Frederick Lee Perkins v. The State of Texas--Appeal from 194th District Court of Dallas County

2) Caption, civil cases

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

 
FREDERICK LEE PERKINS,

Appellant,

 

v.

 

THE STATE OF TEXAS,

 

Appellee.

 

 
No. 08-02-00276-CR

Appeal from the

 

194th District Court

 

of Dallas County, Texas

 

(TC# F-0002568-M)

MEMORANDUM OPINION

 

Frederick Lee Perkins appeals the revocation of his community supervision. We affirm.

Facts

On December 20, 2000, Perkins pleaded nolo contendere to the offense of aggravated assault. In exchange for his plea, he received a sentence of six years' confinement probated for four years and a fine of $1,500. On September 4, 2001, the State filed a motion to revoke probation. That motion was amended on November 27, 2001. The revocation hearing was held on May 17, 2002.

 

The State made a number of allegations in its motion for revocation. Marked to the terms and conditions of Perkins' community service, the motion claimed a number of violations. Those violations can be paraphrased as follows:

A. Perkins broke the laws of this or any other state when "On or about APRIL 12, 2001 in the County of Dallas and State of Texas; FREDERICK LEE PERKINS did unlawfully then and there intentionally and knowingly threaten ELGIN RUFF, with imminent bodily injury, and said defendant did use and exhibit a deadly weapon to-wit: a motor vehicle, during the comission [sic] of the assault, as alleged in F01-74396-M."

 

D. Perkins failed to report as required to his community supervision officer.

 

E. Perkins failed to inform the supervision officer of his whereabouts.

 

H. Perkins was delinquent $105 in his payments to the Dallas County Community Supervision and Corrections Department (DCCSCD).

 

J. Perkins was delinquent $440 in his supervision fees to the DCCSCD.

 

K. Perkins did not perform his community service hours as directed.

 

M. Perkins did not attend or complete his Comprehensive Assessment and Treatment Services (CATS) as directed.

 

O. Perkins did not attend or complete Family Violence Counseling as directed.

 

P. Perkins did not attend or complete an Anger Control Management Program as directed.

 

Perkins pleaded not true to the allegations A, H, and J; but pleaded true to allegations D, E, K, M, O, and P. The trial court found "by a preponderance of the evidence with regard to Allegation A contained in the motion that you have committed the offense of criminal mischief in an amount at least $1,500, but less that $20,000; found by a preponderance of the evidence that you have violated conditions D, E, K, M, O, and P. Because of your plea of true, this is a unitary procedure in this matter, F00-02568." The judge then sentenced Perkins to five years' confinement.

At the close of argument, the trial judge found that Perkins had violated a number of terms and conditions of community supervision, revoked his community supervision, and sentenced him to five years' confinement.Separate punishment hearing waived

Perkins' first point of error claims that the trial court erred in not allowing for a punishment hearing after finding that appellant had violated his probation. He refers the Court to Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992), and Texas Code of Criminal Procedure article 42.12, section 5 to support his argument. We find Perkins has waived his complaint by not properly preserving the error.

Immediately following closing arguments, the trial court announced that the community supervision was to be revoked and the sentence imposed:

THE COURT: Mr. Perkins, may I ask that you please rise.

The Court finds by a preponderance of the evidence with regard to Allegation A contained in the motion that you have committed the offense of criminal mischief in an amount at least $1,500, but less than $20,000; found by a preponderance of the evidence that you have violated conditions D, E, K, M, O, and P. Because of your plea of true, this is a unitary procedure in this matter, F00-02568, Order, Judgment, and Decree of the Court that you be taken by the Sheriff of Dallas County, by him safely held until transferred to an authorized receiving agent of the Institutional Division of the Texas Department of Criminal Justice where you shall be confined for a period of five years and until the court costs in the matter have been discharged. Formal sentence imposed to begin today, May 17th 2002, crediting all back time served since February 26th. I remand you to the bailiffs.

 

Perkins lodged no objection to this either at the proceeding or in a motion for new trial.

Assuming, arguendo, that Perkins was entitled to a separate punishment hearing in his revocation of community supervision, as he contends, the failure to timely object waived his complaint. Perkins does not allege that he did not have an opportunity to object; but even if he did lack such an opportunity, some objection must be brought forward in a motion for new trial. Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999); see Issa, 826 S.W.2d at 160-61. No objection was made and no motion for new trial was filed with the trial court. As a result, Perkins failed to preserve error. The first point of error is overruled.

Single violation sufficient for revocation

Perkins' second point of error is that allegation A put forth in the motion to revoke community supervision was one of aggravated assault, not criminal mischief as found by the trial court. Perkins does not attempt to explain to this Court in his one paragraph argument why this makes a difference in this case where he pleaded true to six other violations of the terms and conditions of his community supervision. It is well settled that violation of a single condition of community supervision is sufficient to support the revocation. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). The only question presented in an appeal from an order revoking community supervision is whether the trial court abused its discretion by revoking the appellant's probation. See Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). In light of the other six violations, this Court cannot find that any potential error with regard to this one violation would force the conclusion that the trial judge abused his discretion in revoking Perkins' community supervision. Perkins' second point of error is overruled.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

 

SUSAN LARSEN, Justice

March 13, 2003

 

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

 

(Do Not Publish)