Michael Jason Gaither v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-09-284-CR

MICHAEL JASON GAITHER APPELLANT

V.

THE STATE OF TEXAS STATE

------------

FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

------------

MEMORANDUM OPINION 1

------------

In a single point, appellant Michael Jason Gaither appeals the legal sufficiency

of the evidence supporting the trial court’s finding that he committed the new offense

of burglary of a habitation as alleged in the State’s petition to adjudicate. W e affirm.

On July 2, 2007, appellant pled guilty to assault causing bodily injury of a

family or household member, enhanced with a prior conviction for the same offense.

In accordance with a plea bargain, the trial court placed appellant on three years’

deferred adjudication community supervision. As conditions of appellant’s

1  See Tex. R. App. P. 47.4. community supervision, he was to refrain from committing any new criminal offenses,

abstain from the use of controlled substances, marijuana, and alcoholic beverages,

submit to a substance abuse assessment, attend and successfully complete

treatment, and submit to drug and alcohol testing.

On September 13, 2007, the State filed a petition to adjudicate appellant guilty

of the original assault offense. The State dismissed that petition on November 2,

2007 and filed a second petition to adjudicate on June 1, 2009. The second petition

alleged in the first paragraph that on May 17, 2009, appellant intentionally or

knowingly entered a part of Joseph Dial’s habitation without Dial’s consent, with the

intent to commit assault. See Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003).

The second paragraph alleged that appellant threatened to murder Dial in retaliation

for reporting the burglary alleged in paragraph one. See id. § 36.06(a)(1)(B) (Vernon

Supp. 2009). Paragraph three alleged six different instances of drug use, including

cocaine, heroin, and morphine. Paragraph four alleged one instance of failure to

submit to a urinalysis. And the final paragraph alleged that appellant failed to pay

community supervision fees for fifteen months.

At the hearing on the petition to adjudicate, appellant pled not true to the

burglary and retaliation allegations, pled true to the four allegations of cocaine use,

pled not true to the allegation of heroin use and the allegation of morphine use, pled

not true to the allegation of failure to submit a urinalysis, and, finally, pled true to all

of the failure to pay allegations. After a hearing, the trial court found paragraph one,

2 the burglary allegation, and paragraphs 3a-d, the cocaine use allegations, to be true

and sentenced appellant to five years’ confinement.

Appellant contends that there is no evidence to support the burglary allegation

and there is a “reasonable probability” that without that finding—even though he pled

true to the allegations of cocaine use—the trial court would not have adjudicated him

guilty, would not have sentenced him to a period of confinement, or would not have

sentenced him to such a long period of confinement. But each of appellant’s pleas

of true to the four separate allegations of cocaine use, standing alone, is sufficient

to support the trial court’s decision to adjudicate. See Moses v. State, 590 S.W .2d

469, 470 (Tex. Crim. App. 1979); Atchison v. State, 124 S.W .3d 755, 758–59 (Tex.

App.—Austin 2003, pet. ref’d); Battles v. State, 626 S.W .2d 149, 150 (Tex.

App.—Fort W orth 1981, no pet.); see also Tex. Code Crim. Proc. Ann. art. 42.12,

§ 5(b) (Vernon Supp. 2009) (providing that decision to adjudicate is reviewable in

same manner as decision to revoke community supervision that did not result from

deferred adjudication). Accordingly, we conclude and hold that regardless of

whether there is evidence supporting the trial court’s finding on the burglary

allegation, the trial court did not abuse its discretion by adjudicating appellant guilty

based on his four true pleas to the cocaine use allegations. See Moses, 590 S.W .2d

at 470; Segura v. State, No. 07-08-00492-CR, 2009 W L 3380349, at *2–3 (Tex.

App.—Amarillo Oct. 20, 2009, no pet.) (mem. op., not designated for publication);

Uriegas v. State, No. 03-07-00647-CR, 2008 W L 5423147, at *1 (Tex. App.—Austin

3 Dec. 30, 2008, no pet.) (mem. op., not designated for publication). Moreover, the

sentence imposed by the trial court is well within the range of punishment for the

original offense for which appellant was placed on deferred adjudication. See Tex.

Penal Code Ann. §§ 12.34(a), 22.01(a)(1), (b)(2) (Vernon Supp. 2009).

W e overrule appellant’s sole point and affirm the trial court’s judgment.

TERRIE LIVINGSTON JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: March 4, 2010