Moore, Dawn Patrice ( 2015 )


Menu:
  •                                                                             PD-0919-15
    COURT OF CRIMINAL APPEALS
    PD-0919-15                                                 AUSTIN, TEXAS
    Transmitted 7/22/2015 7:14:32 PM
    Accepted 7/24/2015 10:14:27 AM
    ABEL ACOSTA
    CLERK
    _______________________
    IN THE COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    DAWN PATRICE MOORE
    Appellant
    VS.
    THE STATE OF TEXAS,
    Appellee
    Original conviction in the
    263RD Judicial District Court
    Harris County, Texas
    Cause No. 1294531
    Appealed From the Court of Appeals
    No. 14-14-00350-CR
    APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
    ORAL ARGUMENT REQUESTED
    SHARON E. SLOPIS
    TSB# 18511300
    P.O. Box 980803
    Houston, Texas 77098
    713/529-0771
    July 24, 2015
    ATTORNEY FOR APPELLANT
    IDENTITY OF PARTIES AND COUNSEL
    Pursuant to Tex. R. App. P. 38.1(a), (Vernon Pamph. 2015), the following
    persons are interested parties:
    Presiding Judge At Trial
    The Honorable Judge Jim Wallace
    263rd Judicial District Court
    310 San Jacinto
    Houston, Tx 77002
    Attorneys for State
    Ms. Tammy Massa (at trial)
    Assistant D.A.
    201 Fannin
    Houston, Tx 77002
    Mr. Alan Curry (on appeal)
    Assistant D.A.
    201 Fannin
    Houston, Tx 77002
    Attorney for Defense
    Ms. Cheryl E. Irvin (at trial)
    Attorney at Law
    Houston, Texas
    Ms. Sharon E. Slopis (on appeal)
    Attorney at Law
    P.O. Box 980803
    Houston, Texas 77098
    (713)529-0771
    -i-
    TABLE OF CONTENTS
    IDENTITY OF PARTIES AND COUNSEL                          .   .       .       .   i
    INDEX OF AUTHORITIES .            .       .          .   .   .           .   .   iii
    PETITION FOR DISCRETIONARY REVIEW .                      .   .       .       .   v
    STATEMENT OF THE NATURE OF THE CASE                              .       .   .   v
    STATEMENT OF PROCEDURAL HISTORY .                        .   .       .       .   vi
    STATEMENT REGARDING ORAL ARGUMENTS .                         .       .       .   vi
    GROUNDS FOR REVIEW            .       .              .   .   .       .       .   1
    APPELLANT’S FIRST GROUND FOR REVIEW
    DID THE COURT OF APPEALS ERR   IN FINDING THE
    EVIDENCE SUFFICIENT TO REVOKE THE APPELLANT’S
    COMMUNITY SUPERVISION?
    .   .   .    .    .   .   .    .   .    .    .                              2
    APPELLANT’S SECOND GROUND FOR REVIEW
    DID THE COURT OF APPEALS ERR IN FAILING TO FIND THAT
    THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
    COUNSEL AT THE PUNISHMENT PHASE OF HER HEARING?
    .    .    .    .    .     .    .     .    .     .    .                      5
    APPELLANT’S THIRD GROUND FOR REVIEW
    DID THE COURT OF APPEALS ERR IN FAILING TO FIND
    THAT THE APPELLANT RECEIVED CRUEL AND UNUSUAL
    PUNISHMENT?
    .    .    .   .    .   .    .    .    .   .     .                           9
    PRAYER FOR RELIEF . .         .       .              .   .   .       .       .   12
    CERTIFICATE OF SERVICE    .           .              .   .   .       .       .   12
    -ii-
    CERTIFICATE OF COMPLIANCE              .           .   .   .   .   .        13
    INDEX OF AUTHORITIES
    FEDERAL CASES
    Strickland v. Washington,
    
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984) .   .   7
    Solem v. Helm,
    
    463 U.S. 277
    , 
    103 S. Ct. 3001
    , 
    77 L. Ed. 2d 637
    (1983) .   .   10, 11
    STATE CASES
    Curry v. State,
    
    910 S.W.2d 490
    , 497 (Tex. Crim. App. 1995)       .   .   .   9
    Hernandez v. State,
    
    726 S.W.2d 53
    , 55 (Tex. Crim. App. 1986)          .   .   .   7
    Ingham v. State,
    
    679 S.W.2d 503
    (Tex. Crim. App. 1984).           .   .   .   7
    Jackson v. State,
    
    645 S.W.2d 303
    , 305 (Tex. Crim. App. 1983)           .   .   2
    Long v. State,
    
    764 S.W.2d 30
    (Tex. App. – San Antonio 1989, pet. ref’d)    6
    Moore v. State,
    
    605 S.W.2d 924
    , 926 (Tex. Crim. App. 1980)           .   .   7
    Moore v. State,
    
    700 S.W.2d 193
    (Tex. Crim. App. 1985) .          .   .   .   7
    -iii-
    FEDERAL STATUTES
    U.S. Const. amends. 6 & 14           .   .          .   .   .    .   .   7
    STATE STATUTES
    Tex. Const. art. I. secs. 10 & 19    .   .          .   .   .    .   .   7
    Tex. R. App. p 33.1(a) (Vernon Pamph. 2015)         .   .   .    .   .   9
    Tex. R. App. P. 38.1(a), (Vernon Pamph. 2015)           .   .    .   .   i
    Tex. R. App. P. Ann. 66.3 (a), ( c) & (f) (Vernon Pamph. 2015)   .       2, 5, 9
    Tex. R. App. P. Ann. 68 (Vernon Pamph. 2015)            .   .    .   .   iv
    Tex. R. App. P. Ann. 69.1 (Vernon Pamph. 2015)          .   .    .   .   4,8, 11
    Tex.R. Crim. Evid. 103(d)(Vernon Pamph. 2015)           .   .    .   .   9
    -iv-
    PETITION FOR DISCRETIONARY REVIEW
    TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
    DAWN PATRICE MOORE, the Appellant, files her petition for discretionary
    review pursuant to Rule 68 of the Texas Rules of Appellate Procedure requesting the
    Court to review and thereafter reverse the opinion issued by the Fourteenth Court of
    Appeals in Cause Number 14-14-00350-CR, Moore v. State, and would show as
    follows:
    STATEMENT OF THE NATURE OF THE CASE
    This appeal lies from appellant's conviction in The State of Texas vs. DAWN
    MOORE, Cause No. 1294531 in the 263RD         Judicial District Court, Harris County,
    Texas. The record reflects the Defendant plead guilty to Possession of a Controlled
    Substance, (Codeine), 200 - 400 grams, and was placed on Deferred Adjudication
    Probation for three years. (Clk’s.R. -11, 12).    On April 9, 2014, a Motion to
    Adjudicate Hearing was held, the Court found the Defendant guilty and sentenced
    her to 4 years T.D.C..   No Motion for New Trial was filed. Notice of Appeal was
    filed on April 11, 2014. An Amended Notice of Appeal was filed April 16, 2014.
    This Court has jurisdiction pursuant to Tex. R. App. P. 26.2(a)(Vernon Pamphlet
    2015).
    -v-
    STATEMENT OF PROCEDURAL HISTORY
    The Court of Appeals affirmed appellant’s conviction on July 9, 2015.
    STATEMENT REGARDING ORAL ARGUMENTS
    Appellant requests oral argument.
    -vi-
    GROUNDS FOR REVIEW
    APPELLANT’S FIRST GROUND FOR REVIEW
    DID THE COURT OF APPEALS ERR IN FINDING THE EVIDENCE SUFFICIENT
    TO REVOKE THE APPELLANT’S COMMUNITY SUPERVISION?
    APPELLANT’S SECOND GROUND FOR REVIEW
    DID THE COURT OF APPEALS ERR IN FAILING TO FIND THAT THE
    APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE
    PUNISHMENT PHASE OF HER HEARING?
    APPELLANT’S THIRD GROUND FOR REVIEW
    DID THE COURT OF APPEALS ERR IN FAILING TO FIND THAT THE
    APPELLANT RECEIVED CRUEL AND UNUSUAL PUNISHMENT?
    1
    APPELLANT'S FIRST GROUND FOR REVIEW
    DID THE COURT OF APPEALS ERR IN FINDING THE EVIDENCE SUFFICIENT TO
    REVOKE THE APPELLANT’S COMMUNITY SUPERVISION?
    Reasons For Granting This Petition
    This Court should grant this petition on the grounds that 1) the Justices of the
    Court of Appeals have disagreed on a material question of law, 2) the Court of
    Appeals has decided an important question of state or federal law in a way that
    conflicts with applicable decisions of the Court of Criminal Appeals or the Supreme
    Court of the United States and 3) the Court of Appeals has so far departed from the
    accepted and usual course of judicial proceedings as to call for an exercise of the
    Court of Criminal Appeals’ power of supervision.      Tex. R. App. P. Ann. 66.3(a),
    ( c) & (f) (Vernon Pamph. 2015).
    Specifically, appellant complains that the trial court had insufficient evidence
    to revoke her community supervision and abused its discretion in revoking her
    community supervision. Jackson v. State, 
    645 S.W.2d 303
    , 305 (Tex. Crim. App.
    1983).
    The record reflects that no law violation or crime occurred, but rather, a family
    squabble which arose because the appellant, who was taking care of her siblings
    while her mother was in Afghanistan, pawned her mother’s jewelry in an effort to
    keep up with expenses. Even after they came to an agreement wherein the appellant
    2
    agreed to pay her mother (the complainant) back, and the appellant’s mother filed
    charges against the appellant.
    The record reflects that the complainant’s reputation for truthfulness was
    “mostly bad”. (R.R.II.- 52).
    The record reflects: 1) the appellant pawned her mother’s jewelry with her
    mother’s permission, (R.R.II.- 63), 2) the appellant was not found guilty of theft,
    and 3) the record does not contain a judgment for theft. Further, the record reflects
    that the appellant lacked criminal intent, and pawned her mother’s jewelry out of
    necessity to keep up with expenses while taking care of her siblings. The appellant
    contends that she should not be punished for pawning her mother’s jewelry,
    particularly when the record reflects the appellant had an agreement with her mother
    to pay her back. (R.R.II.- 64).
    Finally, the appellant contends the “failure to complete community service as
    ordered” and “failure to report” allegations are minor, technical violations which
    could easily have been resolved by amending the conditions and extending the time
    the appellant was on probation.
    The record reflects that Ms. Rodriguez, the appellant’s probation officer,
    indicated that she knew the appellant was taking care of her siblings and was
    employed during the time she was supervising the appellant. (R.R.II.- 16). Ms.
    3
    Rodriguez stated that she never had any problems with the appellant, and that the
    appellant did not have any criminal history for being charged with theft or any
    convictions for theft. (R.R.II.- 16).
    The Court of Appeals affirmed appellant’s conviction on this ground. Opinion
    at 6.
    This Court should grant appellant's petition for discretionary review on this
    ground and order a full brief on the merits. Tex. R. App. P. 69.1 (Vernon Pamph.
    2015).
    4
    APPELLANT'S SECOND GROUND FOR REVIEW
    DID THE COURT OF APPEALS ERR IN FAILING TO FIND THAT THE
    APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE
    PUNISHMENT PHASE OF HER HEARING?
    Reasons For Granting This Petition
    This Court should grant this petition on the grounds that 1) the Justices of the
    Court of Appeals have disagreed on a material question of law, 2) the Court of
    Appeals has decided an important question of state or federal law in a way that
    conflicts with applicable decisions of the Court of Criminal Appeals or the Supreme
    Court of the United States and 3) the Court of Appeals has so far departed from the
    accepted and usual course of judicial proceedings as to call for an exercise of the
    Court of Criminal Appeals’ power of supervision.       Tex. R. App. P. Ann. 66.3(a),
    ( c) & (f) (Vernon Pamph. 2015).
    Appellant contends that 1) Defense counsel’s failure to have the appellant
    pled “Not True” to the allegations that she violated the terms of her probation after
    Defense counsel waived the reading of the Motion to Adjudicate,            2) Defense
    counsel’s stipulation that appellant      failed to report, 3)     Defense counsel’s
    unawareness of appellant’s failure to complete community service and 4) a judgment
    that reflects appellant pled “true” to all allegations that she violated her probation,
    is direct evidence that counsel was not functioning as the "counsel" guaranteed by
    5
    the Sixth Amendment.
    Perhaps the most flagrant instance of ineffective assistance of counsel occurred
    where the record reflects that defense counsel interrupted the Probation Officer’s
    testimony to stipulate to the allegation of failure to report in March:
    Defense Counsel: May I interrupt one second? The allegation of failure to
    report on March, we want to stipulate to that rather than have her go through
    all that. (R.R.II.- 7).
    In Long v. State, the San Antonio Court of Appeals noted, “It is objectively
    unreasonable for counsel to stipulate to evidence that demolishes the defense he has
    proffered. A stipulation which destroys appellant’s only defense cannot be classified
    as ‘trial strategy.’ Trial counsel’s conduct was objectively deficient.” Long v. State,
    
    764 S.W.2d 30
    (Tex. App. – San Antonio 1989, pet. ref’d).
    Appellant contends that stipulating to a “failure to report” can be, to a Motion
    to Adjudicate Hearing, what conceding a defendant’s guilt is to a trial. One failure
    to report is all that is required for the Court to adjudicate a probationer’s guilt and
    sentence her to prison, particularly if no good reason such as, “the appellant was
    hospitalized”, is offered to explain the failure to report. See Moses v. State, 
    590 S.W.2d 590
    S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979), (holding that a
    plea of true to any one of the alleged violations is sufficient to support the trial court’s
    6
    order of revocation); see also, Moore v. State, 
    605 S.W.2d 924
    , 926 (Tex. Crim.
    App. 1980), (holding that one sufficient ground for revocation will support the court’s
    order to revoke probation).
    Further, the record reflects that counsel failed to render effective services
    when defense counsel failed to adequately prepare the appellant to testify. Appellant
    contends that, rather than tell the Court she “did not recall” failing to report, but
    would “not deny” it, the appellant should have been instructed to testify to the truth,
    and not to speculate. If the truth was that the appellant did not recall, which is likely
    since no reason for failing to report was given or recorded by the probation officer,
    then the appellant’s testimony should have been that she did not recall failing to
    report.
    Appellant was entitled to effective assistance of counsel as a matter of federal
    and state constitutional law. U.S. Const. amends. 6 & 14; Tex. Const. art. I. secs. 10
    & 19; Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984); Moore v. State, 
    700 S.W.2d 193
    (Tex. Crim. App. 1985); Ingham v. State,
    
    679 S.W.2d 503
    (Tex. Crim. App. 1984).
    Appellant contends that these errors demonstrate (1) that appellant's counsel's
    performance was undeniably deficient, i.e., counsel's errors were so serious that he
    was not functioning as the "counsel" guaranteed by the Sixth Amendment, and (2)
    7
    the deficient performance prejudiced the defense, i.e., deprived her of a fair hearing.
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984); see
    Hernandez v. State, 
    726 S.W.2d 53
    , 55 (Tex. Crim. App. 1986).
    The Court of Appeals affirmed appellant’s conviction on this ground. Opinion
    at 8.
    This Court should grant appellant's petition for discretionary review on this
    ground and order a full brief on the merits. Tex. R. App. P. 69.1 (Vernon Pamph.
    2015).
    8
    APPELLANT'S THIRD GROUND FOR REVIEW
    DID THE COURT OF APPEALS ERR IN FAILING TO FIND THAT THE
    APPELLANT RECEIVED CRUEL AND UNUSUAL PUNISHMENT?
    Reasons For Granting This Petition
    This Court should grant this petition on the grounds that 1) the Justices of the
    Court of Appeals have disagreed on a material question of law, 2) the Court of
    Appeals has decided an important question of state or federal law in a way that
    conflicts with applicable decisions of the Court of Criminal Appeals or the Supreme
    Court of the United States and 3) the Court of Appeals has so far departed from the
    accepted and usual course of judicial proceedings as to call for an exercise of the
    Court of Criminal Appeals’ power of supervision. Tex. R. App. P. Ann. 66.3(a),©)
    & (f) (Vernon Pamph. 2015).
    Specifically, appellant complains that she received cruel and unusual
    punishment in violation of the Eighth Amendment.
    Appellant is aware that failure to raise an Eighth Amendment objection at trial
    prevents making any such claim on appeal. See Tex. R. App. p 33.1(a); Curry v.
    State, 
    910 S.W.2d 490
    , 497 (Tex. Crim. App. 1995).
    However, the Texas Rules of Evidence provide that in a criminal case, nothing
    in the rules precludes taking notice of fundamental errors affecting substantial rights
    although they were not brought to the attention of the court. T.R. Crim. Evid. 103(d).
    9
    Appellant contends that her sentence is disproportionate to the offense for
    which she was charged and violates the Eighth Amendment to the United States
    Constitution prohibiting cruel and unusual punishment, where the record reflects that
    she received a four year prison sentence from the court. Appellant contends that
    there is evidence in the record, as required by Solem v. Helm, 
    463 U.S. 277
    (1983),
    reflecting sentences imposed on similar offenses in Texas or other jurisdictions. See
    Solem v. Helm, 
    463 U.S. 277
    , 
    103 S. Ct. 3001
    , 
    77 L. Ed. 2d 637
    (1983).
    The appellant contends that a four year sentence is grossly disproportionate
    to the crime when compared to the gravity of the offense. The record reflects that the
    appellant was on probation for only three years, (Clk’s.R. -11, 12), and the “new law
    violation” that allegedly occurred while appellant was on probation was not proven.
    The record reflects: 1) the appellant pawned her mother’s jewelry with her mother’s
    permission, (R.R.II.- 63), 2) the appellant was not found guilty of theft, and 3) the
    record does not contain a judgment for theft.
    Further, appellant contends that there is evidence in the record, as required by
    Solem v. Helm, 
    463 U.S. 277
    (1983), reflecting sentences imposed on similar
    offenses in Texas or other jurisdictions. Appellant contends that she should have
    been reinstated on probation, because the record reflects that the appellant had “no
    problems” with her probation officer. (R.R.II.- 15). Ms. Rodriguez, the probation
    10
    officer, indicated that she knew that the appellant is a single parent. (R.R.II.- 15).
    Ms. Rodriguez indicated that she knew the appellant was taking care of her siblings
    and was employed during the time she was supervising the appellant. (R.R.II.- 16).
    Ms. Rodriguez stated that she never had any problems with the appellant, and that the
    appellant did not have any criminal history for being charged with theft or any
    convictions for theft. (R.R.II.- 16). See Solem v. Helm, 
    463 U.S. 277
    , 
    103 S. Ct. 3001
    ,
    
    77 L. Ed. 2d 637
    (1983).
    Ms. Rodriguez’ testimony illustrates a basis for reinstating the appellant on
    probation because “similar” probationers that don’t have “problems” with their
    probation officers are typically reinstated on probation, with amended conditions.
    The Court of Appeals affirmed appellant’s conviction on this ground. Opinion
    at 9.
    This Court should grant appellant's petition for discretionary review on this
    ground and order a full brief on the merits. Tex. R. App. P. 69.1 (Vernon Pamph.
    2015).
    11
    PRAYER FOR RELIEF
    WHEREFORE PREMISES CONSIDERED, appellant prays this Honorable
    Court to consider the grounds for review raised herein, to grant this petition for
    discretionary review, and to order a full and complete hearing on the merits and with
    briefs.
    Respectfully submitted,
    /s/Sharon Slopis
    SHARON E. SLOPIS
    P.O. Box 980803
    Houston, Texas77098
    (713) 529-0771
    T.B.N.: 18511300
    ATTORNEY FOR APPELLANT
    CERTIFICATE OF SERVICE
    I hereby certify that on this 22nd day of July, 2015, a true and correct copy of
    the foregoing brief was hand delivered to the Clerk of the Court of Appeals to be
    deposited in the box reserved for the Harris County District Attorney's Office, and a
    copy mailed to the State Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711.
    /s/Sharon Slopis
    SHARON E. SLOPIS
    12
    CERTIFICATE OF COMPLIANCE
    I hereby certify that this, the foregoing Petition for Discretionary Review,
    Court of Appeals Cause Number 14-13-00350-CR, Moore v. State, contains 2,711
    words, (i.e., less that the 4,500 word limit), in compliance with Rule 9.4(i)(3) of the
    Texas Rules of Appellate Procedure.
    /s/ Sharon Slopis
    SHARON E. SLOPIS
    13
    Affirmed as Reformed and Memorandum Opinion filed July 9, 2015.
    In The
    Fourteenth Court of Appeals
    NO. 14-14-00350-CR
    DAWN PATRICE MOORE, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 263rd District Court
    Harris County, Texas
    Trial Court Cause No. 1294531
    MEMORANDUM                       OPINION
    Appellant Dawn Patrice Moore appeals from the trial court’s revocation of
    her deferred adjudication community supervision. In four issues, appellant
    contends that (1) the evidence is insufficient to support the trial court’s revocation
    of her community supervision; (2) her counsel rendered ineffective assistance of
    counsel; (3) her sentence constitutes cruel and unusual punishment; and (4) this
    court should reform the judgment to correctly reflect her plea and delete the $500
    fine. We reform the trial court’s judgment and affirm the judgment as reformed.
    BACKGROUND
    In 2011, appellant was indicted for the felony offense of possession with
    intent to deliver a controlled substance. See Tex. Health & Safety Code §
    481.114(a). Appellant pleaded guilty to the reduced charge of possession of a
    controlled substance, namely, codeine in an amount of 200 grams or more, but less
    than 400 grams. See 
    id. § 481.118(a),
    (d). The trial court deferred adjudicating
    appellant’s guilt and placed her on community supervision for three years.
    On January 16, 2014, the State filed a motion to adjudicate guilt, alleging six
    violations of the terms and conditions of her community supervision. The State
    alleged that appellant (1) committed a criminal offense;1 (2) failed to report to her
    community supervision officer; (3) failed to complete 180 hours of community
    service; (4) failed to pay a supervision fee; (5) failed to pay a fine and court costs;
    and (6) failed to pay a laboratory processing fee. The trial court held a hearing and
    appellant waived arraignment on the State’s motion to adjudicate.2
    Adelina Rodriguez, appellant’s probation officer, testified that appellant was
    required to report to her monthly but failed to report once in March 2013. During
    Rodriguez’s testimony, appellant’s counsel stipulated to the failure to report.
    Rodriguez also stated that appellant had only completed 70 hours of community
    service, and should have completed all 180 hours by the time of the hearing.
    1
    The State’s motion to adjudicate alleges that appellant violated her community
    supervision by:
    Committing an offense against the State of Texas, to-wit; on or about, OCTOBER
    20, 2013, in HARRIS County, Texas, the Defendant did then and there
    unlawfully, appropriate, by acquiring and otherwise exercising control over
    property, namely, FOUR PAIRS OF EARRINGS, owned by ELIZABETH
    CHANEY, hereafter styled the Complainant, of the value of over one thousand
    five hundred dollars and under twenty thousand dollars, with the intent to deprive
    the Complainant of the property.
    2
    Although the judgment reflects that appellant pleaded “true” to the motion to adjudicate,
    appellant did not enter a plea at the hearing.
    2
    Rodriguez stated that she received notice in January 2014 that appellant may have
    violated her community supervision by committing theft.
    Officer Clinton Edwards testified that in January 2014, he began
    investigating appellant for theft of several pieces of jewelry that appellant’s mother
    had reported missing. Officer Edwards found pawn receipts in appellant’s name
    and saw that the jewelry pawned by appellant matched the jewelry her mother
    reported missing to the police. Defense counsel stipulated that appellant pawned
    the jewelry. Officer Edwards testified that before going to the pawnshop, he asked
    appellant whether she knew anything about the missing jewelry and she stated that
    “she didn’t know anything about it.”
    Appellant’s mother, Elizabeth Chaney, testified that she was out of the
    country for work and came home in December to find that her jewelry was
    missing. She stated that the jewelry was worth approximately $83,600. Chaney
    spoke to the appellant, who admitted that she took the jewelry but told her it was
    gone and that she sold it for $6,000. Chaney stated that she never gave appellant
    permission to take her jewelry or to pawn those items. Chaney filed a police report
    in January.
    Appellant testified that her mother gave her permission to pawn the jewelry
    because she was having a difficult time taking care of her daughter, sister, and
    brother while her mother was out of the country. Appellant stated that she and her
    mother discussed the situation on December 23 and they worked out an agreement
    in which appellant would pay her mother back. Appellant admitted to missing one
    probation meeting and admitted to being behind on her community service hours.
    The trial court found three of the State’s alleged violations true, revoked
    appellant’s community supervision, and assessed punishment at four years in
    prison.
    3
    ISSUES AND ANALYSIS
    In four issues, appellant contends that (1) the evidence is insufficient to
    support the trial court’s revocation of her community supervision; (2) her counsel
    rendered ineffective assistance of counsel during the hearing on the motion to
    adjudicate; (3) her four-year sentence was a form of cruel and unusual punishment;
    and (4) the court should reform the judgment to correctly reflect appellant’s plea
    and delete the $500 fine.
    I.     Sufficiency of the Evidence
    In her first issue, appellant asserts that the evidence is insufficient to support
    the trial court’s revocation of her community supervision because (1) appellant
    testified that she had her mother’s permission to pawn the jewelry; (2) she did not
    recall missing a reporting date with her probation officer; and (3) she performed at
    least seventy hours of community service.
    We review a trial court’s decision to revoke community supervision for an
    abuse of discretion. Rickels v. State, 
    202 S.W.3d 759
    , 763 (Tex. Crim. App. 2006).
    In a revocation proceeding, the State must prove by a preponderance of the
    evidence that the defendant violated the terms and conditions of community
    supervision. Cobb v. State, 
    851 S.W.2d 871
    , 873 (Tex. Crim. App. 1993). A
    preponderance of the evidence means “that greater weight of the credible evidence
    which would create a reasonable belief that the defendant has violated a condition
    of his probation.” 
    Rickels, 202 S.W.3d at 763
    −64. The trial court is the sole judge
    of the credibility of the witnesses and the weight to be given their testimony.
    Garrett v. State, 
    619 S.W.2d 172
    , 174 (Tex. Crim. App. [Panel Op.] 1981). We
    examine the evidence in the light most favorable to the trial court’s ruling.
    Cardona v. State, 
    665 S.W.2d 492
    , 493 (Tex. Crim. App. 1984). If the State fails to
    meet its burden of proof, the trial court abuses its discretion by revoking the
    4
    community supervision. 
    Id. at 493−94.
    When a trial court finds several violations of community supervision
    conditions, we will affirm if the proof of any single allegation is sufficient. See
    Garcia v. State, 
    387 S.W.3d 20
    , 26 (Tex. Crim. App. 2012). Thus, to prevail on
    appeal, a defendant must successfully challenge all of the findings that support the
    trial court’s revocation order. See 
    id. Appellant argues
    that the evidence is insufficient to show she committed a
    criminal offense because she had her mother’s permission to pawn the jewelry and
    she had an agreement with her mother to pay her back. Appellant also points to one
    witness’s testimony that appellant’s mother’s reputation for honesty was bad.
    Although appellant testified that she had her mother’s permission to pawn the
    jewelry, her mother, Elizabeth, stated that she did not give appellant permission.
    Officer Edwards investigated the theft by speaking with Elizabeth and confirmed
    that appellant pawned the jewelry and appellant initially denied knowing anything
    about it.
    As the factfinder of the revocation hearing, the trial court was the sole judge
    of each witness’s credibility and the weight to be given to his or her testimony; as
    such the court was free to believe or disbelieve all or part of any witness’s
    testimony in resolving conflicts in the evidence. See Slater v. State, 
    646 S.W.2d 528
    , 530 (Tex. App.—Houston [1st Dist.] 1982, pet. ref’d). The trial court could
    have reasonably believed Elizabeth and the police officer over appellant and the
    other witnesses.
    Further, appellant’s probation officer testified that appellant missed one
    reporting date in March of 2013. Appellant stated that she could not recall missing
    a reporting date but also did not deny it. When the prosecutor asked appellant
    about missing a reporting date, she agreed that she missed a date. Further,
    5
    appellant’s counsel stipulated to the fact that she missed her reporting date in
    March. Generally, the appellant’s failure to report is a sufficient basis for the trial
    court’s decision to revoke appellant’s community supervision. See Greer v. State,
    
    999 S.W.2d 484
    , 489 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (no abuse
    of discretion to revoke for failing to report for a single month).
    Rodriguez also testified that appellant had only completed 70 out of the
    required 180 hours of community supervision. Appellant admitted that she was
    behind on her community service hours but claimed that it was because she did not
    have transportation and she was required to go far out of town.
    Based on the evidence in the record and the required standard of review, we
    conclude that the trial court did not abuse its discretion for revoking appellant’s
    deferred adjudication community supervision based on a finding that she
    committed a criminal offense, failed to report to her probation officer, and failed to
    complete her community service.
    We overrule appellant’s first issue.
    II.    Ineffective Assistance of Counsel
    In her second issue, appellant contends that she received ineffective
    assistance of counsel during her hearing on the motion to adjudicate because her
    counsel (1) failed to have appellant plead “not true” to the State’s allegations; (2)
    stipulated to the failure to report; (3) failed to adequately prepare appellant to
    testify; (4) failed to adequately prepare for the hearing; and (5) failed to object to
    the sentence as being cruel and unusual punishment.
    We examine claims of ineffective assistance of counsel by applying the two-
    prong test set forth in Strickland v. Washington, 
    466 U.S. 668
    (1984). See Davis v.
    State, 
    278 S.W.3d 346
    , 352 (Tex. Crim. App. 2009). Under Strickland, appellant
    must prove by a preponderance of the evidence that (1) counsel’s performance fell
    6
    below an objective standard of reasonableness; and (2) counsel’s deficient
    performance prejudiced the defense, resulting in an unreliable or fundamentally
    unfair outcome of the proceeding. 
    Id. When the
    record is silent as to trial counsel’s strategy, we will not conclude
    that appellant received ineffective assistance unless the challenged conduct was
    “so outrageous that no competent attorney would have engaged in it.” Goodspeed
    v. State, 
    187 S.W.3d 390
    , 392 (Tex. Crim. App. 2005). Rarely will the trial record
    contain sufficient information to permit a reviewing court to fairly evaluate the
    merits of such a serious allegation. See Bone v. State, 
    77 S.W.3d 828
    , 833 (Tex.
    Crim. App. 2002).
    Appellant first contends that counsel was ineffective because she failed to
    have appellant enter a plea of “not true” to the State’s allegations. However, there
    is no requirement that a defendant on community supervision enter a plea to the
    allegations in the motion to adjudicate. See Detrich v. State, 
    545 S.W.2d 835
    , 837
    (Tex. Crim. App. 1977) (holding that due process does not require a plea be
    entered in a motion to revoke community supervision hearing); see also Anthony v.
    State, 
    962 S.W.2d 242
    , 246 (Tex. App.—Fort Worth 1998, no pet.) (“[T]he Court
    of Criminal Appeals has held that due process does not even require appellant be
    given the right to enter a plea to an alleged community supervision violation.”).
    Thus, counsel was not deficient in failing to have appellant enter a plea at the
    hearing.
    Appellant asserts that counsel was ineffective by stipulating to the State’s
    allegation that appellant failed to report to her probation officer. As recited above,
    sufficient proof of one violation is sufficient to support a revocation. Appellant
    admitted, and her probation officer confirmed, that she failed to complete the
    requisite hours of community service. Appellant also admitted that she failed to
    report to her probation officer on one occasion in March 2013. Thus, even if
    7
    counsel’s performance was deficient, the outcome of the proceeding would have
    been the same.
    Although appellant claims that counsel failed to properly prepare for the
    revocation hearing and failed to properly prepare her to testify, the record does not
    reflect what preparation, if any, counsel undertook before the revocation hearing.
    Without support in the record for appellant’s assertions regarding lack of
    preparation, she cannot demonstrate ineffectiveness in this regard. See Thompson
    v. State, 
    9 S.W.3d 808
    , 813 (Tex. Crim. App. 1999) (providing that “[a]ny
    allegation of ineffectiveness must be firmly founded in the record”).
    Appellant also argues that counsel was ineffective based on counsel’s failure
    to object that appellant’s sentence was a form of cruel and unusual punishment.
    Before this court may conclude counsel was ineffective for failing to make an
    objection, appellant must show the trial court would have erred by overruling the
    objection. See Vaughn v. State, 
    931 S.W.2d 564
    , 566 (Tex. Crim. App. 1996) (per
    curiam). Appellant cannot make this showing because her sentence lies within the
    punishment range, and therefore is not cruel and unusual. See Jagaroo v. State, 
    180 S.W.3d 793
    , 800 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). It is not
    ineffective assistance for counsel to forego making frivolous arguments and
    objections. 
    Id. Thus, counsel
    was not deficient in failing to object to appellant’s
    sentence.
    We overrule appellant’s second issue.
    III.   Cruel and Unusual Punishment
    In her third issue, appellant argues that her sentence constitutes cruel and
    unusual punishment because it is grossly disproportionate to the crime when
    compared to the gravity of the offense and she could have been reinstated on
    probation instead of being sentenced to prison. Appellant concedes in her brief that
    8
    her counsel did not object to the sentence at the hearing and that failure to object
    prevents making any such claim on appeal. Appellant argues, however, that her
    sentence constitutes fundamental error that may be raised for the first time on
    appeal. See Tex. R. Evid. 103(e).
    A defendant must make a timely, specific objection at trial to preserve error
    for review. Tex. R. App. P. 33.1(a). Generally, a party’s failure to make a timely
    objection waives the error. Collins v. State, 
    378 S.W.3d 629
    , 631 (Tex. App.—
    Houston [14th Dist.] 2012, no pet.). Even constitutional errors may be waived by
    failure to object at trial. Broxton v. State, 
    909 S.W.2d 912
    , 918 (Tex. Crim. App.
    1995).
    Texas courts have established that failure to raise an Eighth Amendment
    cruel and unusual punishment claim at the trial level waives the claim on appeal.
    See Saldano v. State, 
    70 S.W.3d 873
    , 891 (Tex. Crim. App. 2002); Arriaga v.
    State, 
    335 S.W.3d 331
    , 334 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
    Such claims have been held not to be so fundamental as to relieve the appellant of
    the necessity of a timely, specific objection at trial. See Curry v. State, 
    910 S.W.2d 490
    , 497−98 (Tex. Crim. App. 1995). Because appellant did not object to her
    sentence on cruel and unusual punishment grounds, appellant has failed to preserve
    error for review.
    We overrule appellant’s third issue.
    IV.    Modification of the Judgment
    In her fourth issue, appellant asks this court to reform the judgment to
    correctly reflect appellant’s plea as “N/A” and to delete the $500 fine. The State
    concedes that the judgment should be reformed.
    The record reflects that appellant waived arraignment on the State’s motion
    to adjudicate and did not enter a plea at the hearing. The record also reflects that
    9
    the trial court did not orally pronounce the $500 fine listed in the judgment. The
    judgment, however, incorrectly lists a $500 fine and appellant’s plea to the motion
    to adjudicate as “true.”
    “[A]n appellate court has authority to reform a judgment to include an
    affirmative finding to make the record speak the truth when the matter has been
    called to its attention by any source.” French v. State, 
    830 S.W.2d 607
    , 609 (Tex.
    Crim. App. 1992) (citing Asberry v. State, 
    813 S.W.2d 526
    , 529 (Tex. App.—
    Dallas 1991, pet. ref’d) (en banc)); see also Haggerty v. State, 
    429 S.W.3d 1
    , 12
    (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). We conclude that the record
    supports modification of the judgment because it incorrectly reflects that appellant
    pleaded “true” and that the trial court pronounced a $500 fine. Accordingly, we
    reform the judgment to reflect appellant’s plea to the motion to adjudicate as
    “N/A” and the fine as “$0.”
    We sustain appellant’s fourth issue.
    CONCLUSION
    We reform the trial court’s judgment and affirm the judgment as reformed.
    /s/    Ken Wise
    Justice
    Panel consists of Justices Christopher, Donovan, and Wise.
    Do Not Publish — TEX. R. APP. P. 47.2(b).
    10