Juan Diego Reyes v. State ( 2011 )

NO. 07-09-00293-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 22, 2011
JUAN DIEGO REYES, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 19,726-A; HONORABLE HAL MINER, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Juan Diego Reyes appeals from the trial court’s revocation of his
deferred adjudication, finding him guilty of burglary of a habitation and sentencing him to
eleven years of imprisonment. By two issues, appellant contends the trial court erred in
revoking his deferred adjudication. We affirm.
Background
In June 2008, appellant plead guilty to the offense of burglary of a habitation.1
The trial court deferred an adjudication of guilt and placed appellant on community
supervision for a period of eight years. In July 2009, the State filed its amended motion
to revoke the order granting unadjudicated probation, alleging appellant violated the
terms of his community supervision by committing the criminal offense of resisting arrest
in June 2009, using cocaine in May 2009, failing to maintain curfew in June 2009, and
failing to successfully complete the SAFPF treatment plan. The court heard the motion
on July 30, 2009. Appellant plead “not true” to the State’s first allegation but plead
“true” to the second, third, and fourth allegations. After hearing the evidence presented,
the trial court adjudicated appellant’s guilt and sentenced him to imprisonment for
eleven years and imposed against him a $2000 fine.
Analysis
By appellant’s first issue, he contends the evidence is legally and factually
insufficient to support the State’s allegations and argues the trial court had no basis for
lengthening the sentence imposed on appellant from eight years to eleven years. By his
second issue, he argues the trial court violated his due process rights in failing to
present a written statement as to the evidence relied on and reasons for revoking his
probation. We disagree with both of appellant’s assertions.
The decision whether to revoke community supervision rests within the discretion
of the trial court. Forrest v. State, 805 S.W.2d 462, 464 (Tex.Crim.App. 1991); Cardona
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See Tex. Penal Code Ann. § 30.02 (West 2003).
2
v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The court's discretion, however,
is not absolute and does not authorize the revocation of community supervision without
evidence of a violation of one of the conditions imposed. DeGay v. State, 741 S.W.2d
445, 449 (Tex.Crim.App. 1987). The State must prove by a preponderance of the
evidence that a condition of community supervision was violated. Cardona, 665 S.W.2d
at 493. We apply an abuse of discretion standard to review of a revocation order.
Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006).
A plea of true to even one of the State's allegations is sufficient to support a
revocation of deferred adjudication community supervision. See Watts v. State, 645
S.W.2d 461, 463 (Tex.Crim.App. 1983) (holding that plea of true to one allegation is
sufficient to support revocation of regular probation). In this case, appellant plead true to
three of the allegations contained in the State's application. These pleas adequately
support the trial court’s determination that appellant violated at least one condition of his
community supervision. Herrera v. State, 951 S.W.2d 197, 199 (Tex.App.—Corpus
Christi 1997, no pet.).
Appellant also complains that the judge abused his discretion in sentencing
appellant to eleven years of imprisonment when his deferred adjudication community
supervision was for a period of eight years.
Sentencing is within the sound discretion of the trial court, and we review the
sentence imposed by a trial court for an abuse of discretion. Jackson v. State, 680
S.W.2d 809, 814 (Tex. Crim. App. 1984); Baldridge v. State, 77 S.W.3d 890, 893-94
(Tex. App.--Houston [14th Dist.] 2002, pet. ref'd). Where deferred adjudication probation
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is revoked, the trial court is not limited to imposing the original term recommended but
may impose any term authorized by statute. Von Schounmacher v. State, 5 S.W.3d
221, 223 (Tex.Crim.App. 1999). As a general rule, a penalty assessed within the proper
punishment range will not be disturbed on appeal. Jackson, 680 S.W.2d at 814. A trial
court may be found to have abused its discretion if there is no evidence or factual basis
for the punishment imposed. Id.; Benjamin v. State, 874 S.W.2d 132, 135 (Tex.App.--
Houston [14th Dist.] 1994, no pet.).
Appellant plead guilty to the indicted offense of burglary of a habitation. This
offense is a second degree felony punishable by imprisonment for any term not more
than 20 years or less than 2 years and a fine not to exceed $10,000. See Tex. Penal
Code Ann. § 12.33 (West 2003). Appellant was sentenced to eleven years, a
punishment within the permissible range. In addition to appellant’s pleas of true to three
of the State’s revocation allegations, and the testimony that appellant resisted arrest
while on community supervision, the court heard evidence of facts surrounding the
burglary offense.
The trial court did not abuse its discretion by revoking appellant's community
supervision, adjudicating him guilty of burglary of a habitation and imposing sentence.
We overrule appellant’s first issue.
In appellant’s second issue, he contends the trial court violated his due process
rights when it failed to disclose in a written statement the grounds on which the
revocation was based. We disagree.
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Due process in the revocation context requires a hearing; written notice of the
claimed violations; disclosure of the evidence against the defendant; an opportunity to
be heard and to present witnesses and documentary evidence; a neutral hearing body;
and "a written statement by the fact finder as to the evidence relied on and the reasons
for revoking probation." Ex parte Carmona, 185 S.W.3d 492, 495 (Tex.Crim.App. 2006),
(citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)).
The trial court is not required to issue separate findings if the judgment or revocation
order discloses the grounds for revocation found by the court. See Reasor v. State, 281
S.W.3d 129, 136 (Tex.App.—San Antonio 2008, pet. ref’d). See also Payne v. State,
Nos. 04-00-00659-CR and 04-00-0060-CR, 2001 Tex.App. LEXIS 3306 (Tex.App.—San
Antonio May 23, 2001) (mem. op., not designated for publication) (judgment stating that
“condition number one was violated” provided the information necessary to determine
the basis of revocation, which satisfied due process).
Here, the reporter’s record clearly reflects appellant plead “true” to paragraphs 2,
3, and 4 of the State’s motion. The reporter’s record further shows that the court heard
evidence on the State’s allegation stated in paragraph 1 of the motion to revoke, i.e.,
that appellant committed the offense of resisting arrest, and rendered a finding that
allegation also was true. The court’s written judgment is consistent with the reporter’s
record, in that it states appellant plead “true” to paragraphs 2, 3, and 4 of the State’s
motion. The judgment further recites, “While on community supervision, Defendant
violated the terms and conditions of community supervision as set out in the State’s
Amended Motion to Adjudicate Guilt as follows: Paragraphs 1-4.” The record clearly
reflects the evidence on which the court relied, and the grounds for revocation. The
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requirements of due process were met. We overrule appellant’s second issue, and
affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
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