David Duane Hodges v. State ( 2003 )

NO. 12-02-00136-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAVID DUANE HODGES,

§ APPEAL FROM THE 114TH

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ SMITH COUNTY, TEXAS MEMORANDUM OPINION

Appellant David Duane Hodges appeals from his theft conviction. After revoking Appellant's deferred adjudication community supervision, the trial court assessed punishment at seven and one-half years of confinement and restitution in the amount of $48,734.00. In a single issue, Appellant asserts the judgment is void. We affirm.

On June 6, 2001, Appellant was placed on deferred adjudication community supervision after District Judge Cynthia Kent found the evidence sufficient to support a finding of guilt for third degree felony theft. Less than a year later, the State filed an application to proceed to final adjudication. A hearing was held on April 1 and 2, 2001, before visiting Judge Harold Clapp. Judge Clapp found that Appellant violated the terms of his probation and granted the State's application to proceed to final adjudication. After a punishment hearing, Judge Clapp pronounced Appellant's sentence in open court. The final judgment was signed by Judge Kent.

In his sole issue, Appellant contends the judgment is void because it was signed by a judge who did not hear the evidence. He asserts that Judge Kent had no contact or guidance from Judge Clapp. He also argues that Judge Kent included findings in the judgment that are contrary to or at variance with Judge Clapp's findings.

It is not always necessary for the judge who presides over the trial to actually sign the judgment. The duly elected judge of the trial court may sign any written judgment in a trial which was presided over by a properly assigned visiting judge who orally pronounced judgment. Sparkman v. State, 997 S.W.2d 660, 664 (Tex. App.-Texarkana 1999, no pet.). Judge Kent is the duly elected judge of the 114th District Court in Smith County. Judge Clapp was properly assigned as a visiting judge in the 114th District Court. Therefore, it was not improper for Judge Kent to sign the judgment after Judge Clapp presided over the trial and pronounced the sentence. Id.

Neither do the recitations in the judgment make it void. One of the conditions of Appellant's probation required him to provide a copy of the conditions of probation to a family member or relative of any individual over the age of 75 for whom he did contract work. Judge Clapp found that Appellant had failed to provide Ruth Kinel, an individual over the age of 75 for whom he did contract work, with a copy of the conditions of probation. The judgment properly cites violation of this condition as a ground for revocation.

The judgment also states that Appellant's failure to pay restitution as ordered is a ground for revocation. Judge Clapp did not comment on this alleged ground for revocation. Even assuming this finding was erroneously included in the judgment, no reversible error is shown because the record supports an adequate ground to justify the revocation. See Deal v. State, 640 S.W.2d 664, 666 (Tex. App.-Houston [14th Dist.] 1982, no pet.) (Proof of any one of several alleged violations is sufficient to support order revoking probation even if defendant had affirmative defense to failure to pay restitution and supervisory fees.). Violation of only one condition of probation is sufficient to warrant revocation. Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. 1978). Accordingly, erroneous inclusion of another ground for revocation does not cause the judgment to be void. We overrule Appellant's sole issue.

We affirm the trial court's judgment.

SAM GRIFFITH

Justice

Opinion delivered July 9, 2003.

Panel consisted of Worthen, C.J., and Griffith, J.  

(DO NOT PUBLISH)