Ralph Dumbar v. State ( 2018 )

Opinion issued November 6, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00964-CR
———————————
RALPH DUMBAR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1426611
MEMORANDUM OPINION
Appellant Ralph Dumbar was indicted for the offense of aggravated assault
with a deadly weapon1 and pleaded guilty. The trial court deferred adjudicating his
1
See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
guilt, placed him on community supervision for five years, and ordered him to pay
a $200 fine. The State later filed a motion to adjudicate guilt, alleging seven reasons
for revoking community supervision. He pleaded “not true” to the allegations. After
a hearing, the trial court found allegations one (intentionally giving a false or
fictitious name to a peace officer), five (failing to obtain suitable employment or to
provide proof of efforts to obtain employment), six (failing to attain a successful
discharge from court-ordered outpatient treatment), and seven (failing to participate
in a court-ordered substance-abuse program) to be true and sentenced him to ten
years’ imprisonment. In his sole contention on appeal, Dumbar argues that the
evidence was insufficient to support allegation one because the State obtained its
evidence as a result of an unlawful detention. His brief before us does not otherwise
challenge the trial court’s findings on allegations five, six, and seven. We modify
the trial court’s judgment and affirm it as modified.
Background
In 2014, Dumbar pleaded guilty to aggravated assault with a deadly weapon.
The trial court deferred adjudication of guilt, placed him on community supervision
for five years, and ordered him to pay a $200 fine.
In 2015, the State filed an amended motion to adjudicate his guilt, alleging
that he had violated the conditions of his community supervision by (1) intentionally
giving a false or fictitious name to a peace officer, (2) failing to avoid injurious or
2
vicious habits by using cocaine, (3) failing to avoid injurious or vicious habits by
using cocaine on a separate occasion, (4) failing to report to his
community-supervision officer, (5) failing to obtain suitable employment or to
provide proof of efforts to obtain employment, (6) failing to attain a successful
discharge from court-ordered outpatient treatment, and (7) failing to participate in a
court-ordered substance-abuse program. He pleaded “not true” to the allegations.
At the hearing on the State’s motion, the State introduced testimony from
Officer J. Smith of the Houston Police Department. Officer Smith testified that,
while working for the Department’s gang unit, he came upon an area known for sales
of illegal drugs. He saw and then approached a large group of men “hanging out”
and playing “music excessively loud.” When he got out of his car, he could smell
marijuana, and he saw marijuana in a car near the group. Dumbar and another man
were about twenty feet from the car; Officer Smith detained them. Dumbar then told
Officer Smith that his name was “Kendrick Dumbar” and that his birthday is March
4, 1998. “Kendrick” is not Dumbar’s name, and his birthday is actually March 4,
1995.
The State also introduced testimony from M. Reid, a court-liaison officer
employed by the Harris County Community Supervision and Corrections
Department. Reid testified that she explained to Dumbar the conditions of his
community supervision and that they included reporting proof of employment or
3
attempts to obtain employment, attaining a successful discharge from the Turning
Point treatment program, and completing the Substance Abuse Continuum Care
program. Reid testified that Dumbar failed to report any employment or efforts to
obtain employment, was unsuccessfully discharged from Turning Point, and failed
to report whether he had successfully completed Substance Abuse Continuum Care.
Following the presentation of evidence, the trial court found allegations one,
five, six, and seven to be true. It adjudicated Dumbar’s guilt for aggravated assault
with a deadly weapon, revoked his community supervision, and sentenced him to
ten years’ imprisonment.
Grounds for Adjudication of Guilt and Revocation of Community Supervision
In his sole issue, Dumbar contends that the trial court erred by adjudicating
his guilt and revoking his community supervision based on the State’s allegation that
he intentionally gave a false or fictitious name to a peace officer. Dumbar argues
that the detention leading to his remarks to Officer Smith was unlawful and that,
therefore, any evidence obtained as a result is inadmissible. Were the evidence
inadmissible, his argument goes, there would be insufficient evidence to support the
trial court’s finding on allegation one.
I. Standard of Review
We review an order adjudicating guilt and revoking community supervision
for an abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
4
2006). The State bears the burden of proof to show by a preponderance of the
evidence that the defendant violated a condition of community supervision as
alleged in the State’s motion. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.
1993); Shah v. State, 403 S.W.3d 29, 33–34 (Tex. App.—Houston [1st Dist.] 2012,
pet. ref’d). The State meets its burden if its evidence “created a reasonable belief that
[the defendant] violated a condition of community supervision.” Shah, 403 S.W.3d
at 34. If the State fails to carry its burden, then the trial court abuses its discretion by
adjudicating guilt and revoking community supervision. Id.
We view the evidence in the light most favorable to the trial court’s ruling. Id.
The trial court is the sole judge of the facts, the credibility of the witnesses, and the
weight to be given to the witnesses’ testimony. Id.
If the evidence allows the trial court reasonably to find that the defendant
violated at least one condition of community supervision, then that one violation is
sufficient on its own to support an adjudication of guilt and revocation of community
supervision, and we need not consider whether the State presented sufficient
evidence of other alleged violations. Id. at 35; see also O’Neal v. State, 623 S.W.2d
660, 661 (Tex. Crim. App. [Panel Op.] 1981); Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. [Panel Op.] 1980).
5
II. Dumbar did not challenge three of the allegations found to be true, and
sufficient evidence supports those allegations.
Dumbar’s only argument on appeal is that insufficient evidence supported
allegation one because the evidence of his intentionally giving a false or fictitious
name to a peace officer stems only from an unlawful detention by Officer Smith.
Dumbar does not challenge allegations five, six, or seven, which the trial court
found to be true. Reid’s testimony supported the allegations that Dumbar failed to
obtain employment and failed to report proof of efforts to obtain employment
(allegation five), failed to attain a successful discharge from the Turning Point
treatment program (allegation six), and failed to complete Substance Abuse
Continuum Care (allegation seven). Dumbar even notes that his trial counsel “did
concede that [he] failed to report for the second half of July 2017 and failed to
provide proof of suitable employment.” His counsel acknowledged during closing
argument that “[t]he Court is aware of the failure of the defendant to provide the
department the proof of suitable employment.”
Reid’s testimony supplied sufficient evidence from which the trial court
reasonably could have found that Dumbar violated the conditions of his community
supervision as the State alleged in allegations five, six, and seven. Because proof of
one violation is sufficient to support an adjudication of guilt and revocation of
community supervision, we need not reach Dumbar’s issue concerning allegation
6
one. See O’Neal, 623 S.W.2d at 661; Moore, 605 S.W.2d at 926; Shah, 403 S.W.3d
at 35.
We hold that the trial court did not abuse its discretion in adjudicating
Dumbar’s guilt and revoking his community supervision.
III. The trial court’s judgment should be modified to reflect Dumbar’s plea
of “not true” to the State’s motion.
The State raises a clerical error in the trial court’s judgment. The judgment
indicates that Dumbar pleaded “true” to the State’s motion to adjudicate guilt. The
record, however, reflects that Dumbar pleaded “not true.”
We may “correct and reform a trial court judgment ‘to make the record speak
the truth when [we] ha[ve] the necessary data and information to do so, or make any
appropriate order as the law and nature of the case may require.’” Nolan v. State, 39
S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (quoting Asberry
v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d)); accord TEX. R.
APP. P. 43.6.
Because the record reflects that Dumbar pleaded “not true,” we modify the
trial court’s judgment by adding “not” before “true” in the portion of the judgment
stating Dumbar’s “plea to motion to adjudicate.”
7
Conclusion
We affirm the judgment of the trial court as modified.
Russell Lloyd
Justice
Panel consists of Justices Keyes, Bland, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
8