Ladarion Deshayne Cummings v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-18-00042-CR
LADARION DESHAYNE APPELLANT
CUMMINGS
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1414583D
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MEMORANDUM OPINION1
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Appellant Ladarion Deshayne Cummings pleaded guilty to the offense of
aggravated sexual assault of a child under fourteen and was placed on deferred-
adjudication community supervision for ten years. A year later, the State filed a
petition to proceed to adjudication, and Cummings pleaded true to the three
alleged violations in the State’s petition. The trial court accepted Cummings’s
1
See Tex. R. App. P. 47.4.
pleas of true to the three alleged violations, found that Cummings had violated
the terms of his community supervision, adjudicated Cummings guilty of
aggravated sexual assault of a child under fourteen, and sentenced him to twenty
years’ confinement.
In a single issue, Cummings argues that his pleas of true to the allegations
in paragraphs 2 and 3 of the State’s petition to adjudicate were involuntary
because the petition failed to give adequate notice of the violations, 2 depriving
him of his rights to due process and due course of law.
2
Paragraphs 2 and 3 of the State’s petition to proceed to adjudication are
as follows:
2) SUPPLEMENTAL / AMENDMENT TO CONDITIONS OF
COMMUNITY SUPERVISION FOR SEXUAL OFFENDERS: The
Defendant was ordered not to go in, on, or within 1,000 feet of a
premise where children commonly gather, including a school, day-
care facility, playground, public or private youth center, public
swimming pool, or video arcade facility. In violation of this condition,
[Cummings’s electronic monitor showed that] the Defendant came
within 1,000 feet of a place where children commonly gather on or
about the following dates:
August 9, 2017
August 14, 2017
August 15, 2017
August 16, 2017
August 17, 2017
August 19, 2017
August 22, 2017
August 23, 2017
August 24, 2017
August 28, 2017
August 29, 2017
September 6, 2017
2
A review of the record shows that Cummings did not file a motion to quash
the State’s petition,3 did not object, and did not otherwise bring to the trial court’s
attention any complaint regarding the alleged inadequate notice of the violations
in paragraphs 2 and 3 of the State’s petition, nor did Cummings alert the trial
court to his due-process and due-course-of-law complaints.
Constitutional errors may be forfeited by the failure to object at trial. See
Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Because
Cummings did not raise his due-process and due-course-of-law complaints in the
trial court, he has failed to preserve them for review. See id. at 340; Rogers v.
State, 640 S.W.2d 248, 265 (Tex. Crim. App. [Panel Op.] 1981) (op. on State’s
second motion for reh’g) (holding appellant forfeited his due-process complaint
by failing to assert due-process objection and affirming revocation of community
supervision); Benson v. State, 224 S.W.3d 485, 498 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (same).
Additionally, Cummings concedes that paragraph 1 of the State’s petition
“does fairly allege a violation (traveling out of the county without permission), but
3) SUPPLEMENTAL / AMENDMENT TO CONDITIONS
OF COMMUNITY SUPERVISION: Electronic Monitoring: The
Defendant was ordered to participate and successfully complete
GPS. In violation of this condition, the Defendant failed to comply
with the GPS monitor on or about September 7, 2017, September 8,
2017, September 9, 2017, September 10, 2017[,] and September
12, 2017.
3
Cummings concedes in his brief that he did not file a motion to quash.
3
contends that, without context, such a violation may not justify an adjudication of
guilt.” Cummings’s plea of true to paragraph 1, however, is sufficient to justify an
adjudication of his guilt. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim.
App. [Panel Op.] 1979); Harris v. State, 160 S.W.3d 621, 626 (Tex. App.—Waco
2005, pet. stricken) (holding that unchallenged violation to which appellant
pleaded “true” was sufficient to support trial court’s revocation).
Accordingly, we overrule Cummings’s sole issue.4 But having determined
that the judgment contains error, we modify the trial court’s judgment to delete
the $1,000 fine, and we similarly modify the incorporated order to withdraw funds
to reduce the authorized withdrawal amount by $1,000, leaving a total of $5,734.5
4
Cummings does not raise an argument directed to the inclusion of the
$1,000 fine in the judgment adjudicating his guilt. We have previously held that
we have the authority to reform a judgment to reflect the truth when we have the
necessary information to do so and have reformed a judgment to delete an
unpronounced fine. See Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d
607, 609 (Tex. Crim. App. 1992); Banks v. State, 708 S.W.2d 460, 461–62 (Tex.
Crim. App. 1986); Demerson v. State, No. 02-18-00003-CR, 2018 WL 3580893,
at *2 (Tex. App.—Fort Worth July 26, 2018, no pet. h.) (mem. op., not designated
for publication). At the revocation hearing, the trial court did not orally pronounce
a fine but assessed a fine in the judgment adjudicating guilt. Although the trial
court included an unsuspended fine in the order of deferred adjudication, the
judgment adjudicating guilt set aside the prior deferred order, including the fine.
See Taylor v. State, 131 S.W.3d 497, 499–500 (Tex. Crim. App. 2004). The trial
court’s oral pronouncement of sentence controls over its written judgment to the
extent they conflict; therefore, the judgment must be modified to delete the
$1,000 fine amount and that amount must also be removed from the incorporated
order to withdraw funds from Cummings’s inmate trust account. See id.;
Demerson, 2018 WL 3580893, at *2.
5
This amount is the result of $5,095 in reparations and $639 in court costs.
4
As modified, we affirm the trial court’s judgment. See Tex. R. App. P. 43.2(b).
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, GABRIEL, and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 23, 2018
5