David Wayne Rosson v. State ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-06-00226-CR ______________________________



DAVID WAYNE ROSSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 102nd Judicial District Court Red River County, Texas Trial Court No. CR00881

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

David Wayne Rosson appeals from the order placing him on deferred adjudication for the offense of indecency with a child. We dismiss Rosson's appeal for want of jurisdiction.

The trial court filed a certification, in accordance with Rule 25.2(a)(2), that Rosson "waived the right of appeal." Rule 25.2(a)(2) states, in pertinent part:

(2) . . . A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order.

Tex. R. App. P. 25.2(a)(2). If a certification showing that the defendant has the right of appeal is not made a part of the appellate record, we must dismiss the case unless the record affirmatively indicates that an appellant may have the right of appeal. Tex. R. App. P. 25.2(d); see Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 649 (Tex. Crim. App. 2005); Dears v. State, 154 S.W.3d 610, 612 (Tex. Crim. App. 2005). We have examined the clerk's record to determine whether the trial court's certification is defective. See Dears, 154 S.W.3d at 613. Nothing in the record indicates the certification is defective. This Court lacks jurisdiction over this appeal. ⁽¹⁾

We dismiss the appeal for want of jurisdiction.

Bailey C. Moseley

Justice

Date Submitted: January 29, 2007

Date Decided: January 30, 2007

Do Not Publish

1. The plea agreement in this case demonstrates that Rosson's waiver of appeal was done knowingly, voluntarily, and intelligently. See Ex parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006) ("One way to indicate that the waiver was knowing and intelligent is for the actual punishment or maximum punishment to have been determined by a plea agreement when the waiver was made.").

no such finding of the trial court.

The record shows Bushong was placed on community supervision February 27, 2002. As part of her community supervision, she was required to submit to an alcohol and drug evaluation within sixty days and submit to any treatment recommendations stemming from that evaluation. In her testimony at the revocation hearing, she admitted using cocaine and drinking alcohol April 19, 2002.

On April 20, 2002, Bushong, who was spending weekends in jail as a condition of her community supervision, appeared at the jail intoxicated and registered a high reading on a breathalyzer   test  administered  there.  Bushong  reportedly  told  jail  officials  she  had  two  beers at 6:00 a.m.  and  took  two  "Tylenol  PM"  at  8:00  a.m.  The  jail's  report  on  the  incident was prepared at 8:40 a.m.

On April 22, 2002, Bushong's supervision officer administered a drug screening at which Bushong tested positive for cocaine and methamphetamine. When her supervision officer asked her whether she admitted using these substances, Bushong reportedly replied she "might have been around it."

Bushong pled true to the State's allegations that she drank alcohol and used cocaine, stipulated to the State's evidence, and testified that she drank alcohol and used cocaine. This violation is, in and of itself, sufficient to support the trial court's decision to revoke community supervision. See Cardona, 665 S.W.2d at 493-94; Stevens, 900 S.W.2d at 351.

Further, the record shows Bushong used alcohol and drugs less than two months after being placed on community supervision. The trial court inquired at length into Bushong's suitability for drug and alcohol treatment and, in particular, her failure to admit to her supervision officer that she used cocaine. The trial court could have reasonably concluded that Bushong was not a suitable candidate for drug and alcohol treatment. Under these circumstances, the trial court did not abuse its discretion in revoking her community supervision.

Bushong next contends the trial court erred in revoking her community supervision because there was a variance between the terms of her community supervision and the State's motion to revoke. The judgment placing Bushong on community supervision recites she was sentenced to ten years' imprisonment, "probated five (5) years." The motion to revoke recites that Bushong "was assessed punishment of five (5) years confinement . . . [but] placed . . . on probation for a period of five (5) years." ⁽¹⁾

Allegations in a motion to revoke community supervision need not be stated with the same particularity required in an information or indictment. LaBelle v. State, 720 S.W.2d 101, 104 (Tex. Crim. App. 1986); Garner v. State, 545 S.W.2d 178, 179 (Tex. Crim. App. 1977). The alleged violations must be fully and clearly set forth in such a way that the defendant will be informed of that against which he or she will have to defend. LaBelle, 720 S.W.2d at 104; Garner, 545 S.W.2d at 179. The motion must give the defendant fair notice of the violation in order to comport with minimum due process requirements. LaBelle, 720 S.W.2d at 104; Garner, 545 S.W.2d at 179. When the allegations fail to fully inform the defendant, and the trial court overrules the defendant's timely objection, the defendant is denied due process. LaBelle, 720 S.W.2d at 104-05; Garner, 545 S.W.2d at 179.

We fail to see how the variance between the judgment and the motion to revoke was either material or prejudicial to Bushong's rights. The motion to revoke alleged that Bushong was required to abstain from alcohol and illegal drugs, but that she failed to do so. These are the allegations against which she was called on to defend and to which she ultimately pled true.

Nor did Bushong object to this variance at the hearing on the motion to revoke. She has therefore waived her complaint on appeal. Tex. R. App. P. 33.1(a).

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: February 3, 2003

Date Decided: February 4, 2003

Do Not Publish

1. Bushong further contends the trial court's oral pronouncement at her trial was at variance with and should control over the written judgment. That issue is untimely, as Bushong did not bring an appeal from the original judgment placing her on community supervision. Also, the record from Bushong's trial shows the trial court's oral pronouncement is consistent with its written judgment. After finding Bushong guilty, the trial court asked for recommendations as to her punishment. The State recommended that she be sentenced to ten years' imprisonment, but that she be placed on ten years' community supervision. Bushong concurred in that recommendation. The trial court then said:

I assess your punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice. I don't know why the recommendation is that it be for a period of ten years. It seems a little long given the nature of the offense and the prior criminal history presented to the Court. I've heard nothing in the way of the evidence to compel me - lead me to a conclusion that a ten year probation is appropriate, so I decline to do it for that length of time. I probate it for a period of five years.

Read in context, the trial court clearly did not make a pronouncement regarding the length of Bushong's prison sentence. That deficiency was remedied in the written judgment. The trial court's comments relating to the State's and Bushong's recommendations clearly took issue with the length of the supervision period, rather than the length of the prison term.