Thomas Albert Arender v. State ( 2010 )

NO. 07-08-00255-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 21, 2010
THOMAS ALBERT ARENDER, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 40TH DISTRICT COURT OF ELLIS COUNTY;
NO. 27480CR; HONORABLE GENE KNIZE, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Thomas Albert Arender appeals from the order revoking his community
supervision, adjudicating him guilty of two counts of aggravated sexual assault of a
child, and imposing a sentence that includes life imprisonment for each count in the
Institutional Division of the Texas Department of Criminal Justice. By his eight points of
error, appellant contends that the trial court abused its discretion in revoking appellant=s
community supervision and adjudicating him guilty because the evidence did not prove
at least one alleged violation by a preponderance of the evidence and was factually
insufficient to prove the violations. Finding sufficient evidence to support the trial court=s
judgment, we affirm the judgment as modified.
Background
In September 2003, appellant was charged by a two-count indictment with the
offense of aggravated sexual assault of a child. 1 In April 2004, appellant plead guilty.
The trial court entered an order deferring adjudication, placed appellant on community
supervision for a term of ten years and imposed a $5000 fine. Appellant=s deferred
adjudication was conditioned on his compliance with specified terms and conditions.
The State filed its second amended motion to revoke in October 2007, alleging
numerous violations including the commission of a criminal offense, use of illicit
substances and alcohol, leaving the county without permission, failing to pay fees,
costs, restitution and fines despite being employed, failure to comply with curfew,
having unsupervised visits with young children, failing to successfully complete sexual
offender treatment, viewing pornography, and tampering with an electronic monitoring
device. After hearing the evidence presented at the hearing, the court revoked
appellant=s community supervision and sentenced him as we have noted. Appellant
timely appealed.
Analysis
In each of appellant=s first seven issues, he contends the trial court abused its
discretion in finding the evidence presented proved the violations by a preponderance of
the evidence. We disagree.
1
See Tex. Penal Code Ann. ' 22.021 (Vernon 2007).
2
Applicable Law
In a community supervision revocation hearing, the State has the burden of
proving by a preponderance of the evidence that a condition of community supervision
has been violated. Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006);
Jenkins v. State, 740 S.W.2d 435 (Tex.Crim.App. 1983). Proof of one violation of the
terms and conditions of community supervision is sufficient to support the revocation.
McDonald v. State, 608 S.W.2d 192 (Tex.Crim.App. 1980); Taylor v. State, 604 S.W.2d
175 (Tex.Crim.App. 1980). The trial court is the trier of the facts and determines the
weight and credibility of the testimony. Garret v. State, 619 S.W.2d 172 (Tex.Crim.App.
1981); Barnett v. State, 615 S.W.2d 220 (Tex.Crim.App. 1981). Appellate review of an
order revoking community supervision is limited to the issue of whether the trial court
abused its discretion. Speth v. State, 6 S.W.3d 530, 533 (Tex.Crim.App. 1999), citing
Flournoy v. State, 589 S.W.2d 705, 707 (Tex.Crim.App. 1979). If the State does not
meet its burden of proof, the trial court abuses its discretion by revoking the defendant's
probation. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App.1984).
Trial Court Did Not Abuse Its Discretion In Revoking Appellant’s Community Supervision
At the hearing, the State introduced a certified copy of the judgment and
sentence relating to appellant=s no contest plea in August 2006 in connection with the
offense of driving with an invalid license. The State also presented a fingerprint expert
to connect appellant with this offense.
The State also introduced evidence to show that during the pre-sentence
investigation in September 2007, appellant admitted using cocaine, heroin, marijuana
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and LSD while on probation. Appellant tested positive for illegal substances on at least
one occasion. Appellant=s community supervision officer testified appellant admitted to
drinking alcohol and the officer observed empty beer cases and cans around appellant=s
residence.
The officer also testified that in July 2007, he discovered a “tamper warning” from
appellant=s electronic ankle monitor and on examining the unit, found it appeared the
band had been stretched to the point where it could be removed. The officer stated that
even after changing appellant=s electronic monitor to a GPS unit, there was evidence of
tampering.
We find ample evidence to show appellant failed to follow at least one of the
terms and conditions of his community supervision. See Trevino v. State, 218 S.W.3d
234, 240 (Tex.App.BHouston [14th Dist.] 2007, no pet.) citing Greer v. State, 999 S.W.2d
484, 486 (Tex.App.BHouston [14th Dist.] 1999, pet. ref=d) (proof of one violation of the
terms and conditions of community supervision is sufficient to support the revocation).
The preponderance of the evidence supports the trial court’s revocation and we find no
abuse of discretion. We overrule appellant=s issues 1-7.
Factual Insufficiency Not Applicable
In appellant=s eighth issue, he contends the evidence presented at the hearing
was factually insufficient to support the trial court=s ruling. As noted, we review a trial
court=s decision to revoke community supervision for an abuse of discretion. Rickels,
202 S.W.3d at 763. The general standards for reviewing the factual sufficiency of the
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evidence do not apply to appeals from the revocation of community supervision. Pierce
v. State, 113 S.W.3d 431, 436 (Tex.App.BTexarkana 2003, pet. ref=d); Cochran v. State,
78 S.W.3d 20, 27 (Tex.App.BTyler 2000, no pet.); Newton v. State, No. 07-08-0136-CR,
2008 WL 4901244 (Tex.App.BAmarillo Nov. 14, 2008, no pet.) (mem. op., not
designated for publication) (considering the administrative nature of a revocation
proceeding and the trial court=s broad discretion, the general standards for reviewing
factual sufficiency do not apply). See also Duhon v. State, No. 07-07-0064-CR, 2007
WL 2847315 (Tex.App.BAmarillo Oct. 2, 2007, no pet.), citing Davila v. State, 173
S.W.3d 195, 198 (Tex.App.BCorpus Christi 2005, no pet.) (collecting cases) (factual
sufficiency review is inapplicable to the hearing of a motion to revoke community
supervision). Rather, we review the decision to revoke community supervision in the
light most favorable to the judgment, giving deference to the trial court as the sole trier
of facts, the credibility of the witnesses, and the weight to be given to the evidence
presented. Garret, 619 S.W.2d at 174; Jones v. State, 787 S.W.2d 96, 97
(Tex.App.BHouston [1st Dist.] 1990, pet. ref=d). A trial court does not abuse its discretion
if the greater weight of credible evidence creates a reasonable belief that a defendant
violated a condition of community supervision. Rickels, 202 S.W.3d at 764.
As we concluded with regard to appellant=s first seven points of error, the trial
court=s revocation of appellant=s community supervision and adjudication of guilt was
supported by a preponderance of the evidence. We overrule appellant=s eighth point of
error.
5
Reformation of Judgment
In our review of the record, it came to our attention that the judgment includes a
clerical error. Page two of the judgment indicates appellant plead “true” to the State’s
allegations. The reporter’s record indicates appellant plead “not true” to the State’s
allegations.
This court has the power to modify the judgment of the court below to make the
record speak the truth when we have the necessary information to do so. Tex. R. App.
P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v.
State, 813 S.W.2d 526, 529-30 (Tex.App.--Dallas 1991, pet. ref'd). "The authority of an
appellate court to reform an incorrect judgment is not dependent upon the request of
any party, nor does it turn on the question of whether a party has or has not objected in
the trial court." Asberry, 813 S.W.2d at 529-30.
Because the record unambiguously indicates appellant plead “not true” to the
State’s allegations, we modify the judgment to correct the error. As modified, we affirm
the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
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