
urinalysis test on this date, which he did. Appellant tested positive for marijuana and
2 Officer Le testified that the deadly conduct case against appellant in Harris County was still pending at the time of the revocation hearing in Brazoria County. 3 Woods testified that although appellant was placed on community supervision in April 2017, she did not meet appellant until September 2017 because appellant had a pending charge in Harris County and was sentenced to state jail time. Appellant was released from confinement on this charge on September 8, 2017, and Woods met with him shortly thereafter. 5 admitted to Woods that he had used marijuana on September 9, 2017. Appellant did
not test positive for alcohol, but he admitted to Woods that he had consumed alcohol
on September 9. Appellant’s drug test results also revealed that appellant had
consumed methamphetamine and amphetamines. When speaking to Woods,
appellant denied taking methamphetamine and amphetamines, but he admitted
taking some of his father’s hydrocodone pills.4 Appellant did not have an explanation
for why he had tested positive for methamphetamine. The trial court admitted copies
of appellant’s drug test results.
Woods testified that appellant never paid any of his required monthly
supervision fees, nor did he pay the required Crime Stoppers fee, the $500 fine
imposed in the order of deferred adjudication, or his court costs. Woods stated that
the community supervision conditions required appellant to complete 120 hours of
community service, but although Woods explained this requirement and appellant
indicated his understanding, he did not complete any community service hours.
Woods also testified that she twice told appellant—including during a phone
conversation on October 11—that the community supervision conditions required
him to appear at a review hearing before the trial court on October 13, 2017, but
appellant did not attend. Appellant called Woods on October 13 and stated that he
4 Appellant did not test positive for hydrocodone or opiates. Woods asked appellant if it was possible that the pills he took were not actually hydrocodone, and appellant “explained that those were his father’s pills.” 6 had not been able to attend the hearing because he had been in the emergency room
for chest pains, but appellant never provided any medical records or documentation
to Woods. Woods sought a capias for appellant’s arrest due to his failure to attend
the October 2017 hearing. Woods had no further contact with appellant after October
2017, and appellant was placed on “absconder” status in December 2017.
Appellant also testified at the revocation hearing. At the time he was placed
on community supervision he was living with his mother in Houston. Appellant
testified that he was released from confinement on a separate charge in September
2017, and he would smoke marijuana every day as a way to deal with the pressure
of being out of confinement and on community supervision. With respect to the
positive drug test results for methamphetamine and amphetamines, appellant stated,
“I wasn’t aware that it was methamphetamine. It was a tab that I took.” He stated
that he believed he was taking an antidepressant. Appellant testified, “[W]hen I
failed the [urinalysis] sample, that’s when I figured everything was just downhill
from there; and I was just waiting for them to come and get me.”
With respect to the incident in March 2018 at his apartment with the gasoline,
appellant stated that he had been hearing voices. He also stated that he had taken “a
tab” the day before, which he thought was an antidepressant, and he felt frustrated
and extremely confused regarding what was going on with himself and the people
around him. He obtained the gasoline that he used from a local corner store.
7 Appellant denied that he had any drug addictions, but he requested that if the trial
court believed he needed to participate in a drug treatment program, that he be
allowed to complete such a program while not being confined.
Appellant admitted that he had not completed any of his required community
service hours, that he had not paid any of the required fines or costs, and that he had
not attended the October 2017 review hearing. He admitted that he was not in the
hospital on the date of the review hearing and that he had lied to Woods when he
told her that that was where he had been. He stated that, because he had failed the
urinalysis test, he believed he would have been arrested had he shown up to the
hearing.
At the close of the hearing, the trial court found all twelve allegations raised
in the State’s amended motion to adjudicate guilt to be true. Approximately two
weeks later, the trial court held a sentencing hearing at which it revoked appellant’s
community supervision, found him guilty of the underlying offense of burglary of a
habitation, and assessed his punishment at twelve years’ confinement.5 This appeal
followed.
5 The trial court’s judgment adjudicating guilt stated, “While on community supervision, Defendant violated the terms and conditions of community supervision as set out in the State’s 1st Amended Motion to Adjudicate Guilt as follows: 2, 4, 6, 7, 8, 9, 10, 11, 12.” The judgment did not state that appellant violated allegations one, three, and five raised in the State’s amended motion, even though the trial court orally found these allegations to be true. 8 Revocation of Community Supervision
In his sole issue, appellant contends that the trial court abused its discretion
by finding that he had violated the conditions of his community supervision and by
revoking his community supervision.
A. Standard of Review and Governing Law
If, in the opinion of the trial court, the best interest of society and the defendant
will be served, the court may, after receiving a plea of guilty, hearing the evidence,
and finding that it substantiates the defendant’s guilt, defer further proceedings
without entering an adjudication of guilt and place the defendant on deferred
adjudication community supervision. TEX. CODE CRIM. PROC. ANN. art. 42A.101(a).
The trial court shall inform the defendant of the possible consequences of violating
a condition of deferred adjudication community supervision. Id. art. 42A.101(b); see
id. art. 42A.751(b) (“At any time during the period of community supervision, the
judge may issue a warrant for a violation of any condition of community supervision
and cause the defendant to be arrested.”). If a defendant violates a condition of
deferred adjudication community supervision, the defendant “is entitled to a hearing
limited to a determination by the court of whether the court will proceed with an
adjudication of guilt on the original charge.” Id. art. 42A.108(b). After the trial court
adjudicates the defendant’s guilt, all proceedings, including a defendant’s appeal,
“continue as if the adjudication of guilt had not been deferred.” Id. art. 42A.110(a).
9 For a trial court to revoke a defendant’s community supervision, the State
must prove the violation of a condition of community supervision by a
preponderance of the evidence. Hacker v. State, 389 S.W.3d 860, 864–65 (Tex.
Crim. App. 2013); Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006);
Bell v. State, 554 S.W.3d 742, 746 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d).
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.” Hacker, 389 S.W.3d at 865 (quoting Rickels,
202 S.W.3d at 763–64); Bell, 554 S.W.3d at 746.
Our review of a trial court’s order revoking community supervision and
adjudicating a defendant’s guilt is limited to determining whether the trial court
abused its discretion in determining that the defendant violated the conditions of his
community supervision. Bell, 554 S.W.3d at 746 (citing Rickels, 202 S.W.3d at 763);
Duncan v. State, 321 S.W.3d 53, 56–57 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref’d); see Hacker, 389 S.W.3d at 865 (“For probation-revocation cases, we have
described the appellate standard of review as whether the trial court abused its
discretion.”). To support the trial court’s order revoking community supervision and
adjudicating guilt, the State need only establish one sufficient ground for revocation.
Duncan, 321 S.W.3d at 57. “A plea of true, standing alone, is sufficient to support
the revocation of community supervision and adjudicate guilt.” Tapia v. State, 462
10 S.W.3d 29, 31 n.2 (Tex. Crim. App. 2015). We view the evidence in the light most
favorable to the trial court’s order. Bell, 554 S.W.3d at 746; Duncan, 321 S.W.3d at
57. As the factfinder at a revocation proceeding, the trial court determines the
credibility of the witnesses and the weight to be given to their testimony. Bell, 554
S.W.3d at 746; Duncan, 321 S.W.3d at 57.
B. Analysis
In this case, appellant pleaded guilty to the underlying criminal offense—a
charge of burglary of a habitation. The trial court deferred adjudication of appellant’s
guilt and placed him on community supervision for four years. The trial court
imposed numerous conditions on appellant during this period of community
supervision, including requirements that he commit no violations against the laws of
Texas, that he avoid using alcohol and controlled substances, that he pay certain
required fines and costs, that he complete 120 hours of community service, and that
he attend a review hearing on October 13, 2017. The State filed original and
amended motions to revoke appellant’s community supervision and to adjudicate his
guilt of the underlying burglary offense, alleging that he had committed twelve
violations of the conditions of community supervision.
At the revocation hearing, appellant pleaded not true to three of the allegations
raised by the State in its motion to adjudicate: (1) that he had committed the offense
of deadly conduct by pouring gasoline in his mother’s apartment and attempting to
11 ignite the gasoline; (2) that he had used alcohol on September 9, 2017; and (3) that
he had used amphetamines on September 27, 2017. Appellant pleaded true to the
other nine allegations raised in the State’s motions. Appellant’s pleas of true to nine
of the allegations in the State’s motion, standing alone, are sufficient to support the
trial court’s order revoking his community supervision and adjudicating his guilt of
the underlying burglary offense.6 See Tapia, 462 S.W.3d at 31 n.2; see also Duncan,
321 S.W.3d at 57 (stating that, to support trial court’s revocation and adjudication
order, State need only establish one sufficient ground for revocation).
Appellant argues that the trial court abused its discretion and he was denied
due process because “the mere placing of a defendant on a deferred adjudication that
all parties know is a failure from day one violates due process.” As support for this
6 We note that, in addition to appellant’s pleas of true to nine of the allegations raised in the State’s amended motion, appellant testified at the revocation hearing and admitted that he had used marijuana and controlled substances, that he had poured the gasoline inside his mother’s house, that he had completed none of his required community service hours, that he had not paid any of his required fees or costs, and that he had failed to attend the October 2017 review hearing. Appellant’s testimony is also supported by testimony from Officer Le concerning the March 2018 incident at his mother’s apartment and from Officer Woods concerning appellant’s positive drug test results, failure to complete his community service hours, failure to pay his required fees and costs, and failure to attend the review hearing. We conclude that the State presented sufficient evidence that appellant violated the conditions of his community supervision. See Hacker v. State, 389 S.W.3d 860, 864–65 (Tex. Crim. App. 2013) (holding that State must prove that defendant violated condition of community supervision by preponderance of evidence, meaning “that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation”); Bell v. State, 554 S.W.3d 742, 746 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d). 12 argument, appellant points out that, at the time he was placed on deferred
adjudication for the underlying burglary offense in Brazoria County in April 2017,
he was serving a sentence for an unknown offense in Harris County. He was confined
for approximately five months on that offense before being released from
confinement in September 2017. Appellant argues that he was “five or more months
behind” on his community supervision for the Brazoria County burglary offense at
the time he was released from confinement for the Harris County offense, and the
trial court abused its discretion by revoking his deferred adjudication because, at the
time he was placed on deferred adjudication for the Brazoria County offense, he was
“immediately in violation of same and subject to revocation” due to his incarceration
for the Harris County offense.
The State, however, did not seek to adjudicate appellant’s guilt on the Brazoria
County burglary offense due to any conduct or failures to comply that occurred while
appellant was incarcerated in Harris County from April 2017 through early
September 2017. Instead, all of the grounds raised in the State’s motion addressed
conduct or omissions that occurred after appellant was released from confinement.
The State alleged that appellant consumed alcohol and controlled substances after
he was released from confinement in September 2017. It specifically alleged that
appellant failed to complete his required community service and failed to pay his
required fees and costs beginning in September 2017 through February 2018. It
13 alleged that he failed to attend a review hearing in October 2017, after he had been
released from confinement. And it alleged that he committed a new offense against
the laws of Texas in March 2018, six months after he had been released from
confinement. Appellant’s argument that the trial court’s revocation and adjudication
order violated his due process rights because he was placed on deferred adjudication
knowing that he would immediately be in violation of the conditions of community
supervision is therefore unavailing.
We hold that the trial court did not abuse its discretion in finding that appellant
had violated the conditions of his community supervision, revoking his community
supervision, and adjudicating his guilt of the underlying burglary offense. See
Hacker, 389 S.W.3d at 865; Bell, 554 S.W.3d at 746.
We overrule appellant’s sole issue.
C. Modification of Trial Court’s Judgment
The State requests that we modify a portion of the trial court’s judgment
adjudicating appellant’s guilt for the burglary offense because the judgment
erroneously states that appellant violated the conditions of community supervision
as set out in allegations “2, 4, 6, 7, 8, 9, 10, 11, [and] 12” of the State’s amended
motion to adjudicate, but the trial court stated both at the close of the revocation
hearing and at the sentencing hearing approximately two weeks later that it found
14 that all twelve allegations raised in the State’s amended motion—including
allegations one, three, and five—were true.
Appellate courts have the authority to reform a judgment and affirm the
judgment as modified in cases where there is non-reversible error. Walker v. State,
557 S.W.3d 678, 690 (Tex. App.—Texarkana 2018, pet. ref’d); see TEX. R. APP. P.
43.2 (providing that appellate court may “modify the trial court’s judgment and
affirm it as modified”). We may modify a judgment when the evidence necessary to
correct that judgment appears in the record. See Bigley v. State, 865 S.W.2d 26, 27–
28 (Tex. Crim. App. 1993) (declining to limit courts of appeals’ authority to reform
judgments to situations involving clerical mistakes); Edwards v. State, 497 S.W.3d
147, 164 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (stating that appellate
courts have “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’”) (quoting Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.]
2001, no pet.)).
At the close of the revocation hearing, the trial court stated on the record that
it found all twelve allegations raised in the State’s amended motion to adjudicate
guilt to be true. At a sentencing hearing approximately two weeks later, the trial
court stated that it found allegations one through four and allegations six through
twelve to be true, and allegation five to be not true. The prosecutor sought
15 clarification, pointing out that at the revocation hearing, the trial court had found all
twelve allegations to be true. The trial court reviewed its notes and agreed with the
prosecutor, stating, “I didn’t read my notes correctly. I did find that all allegations
were true. . . . So I will find all allegations to be true.” The written judgment
adjudicating appellant’s guilt, however, included a finding stating, “While on
community supervision, Defendant violated the terms and conditions of community
supervision as set out in the State’s 1st Amended Motion to Adjudicate Guilt as
follows: 2, 4, 6, 7, 8, 9, 10, 11, 12.”
The written judgment omits the trial court’s oral findings on the record that
the first, third, and fifth allegations raised in the State’s amended motion to
adjudicate guilt were also true. The State argues that we should reform the judgment
of the trial court to include the court’s oral findings that allegations one, three, and
five were true. The record reflects that, in addition to the allegations specified in the
judgment, the trial court also found the first, third, and fifth allegations to be true,
and evidence presented at the revocation hearing supports these findings. We
therefore grant the State’s request and modify the judgment of the trial court to
reflect that the trial court found all allegations raised in the State’s amended motion
to adjudicate to be true.
16 Conclusion
We modify the judgment of the trial court to state: “While on community
supervision, Defendant violated the terms and conditions of community supervision
as set out in the State’s 1st Amended Motion to Adjudicate Guilt as follows: 1, 2, 3,
4, 5, 6, 7, 8, 9, 10, 11, 12.” We affirm the judgment as modified.
Evelyn V. Keyes Justice
Panel consists of Chief Justice Radack and Justices Keyes and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).