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.
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 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.(Houston [14th Dist.] 2007, no pet.)
citing Greer v. State, 999 S.W.2d 484, 486 (Tex.App.(Houston [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 evidence do not
apply to appeals from the revocation of community supervision. Pierce v.
State, 113 S.W.3d 431, 436 (Tex.App.(Texarkana 2003, pet. ref(d); Cochran
v. State, 78 S.W.3d 20, 27 (Tex.App.(Tyler 2000, no pet.); Newton v. State,
No. 07-08-0136-CR, 2008 WL 4901244 (Tex.App.(Amarillo 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.(Amarillo Oct. 2, 2007, no pet.), citing Davila v. State, 173
S.W.3d 195, 198 (Tex.App.(Corpus 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.(Houston [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.
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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[1]See Tex. Penal Code Ann. ( 22.021 (Vernon 2007).