Dennis, Charles Ernest v. The State of Texas--Appeal from 109th District Court of Winkler County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CHARLES ERNEST DENNIS, )

) No. 08-01-00207-CR

Appellant, )

) Appeal from

v. )

) 109th District Court

THE STATE OF TEXAS, )

) of Winkler County, Texas

Appellee. )

) (TC# 3942)

O P I N I O N

Charles Ernest Dennis brings appeal of the revocation of his community supervision on three points. We affirm and reform.

Facts

On June 22, 1994, Charles Ernest Dennis was found guilty of arson and received a probated sentence of ten years for the offense. Dennis=s probation was subject to certain conditions. The first condition required that Dennis A[c]ommit no offense against the laws of the State of Texas or of any other state, the United States or any governmental entity.@

On June 22, 1999, the State filed a motion to revoke Dennis=s community supervision. The motion alleged that Dennis violated the first condition of his community supervision:

The defendant committed an offense against the laws of the State of Texas in that on or about June 8, 1999, the defendant was arrested for the offense of Driving While Intoxicated in Winkler County, Texas, by Texas Department of Public Safety Trooper Jeff D. Rickel.

A hearing was held on the motion on June 13, 2000. At the close of argument, the court stated: AThe Court finds by a preponderance of the evidence that the allegations set out in the Motion to Revoke Probation are true and that the Defendant=s probation should be revoked.@ In its judgment filed June 15, the court revoked supervision. The judgment held that the first condition of appellant=s community supervision was violated, in that

[t]he defendant has committed offenses against the laws of the State of Texas, in that the defendant committed the offense of Driving While Intoxicated on June 8, 1999 in Winkler County, Texas, as set out in the State=s Motion To Revoke.

The court then imposed a sentence of confinement for ten years.

The Court of Criminal Appeals granted Dennis permission to pursue an out-of-time appeal.

Points of Error One and Three

Appellant brings three points of error. In his third point, appellant argues that the allegation of a violation of supervision was invalid and improper and failed to adequately charge a violation. In his first point, he argues that there is insufficient evidence upon which to base the revocation.

Initially, we conclude that appellant has waived error as to his third point. On May 15, 2000, appellant filed a pretrial motion to quash, wherein appellant argued that he was not provided with appropriate notice. There is no record of any court action on the motion in the record. Therefore, we do not believe that appellant=s point has been properly preserved. See Tex. R. App. P. 33.1(a) (holding that as a prerequisite for presenting a complaint for appellate review, the record must show that a specific, timely complaint was made to the trial court and that the trial court ruled on the request); see also Vance v. State, 485 S.W.2d 580, 581-82 (Tex. Crim. App. 1972) (holding that where revocation motion did not allege facts that would necessarily constitute a violation of the law, the motion was clearly defective but because no motion to quash was filed, the question of the sufficiency of the revocation motion could not be questioned for the first time on appeal); Wilcox v. State, 477 S.W.2d 900, 901 n.1 (Tex. Crim. App. 1972).

Appellant makes many assertions in his third point. He contends that merely being arrested is not a violation of his probation. He argues that an arrest, charge, or indictment accusing him of committing a crime is not proof thereof. Thus, the fact that his arrest was absolutely proved did not conclusively prove a violation of his probation. He concludes that the State failed to bring a proper charge against him initially and that since its motion did not contain a proper allegation, the judgment is void.

As the Court of Criminal Appeals recognized in Jansson v. State, 473 S.W.2d 40 (Tex. Crim. App. 1971), where a revocation of probation is based upon a violation of the condition not to violate the law, the requirements of the allegation are not as stringent as those of an indictment. Id. at 42 (citing Campbell v. State, 456 S.W.2d 918, 921 (Tex. Crim. App. 1970)); see also Wilcox, 477 S.W.2d at 901 n.1. Nevertheless, the allegation must give fair notice and must allege a violation of the law. Wilcox, 477 S.W.2d at 901 n.1.

In Jansson, the motion to revoke alleged that the appellant had violated the condition of his probation that he not commit any offense against the law and specifically that he Aha[d] been arrested with narcotics in his possession.@ 473 S.W.2d at 41. In finding that the allegation was defective, the Jansson Court stated that the allegation did not assert facts that would necessarily constitute a violation of the law. Id. at 42. The Court pointed to the fact that the motion did not allege the facts of the offense or even that such action was unlawful. Id. at 42. As a result, the allegation was fatally defective.

In contrast, here, the allegation was not fatally defective. The allegation was made with specificity. Although the charge did not allege a violation of law, appellant was put on sufficient notice of the charge against him.

We agree that an arrest, indictment, or charge accusing one of committing a crime is not proof thereof. In that regard, the situation in the present case is comparable to the one presented in Flores v. State, 331 S.W.2d 217 (Tex. Crim. App. 1959). In Flores, the Court of Criminal Appeals held that the arrest and filing of a complaint against a probationer is not alone sufficient to authorize revocation of supervision that conditions that the probationer commit no offense against the law. Id. at 218. In Flores, Flores was sentenced to a probated sentence conditioned solely on the basis that he commit no offense against the laws of the State of Texas, any other state, or the United States. Id. at 217. The district attorney filed a motion to revoke probation alleging that Flores had been arrested for burglary and that a complaint had been filed for the offense. Id. After a hearing, the court entered an order revoking probation. Id. at 217-18. Flores brought appeal claiming that the arrest and filing of the complaint against him would not authorize revocation of his probation. Id. at 218. The Court agreed. Id.

However, the Court continued, in that case, the revocation did not rest merely upon the accusation and arrest. Id. Rather, the evidence adduced at the hearing was sufficient to sustain a finding by the trial judge that the appellant had committed the offense upon which revocation was predicated. Id. Therefore, there was support for the finding of the trial judge that Flores had violated the term of his probation to not commit any offense against the law, and the judgment was affirmed. Id. See also Harris v. State, 331 S.W.2d 941, 942 (Tex. Crim. App. 1960) (holding that trial judge acted in error where he revoked the appellant=s probation Aprimarily and exclusively@ on the basis that the jury had returned a verdict finding that the appellant had committed an offense during her probation but suggesting that there would not have been error if the judge had heard evidence that the appellant actually committed the offense or the conviction for the offense had become final).

Similarly, here there was sufficient evidence that appellant committed the offense of driving while intoxicated, upon which revocation was predicated. Driving while intoxicated is an offense under Tex. Penal Code ' 49.04, which provides that A[a] person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.@ Tex. Penal Code Ann. ' 49.04(a) (Vernon Supp. 2002).

Appellant expends considerable effort arguing that there is no evidence that he had been drinking. That issue is not in controversy. Neither is it dispositive to us under Tex. Penal Code ' 49.01(2), which allows intoxicated to be defined as

not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.

Tex. Penal Code Ann. ' 49.01(2)(A) (Vernon 1994 & Supp. 2002). Appellant could have been intoxicated because of the introduction of a drug into his body that impaired his mental and physical faculties.

Probation may be revoked only upon an affirmative finding of a violation of a condition of probation. Scamardo v. State, 517 S.W.2d 293, 297 (Tex. Crim. App. 1974). And the order must be supported by a preponderance of evidence. Id. at 298; LaBelle v. State, 726 S.W.2d 248, 249 (Tex. App.--El Paso 1987, no pet.) (citing Scamardo); see also Vance v. State, 485 S.W.2d 580, 583 (Tex. Crim. App. 1972) (AIt is well established that there need not first be a trial and a valid conviction for the offense which serves as the basis for the revocation.@). Such evidence must be viewed in the light most favorable to the verdict. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); see Wilcox, 477 S.W.2d at 903 (noting that the trial judge is the sole trier of facts and sole judge of the credibility of the witnesses and the weight to be given their testimony). The trial court=s decision regarding revocation of probation will be reversed only for an abuse of discretion. Garrett, 619 S.W.2d at 174.

Trooper Jeffery Don Rickel of the Texas Department of Public Safety testified that he had received a call about a drunk driver and that appellant=s car was pulled over as a result. Appellant=s reactions were slow, his speech was slurred, and his balance was unsteady. From his past experiences dealing with intoxicated people, Trooper Rickel surmised that appellant did not have normal use of his mental or physical faculties. Additionally, appellant failed the field sobriety test that was administered on him. After observing appellant, he concluded that appellant was intoxicated. Trooper Rickel testified that he was aware that appellant was taking a lot of prescription medications and it was his belief that appellant was intoxicated by the medications. Based on his assessment, Trooper Rickel arrested appellant and filed a complaint against him.

Deputy Sheriff Jay Easley testified that he was one of the officers who responded to the call about the erratic driver on the highway. He witnessed appellant=s car weaving in and out of lanes of traffic. Deputy Easley testified that appellant=s speech was slurred, he was unsteady, and his pupils were dilated. In addition, he testified that there were fifteen to twenty prescription pill bottles in appellant=s car. Therefore, like Trooper Rickel, Deputy Easley believed that appellant was intoxicated.

Reviewing the evidence, we believe the State showed by a preponderance of the evidence that appellant was intoxicated while he was operating the vehicle. Therefore, appellant violated a condition of his supervision. The revocation of appellant=s probation was appropriate. We overrule appellant=s Points One and Three.

Point of Error Two

In his second point, appellant notes that the judgment revoking supervision incorrectly states that he waived the reading of the motion in open court and that he entered a plea of true to the allegation. Appellant asserts that this establishes Awithout a doubt that the judgment entered is erroneous.@

It is clear from the record that appellant pleaded not true to the allegation and that the reading of the allegation in open court was not waived. The trial court was aware of the matters before it and ruled accordingly. The judgment was filed after the trial court had pronounced its finding. We believe that the misinformation, although erroneous, was not fatal and does not void the judgment. Nor does appellant explain to us how it does. Therefore, we do not believe that appellant has presented reversible error under Tex. R. App. P. 44.2(b) in Point Two. We reform the judgment to correct the pleading and waiver inaccuracies, but otherwise overrule appellant=s second point.

Conclusion

For the foregoing reasons, we affirm the judgment as reformed.

SUSAN LARSEN, Justice

June 13, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)