Marvin Yaster v. State ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00066-CR
______________________________
MARVIN YASTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 3rd Judicial District Court
Anderson County, Texas
Trial Court No. 29591
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Marvin Yaster pled guilty to aggravated assault of Carol Beningo with a deadly weapon
and received deferred adjudication community supervision for a period of five years.1 Under the
first condition of community supervision, Yaster was instructed not to commit an offense ―against
the laws of this State.‖ The State moved to revoke community supervision and proceed with
adjudication of guilt alleging, among other violations, that Yaster failed to comply with the first
ground of community supervision by committing family violence assault causing bodily injury to
Beningo and interfering with her ability to place an emergency 9-1-1 telephone call. After a
hearing, the trial court adjudicated Yaster‘s guilt for aggravated assault with a deadly weapon,
sentenced him to ten years‘ imprisonment, and ordered him to pay a $1,000.00 fine.2
Yaster complains that: (1) the trial court‘s judgment incorrectly reflects his plea of ―not
true‖ to allegations contained within the motion to adjudicate; (2) the trial court‘s judgment fails to
list the ground upon which community supervision was revoked; (3) the evidence was insufficient
to revoke community supervision; and (4) the trial court erred in failing to conduct a punishment
hearing after adjudication of guilt. We affirm the trial court‘s judgment, as modified.
1
Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV‘T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
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Judgments nunc pro tunc were entered reducing Yaster‘s sentence from fifteen years‘ imprisonment to ten years‘
imprisonment.
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I. Trial Court’s Written Order Referenced a Ground for Revocation of Community
Supervision
We first address Yaster‘s complaint that the trial court erred in failing to specify the ground
upon which it revoked community supervision and proceeded to adjudication. The transcript of
the hearing reveals that the trial judge did not orally pronounce the condition of community
supervision violated. The trial judge made only the following statement: ―I‘m going to grant the
State‘s Motion to Adjudicate. The prior order of this Court granting him probation is hereby
revoked. I hereby find and adjudge him guilty as charged of the offense of aggravated assault
with a deadly weapon.‖
Because this type of hearing is administrative in nature, procedural and evidentiary
requirements are not enforced as strictly as they would be in a criminal trial. Montoya v. State,
832 S.W.2d 138, 142 (Tex. App.—Fort Worth 1992, no pet.) (citing Bradley v. State, 564 S.W.2d
727, 729 (Tex. Crim. App. 1978), aff’d after abatement, 608 S.W.2d 652 (Tex. Crim. App. 1980)).
Statutes governing proceedings upon a motion to revoke community supervision and proceed to
adjudication do not require a trial court to orally pronounce its findings in support thereof, and
Yaster does not argue that an oral pronouncement was required. TEX. CODE CRIM. PROC. ANN.
art. 42.12, §§ 5(b), 21, 23 (Vernon Supp. 2010).
Instead, Yaster points to the transcript in support of his contention that ―none of the four
judgments signed by the trial court judge state any ground or grounds upon which the Appellant‘s
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community supervision was revoked.‖ However, the written judgment contains the following:
―Defendant violated the terms and conditions of community supervision as set out in the State‘s
ORIGINAL Motion to Adjudicate Guilt as follows: 1.‖ The number 1 corresponds with
paragraph 1 of the ―Motion to Proceed With Adjudication of Guilt and Sentence.‖ Thus, the trial
court found Yaster violated the first condition that he refrain from violating any law as alleged in
the motion to adjudicate. We find Yaster‘s first point of error without merit.
II. Trial Court’s Revocation Was Based on Sufficient Evidence
Next, Yaster complains that the evidence was insufficient for the trial judge to find that he
violated a condition of community supervision. The determination of an adjudication of guilt is
reviewable in the same manner as that used to determine whether sufficient evidence supported the
trial court‘s decision to revoke community supervision. See TEX. CODE CRIM. PROC. ANN. art.
42.12, § 5(b). While the decision to revoke community supervision rests within the discretion of
the trial court, it is not absolute. In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.—Texarkana 2003,
no pet.). To revoke community supervision, the State must prove every element of at least one
ground for revocation by a preponderance of the evidence. TEX. CODE CRIM. PROC. ANN. art.
42.12, § 10 (Vernon Supp. 2010); T.R.S., 115 S.W.3d at 320; Johnson v. State, 943 S.W.2d 83, 85
(Tex. App.—Houston [1st Dist.] 1997, no pet.). ―‗Preponderance of the evidence‘ has been
defined as the greater weight and degree of credible testimony.‖ T.R.S., 115 S.W.3d at 320.
In a revocation hearing, the trial judge is the sole trier of the facts and determines the
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credibility of the witnesses and the weight to be given to the testimony. T.R.S., 115 S.W.3d at
321; Lee v. State, 952 S.W.2d 894, 897 (Tex. App.—Dallas 1997, no pet.); Johnson, 943 S.W.2d at
85. Considering the unique nature of a revocation hearing and the trial court‘s broad discretion in
the proceedings, the general standards for reviewing sufficiency do not apply. Pierce v. State,
113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet. denied). Instead, we review the trial
court‘s decision regarding community supervision revocation for an abuse of discretion and
examine the evidence in a light most favorable to the trial court‘s order. T.R.S., 115 S.W.3d at
321 (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981)); Pierce, 113 S.W.3d at
436. If the greater weight of credible evidence creates a reasonable belief Yaster has violated a
condition of his community supervision, the trial court did not abuse its discretion and its order
must be upheld. Pierce, 113 S.W.3d at 436 (citing Scamardo v. State, 517 S.W.2d 293, 298 (Tex.
Crim. App. 1974)). If the State‘s proof is sufficient to prove any one of the alleged community
supervision violations, the revocation should be affirmed. T.R.S., 115 S.W.3d at 321 (citing
Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.—Texarkana 1995, pet. ref‘d)).
Yaster committed the offense of assault if he intentionally, knowingly, or recklessly caused
Beningo, a member of the same household, bodily injury. TEX. PENAL CODE ANN. § 22.01(a)(1)
(Vernon Supp. 2010); TEX. FAM. CODE ANN. § 71.004 (Vernon 2008). He committed the offense
of interference with an emergency telephone call if he knowingly prevented or interfered with
Beningo‘s ability to place a 9-1-1 emergency call. TEX. PENAL CODE ANN. § 42.062(a) (Vernon
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Supp. 2010). An emergency under this section ―means a condition or circumstance in which any
individual is or is reasonably believed by the individual making a telephone call to be in fear of
imminent assault or in which property is or is reasonably believed by the individual making the
telephone call to be in imminent danger of damage or destruction.‖ TEX. PENAL CODE ANN.
§ 42.062(d) (Vernon Supp. 2010).
The trial court heard the following evidence: Officer Michael Mitchell was called to a
residence where Yaster and Beningo cohabitated. He testified that upon his arrival, a nervous,
upset, and frightened ―Beningo was standing on her front porch . . . She advised me that her and
Marvin had been in a verbal altercation. When she advised him she was going to call 9-1-1, he
tackled her and caused her to strike her head on the floor,‖ knocking the telephone from her hand.
Beningo testified, ―[W]e got in an argument. And I went to call 9-1-1, and when I did, he
pushed me. And when he pushed me, I fell down, and the phone went flying.‖ Beningo claimed
that they both had been drinking and that even though she hit her head on the floor after being
pushed, it only ―hurt for a minute or two.‖ She clarified that the argument was verbal and that
Yaster ―didn‘t hit me or anything,‖ statements confirmed by the dispatch audio recording.
The recording transcript demonstrated a struggle, Yaster‘s threats to throw Beningo
―across the room,‖ Beningo‘s realization that the 9-1-1 dispatcher was on the telephone, her
pronouncement to Yaster that ―[y]ou‘re going to jail tonight for assault,‖ and her statement to the
dispatcher that ―Marvin hit me.‖ She told the dispatcher, ―He pushed me down on the floor
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because I told him to get me—my stuff out of the computer. He put something in there today
that‘s suppose [sic] to give my computer a virus.‖3 ―[H]e says it‘s going to mess my computer
up.‖ Beningo explained, ―I didn‘t even know that call went through, . . . .because he yanked the
phone . . . .[and] [i]t broke.‖
The trial court, acting as fact-finder, could have determined the evidence demonstrated that
Yaster pushed Beningo and caused her to hit her head, and/or that Yaster interfered with Beningo‘s
ability to place an emergency 9-1-1 telephone call, based upon the belief that her computer was
being destroyed, and her fear of imminent assault by pushing her and breaking the telephone.
Viewing the evidence in a light most favorable to the trial court‘s order, we conclude the trial court
did not abuse its discretion in finding either assault causing bodily injury to Beningo, and/or
interference with an emergency telephone call by a preponderance of the evidence.
III. Trial Court Afforded Opportunity to Present Mitigating Evidence on Punishment
Next, Yaster complains that the trial court failed to conduct a punishment hearing after
adjudicating guilt. Section 23(a) of Article 42.12 of the Texas Code of Criminal Procedure
states that ―[i]f community supervision is revoked after a hearing under Section 21 of this article,
the judge may proceed to dispose of the case as if there had been no community supervision.‖
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23. Thus, ―when a trial court finds that an accused has
committed a violation as alleged by the State and adjudicates a previously deferred finding of guilt,
3
Yaster testified that he was attempting to repair the computer by ridding it of a virus and that he did not tackle or
otherwise hit Beningo.
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the court must then conduct a second phase to determine punishment.‖ Issa v. State, 826 S.W.2d
159, 161 (Tex. Crim. App. 1992). ―The defendant is entitled to a punishment hearing . . . and the
trial judge must allow the accused the opportunity to present evidence.‖ Id.
After adjudication, the trial court asked if there was ―[a]ny objection to sentencing‖ from
either party, to which Yaster‘s attorney replied, ―No objection.‖ He also stated there was no
reason the court should not sentence Yaster ―other than . . . we don‘t think he‘s guilty.‖ The court
next asked Yaster if he had ―anything [he] wish[ed] to say,‖ to which he replied, ―I‘m not guilty.‖
It appears that Yaster was presented with an opportunity to object or to provide evidence in
mitigation of punishment. At this stage, if Yaster ―wanted an opportunity to present evidence and
argument on the question of punishment, it was incumbent upon him to ask for that opportunity
and to be ready to present such evidence and argument as soon as the trial court announced its
finding that he had violated the conditions of his probation.‖ Euler v. State, 218 S.W.3d 88, 91
(Tex. Crim. App. 2007) (reasoning that ―[p]art of being prepared for a revocation hearing is being
prepared to present evidence and argument on the question of the proper disposition in the event
that the trial court finds that the conditions of probation have been violated‖). Because Yaster did
not present such evidence when given the opportunity, error was not preserved and he may not
complain of the lack of a punishment hearing for the first time on appeal. TEX. R. APP. P. 33.1;
Hardeman v. State, 1 S.W.3d 689, 690–91 (Tex. Crim. App. 1999) (when defendant fails, after
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being given chance to object that no punishment hearing was held after adjudicating guilt, error is
not preserved). We overrule this unpreserved point of error.
IV. We Modify Judgment to Reflect Correct Plea to State’s Allegations
Last, the court‘s original judgment and three following judgments nunc pro tunc listed
Yaster‘s plea to the ―motion to adjudicate‖ as ―true.‖ This was incorrect, as Yaster pled ―not true‖
to the allegations. The Texas Rules of Appellate Procedure give this Court authority to reform
judgments and correct typographical errors to make the record speak the truth. TEX. R. APP. P.
43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Gray v. State, 628 S.W.2d
228, 233 (Tex. App.—Corpus Christi 1982, pet. ref‘d). The State agrees that the judgment should
be modified to reflect Yaster‘s plea in accordance with the record. We hereby modify the trial
court‘s judgment to reflect a plea of ―not true‖ to the allegations in the State‘s motion to revoke
community supervision and proceed with adjudication of guilt.
V. Conclusion
We affirm the trial court‘s judgment, as modified.
Jack Carter
Justice
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Date Submitted: November 3, 2010
Date Decided: November 4, 2010
Do Not Publish
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