Leonardo Rivera Benitez, Jr. v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-180-CR
NO. 2-07-181-CR
LEONARDO RIVERA BENITEZ, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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Appellant Leonardo Rivera Benitez, Jr. was charged with burglary of a
building. He was also charged in a separate cause with indecency with a child.
Appellant entered into a plea bargain agreement in both causes and was placed
on deferred adjudication community supervision for five years for the burglary
charge and for six years for the indecency charge.
1
… See T EX. R. A PP. P. 47.4.
While Appellant was still on deferred adjudication community supervision
for both charges, the State filed a petition to proceed with adjudication in each
case. The State alleged that Appellant violated conditions of his community
supervision in that he failed to register as a sex offender on or about March 16,
2005; intentionally or knowingly caused physical contact with a minor by
touching her buttocks on or about October 16, 2005; was convicted of the
offense of “failure to identify giving false/fictitious info[rmation]” on October
16, 2006; was convicted of evading arrest/detention on October 16, 2006;
failed to report to his community supervision officer; failed to pay his fine; failed
to pay court costs; failed to pay various community supervision fees; failed to
notify his community supervision officer of a change of address; failed to pay
restitution; failed to complete his community service; failed to begin
psychological counseling for sex offenders; failed to submit a blood sample;
failed to complete a psychosexual evaluation; failed to complete a drug/alcohol
evaluation; and failed to participate in an anger management course.
Appellant pled true to all of the allegations against him but raised the
issue of his inability to pay. Appellant’s community supervision officer testified
about Appellant’s failure to meet the conditions of his community supervision.
The trial court granted the State’s petition and sentenced Appellant to two
2
years’ confinement on the burglary charge, ten years’ confinement on the
indecency with a child charge, and a $10,000 fine in each case.
In two issues, Appellant contends that the trial court abused its discretion
in assessing his punishment at ten years’ confinement for the indecency offense
and two years’ confinement for the burglary offense. While Appellant couches
his two issues in terms of punishment assessed, his argument makes clear that
he complains of the revocation of his deferred adjudication community
supervision. Former article 42.12, section 5(b), which governs these appeals,
prohibited an appellant from challenging on appeal the trial court’s decision to
adjudicate guilt.2
We note, however, that even in a “regular” community supervision case,
proof by a preponderance of the evidence of any one of the alleged violations
of the conditions of community supervision is sufficient to support a revocation
order.3 A plea of true to any alleged violation is sufficient to satisfy the State’s
2
… See Act of May 28, 1995, 74th Leg., R.S., ch. 318, § 53, 1995 Tex.
Gen. Laws 2734, 2750, amended by Act of May 28, 2007, 80th Leg., R.S.,
ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397 (current version at T EX. C ODE
C RIM. P ROC. A NN. art. 42.12, § 5(b) (Vernon Supp. 2007)).
3
… Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980);
Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980).
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burden as to that allegation.4 Because a single violation is a sufficient basis for
revocation, due process requires a specific finding on only one violation.5 Here,
Appellant’s plea of true to the allegations that he had committed new offenses
satisfied the State’s burden of proof as to those allegations and afforded him
due process.
Further, while he points out that he received the maximum confinement
for each offense, Appellant does not otherwise argue that the sentences are
excessive or disproportionate. We therefore hold that the trial court did not
abuse its discretion by granting the State’s petitions to adjudicate and
convicting and sentencing Appellant in each case. We overrule Appellant’s two
issues.
4
… See Watts v. State, 645 S.W.2d 461, 463 (Tex. Crim. App. 1983);
Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979).
5
… Lewis v. State, 195 S.W.3d 205, 209 (Tex. App.—San Antonio 2006,
no pet.).
4
Having overruled Appellant’s two issues, we affirm the trial court’s
judgments.
LEE ANN DAUPHINOT
JUSTICE
PANEL B: DAUPHINOT, GARDNER, and MCCOY, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: April 17, 2008
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