Melvia Smith v. State ( 2008 )

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

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No. 06-08-00021-CR ______________________________



MELVIA SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 115th Judicial District Court Marion County, Texas Trial Court No. F13,459

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

MEMORANDUM OPINION

Melvia Smith appeals the revocation of her community supervision for the offense of intoxication assault. See Tex. Penal Code Ann. § 49.07 (Vernon Supp. 2007). ⁽¹⁾ She was sentenced September 13, 2005, to five years' imprisonment (probated for five years), court costs, attorney's fees, a $250.00 fine, and $8,000.00 restitution. The costs, fine, and restitution were not probated. Her community supervision was revoked January 28, 2008, and she was sentenced to two years' imprisonment.

Smith contends the evidence is legally and factually insufficient to support the revocation of her community supervision.

The State alleged in its petition to revoke that Smith had violated five separate conditions of her supervision by (1) failing to report to her supervision officer for the months of June, July, August, September, and November of 2007; (2) failing to avoid injurious and vicious habits by using marihuana and cocaine; (3) failing to perform 160 hours of community service; (4) failing to pay court costs, fine, attorney's fees, and restitution at the rate of $160.00 per month; and (5) failing to attend and successfully complete the driving while intoxicated repeat offender program.

Smith pled "true" to all five allegations. After her pleas of "true," Smith stated she was disabled and, due to other circumstances, had been unable to pay the restitution and other fees due. Although inability to pay is an affirmative defense, triggering a requirement for the State to prove by a preponderance of the evidence (1) that Smith had the ability to make the payments required and (2) that her failure to make such payments was intentional, see Fletcher v. State, 547 S.W.2d 634, 636 (Tex. Crim. App. 1977), we need not reach the issue of whether the State proved Smith was able to pay the restitution and intentionally failed to make the payments. A plea of "true" to even one allegation is sufficient to support a judgment revoking community supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); Lewis v. State, 195 S.W.3d 205, 209 (Tex. App.--San Antonio 2006, no pet.); see Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979). Here, Smith pled "true" to all five allegations contained in the State's motion to revoke. In light of the fact that there are uncontested grounds to support the revocation of community supervision, the fact that she raised any affirmative defense does not affect the outcome of the proceeding.

We overrule this point of error.

In her second point of error, Smith alleges the trial court abused its discretion by revoking her community supervision. As stated above, Smith pled "true" to all five allegations contained in the State's petition to revoke. "Such plea was alone sufficient to support revocation." Jiminez v. State, 552 S.W.2d 469, 472 (Tex. Crim. App. 1977).

The trial court did not abuse its discretion in revoking Smith's community supervision.

We overrule this point of error.

We affirm the judgment of the trial court.

Bailey C. Moseley

Justice

Date Submitted: July 7, 2008

Date Decided: July 8, 2008

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1. We note that the judgment originally placing Smith on community supervision lists "Tex. Penal Code Ann. § 49.08," which is the wrong statute for the offense. This error was corrected on the judgment revoking her community supervision.

activity resulted in injury to an innocent victim I am going to stack these sentences [sic] and run them [sic] consecutive with 27,354-A, 356-A; 358-A; 360-A and 362-A."

When a written stacking order insufficiently reflects an oral order, but the oral order or other evidence from the penalty hearing is sufficient, an appellate court can reform the judgment to reflect a proper stacking order. Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986). An 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).

Therefore, the judgment is reformed to reflect that Reynolds's ten-year punishment for assault on a public servant pronounced on July 6, 2000, in cause number 25,862-A in the 188th Judicial District Court, Gregg County, is to run consecutive to his punishments in cause numbers 27,356-A (aggravated assault, ten years); 27,358-A (aggravated assault, ten years); 27,360-A (aggravated assault, ten years); 27,354-A (aggravated assault, fifteen years); and 27,362-A (unlawful possession of a firearm by a felon, ten years) pronounced in the 188th Judicial District Court, Gregg County, on July 6, 2000. Banks, 708 S.W.2d at 461. As reformed, the judgment is affirmed.

Ben Z. Grant

Justice

Date Submitted: October 15, 2001

Date Decided: October 16, 2001

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