Jerome Marquise Donavon A/K/A Jerome Donavan v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00470-CR
JEROME MARQUISE DONAVON APPELLANT
A/K/A JEROME DONAVAN
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In three issues, Appellant Jerome Marquise Donavon a/k/a Jerome
Donavan2 appeals the revocation of his community supervision. We affirm.
1
See Tex. R. App. P. 47.4.
2
Donavon is spelled “Donovon” in the reporter’s record and “Donavan” in
the indictment. On October 10, 2011, the trial court entered an order entering the
appellant’s true name as Jerome Marquise Donavon.
II. Factual and Procedural Background
In July 2010, Donavon pleaded guilty to burglary of a habitation with intent
to commit theft in exchange for five years’ deferred adjudication community
supervision. In July 2011, the State filed a petition to proceed to adjudication,
alleging that Donavon had violated the conditions of his community supervision
by: (1) assaulting a member of his household; (2) testing positive for THC; (3)
failing to maintain full-time employment; (4) failing to pay his court costs, his
supervision fees, his fines, and his attorney’s fees; (5) failing—for several
months—to complete a minimum of ten hours per month of community service;
(6) failing to submit a urine specimen in October 2010; and (7) failing to attend a
marijuana intervention program on three occasions.
At the adjudication hearing, Donavon pleaded “not true” to grounds (1) and
(2) and “true” to the others. The complainant of the assault—the mother of
Donavon’s child—testified that Donavon had hit her and busted her bottom lip;
Sammy Brown testified that he did not see or hear Donavon hit the complainant
or see any injuries, but he agreed that he did not “see the entire thing.” The trial
court admitted the complainant’s affidavit of nonprosecution.
Donavon testified that a few days before his urinalysis appointment in
October 2010, his brother killed his uncle, a tragedy that prevented his mother—
his only source of transportation—from being able to drive him to his
appointment. Donavon also testified that he was partially paralyzed from having
been shot in the back and that his community supervision officer and her
2
supervisor had told him that they would waive his employment and community
service conditions based on his social security disability letter.
Donavon admitted on cross-examination that he had not worked any of his
community service hours. Although during his direct testimony, he stated that he
was unable to work at the time of the hearing, he also told the trial court that,
even with his disability, he could do work that involved sitting and answering
phone calls but that he did not want a job that was boring and wanted to do work
that he enjoyed. Donavon told the trial court that he wanted to work and
admitted, “I was just being lazy. It’s no excuse.” Donavon did not testify at all
with regard to the assault allegation other than to note that he had been drinking
alcohol on the day of the assault, even though he knew that he was not
supposed to drink alcohol while on community supervision.
At the hearing, the trial court found “true” all of the grounds alleged by the
State except for ground (2),3 revoked Donavon’s community supervision,
3
In its judgment adjudicating guilt, the trial court found all of the grounds
true. As a general rule, when an oral pronouncement of sentence and a written
judgment differ, the oral pronouncement controls. Ex parte Madding, 70 S.W.3d
131, 135 (Tex. Crim. App. 2002). Further, when the appellate court has the
necessary information before it, it may correct a trial court’s written judgment to
reflect its oral pronouncement. Thompson v. State, 108 S.W.3d 287, 290 (Tex.
Crim. App. 2003). After revocation of deferred adjudication community
supervision, intermediate appellate courts rely on these principles to sua sponte
modify judgments adjudicating guilt so that they conform to the trial court’s oral
pronouncement of the findings supporting revocation and adjudication. See Tex.
R. App. P. 43.2(b); Smith v. State, 290 S.W.3d 368, 377 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref’d); see also Maddox v. State, No. 02-08-00020-CR,
2009 WL 213715, at *3 & n.4 (Tex. App.—Fort Worth Jan. 29, 2009, no pet.)
3
adjudicated his guilt, and sentenced him to five years’ confinement. This appeal
followed.
III. Discussion
Donavon raises the following complaints: (1) that the State did not prove
the first and fourth grounds alleged in its petition to proceed to adjudication;
(2) that the trial court violated his due process rights by not allowing his mother to
testify; and (3) that his counsel was ineffective for not calling his probation officer
and her supervisor to corroborate his testimony.
We review an order revoking community supervision for an abuse of
discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). To
overturn a revocation order, a defendant must successfully challenge each
finding on which the revocation is based, and he cannot challenge a revocation
finding on an allegation to which he pleaded “true.” Harris v. State, 160 S.W.3d
621, 626 (Tex. App.—Waco 2005, pet. stricken); see also Smith v. State, 286
S.W.3d 333, 342 & n.36 (Tex. Crim. App. 2009) (“We have long held that ‘one
sufficient ground for revocation would support the trial court’s order revoking’
community supervision.”); Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App.
[Panel Op.] 1979) (“This Court had previously held that the sufficiency of the
evidence could not be challenged in the face of a plea of true . . . . [We] find that
(mem. op., not designated for publication) (modifying the judgment adjudicating
guilt to reflect the proper grounds for revocation found true by the trial court).
4
appellant’s plea of true, standing alone, is sufficient to support the revocation of
probation.”); Maddox, 2009 WL 213715, at *3 (citing Harris, 160 S.W.3d at 626).
The State’s motion to revoke alleged seven grounds, Donavon pleaded
“true” to five of them, and the trial court found affirmatively as to six of them.
Because a single plea of true is sufficient to support revocation, and because
Donavon does not challenge all of the trial court’s affirmative findings, we
overrule his first issue. See Harris, 160 S.W.3d at 626; see also Jones v. State,
571 S.W.2d 191, 193–94 (Tex. Crim. App. [Panel Op.] 1978) (holding that one
sufficient ground for revocation would support the trial court’s order revoking
probation).
Further, although Donavan complains in his second issue that the trial
court violated his due process rights when his mother was not allowed to testify,
we note that the following exchange occurred at the hearing after the trial court
asked Donavon to call his next witness:
[Donavon’s counsel]: Josette Donovon.
The Court: Okay. Step outside.
[Donavon’s counsel]: Can I approach?
The Court: Yeah.
[Donavon’s counsel]: Is it about her attire? That’s the best
she’s got.
(Discussion off the record.)
The Court: All right. Defense may proceed.
[Donavon’s counsel]: Thank you, Your Honor.
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Your Honor, for the record, our first witness was to be Josette
Donovon. It is my understanding the Court has deemed her attire
inappropriate to testify. We’d ask the Court to note our objection to
that ruling. And our next witness will be Sammy Brown.
The Court: Sammy Brown. If you’d raise your right hand.
[Emphasis added.]
Donavon did not raise due process grounds for his objection. He also did
not create a bill of exception with regard to the contents of his mother’s excluded
testimony.4 See Tex. R. App. P. 33.1, 33.2; Tex. R. Evid. 103(a)(2); Holmes v.
State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009); see also Anderson v. State,
301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (stating that due process rights may
be forfeited if not properly preserved). And based on our resolution of his first
issue, even if Donavon had preserved this issue, it would not alter the outcome of
this appeal. See Tex. R. App. P. 44.2; Potier v. State, 68 S.W.3d 657, 665 (Tex.
Crim. App. 2002) (holding that exclusion of a defendant’s evidence will be
constitutional error only if the evidence forms such a vital portion of the case that
exclusion effectively precludes the defendant from presenting a defense).
Therefore, we overrule his second issue.
In his third issue, Donavon complains that he received ineffective
assistance of counsel, but he has not shown, and the record does not reflect, that
4
Donavon contends that his mother was the only eyewitness to the alleged
assault besides himself and the complainant and that her testimony would have
corroborated his testimony about why he missed his urinalysis appointment in
October 2010.
6
the testimonies of his community supervision officer and her supervisor would
have benefited him or that they would have been available to testify if called. 5
See Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004) (“To obtain relief
on an ineffective assistance of counsel claim based on an uncalled witness, the
applicant must show that [the witness] had been available to testify and that his
testimony would have been of some benefit to the defense.”); Nwosoucha v.
State, 325 S.W.3d 816, 830 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d)
(same). Therefore, we overrule Donavon’s third issue.
IV. Conclusion
We modify the trial court’s judgment to reflect that the trial court found only
grounds (1), (3), (4), (5), (6), and (7) true, and having overruled Donavon’s three
issues, we affirm the trial court’s judgment as modified.
PER CURIAM
PANEL: MCCOY, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 24, 2012
5
Donavon did not file a motion for new trial.
7