Tara Anne Johnson v. The State of Texas--Appeal from County Criminal Court No. 2 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Tara Anne Johnson

Appellant

Vs. No. 11-01-00273-CR B Appeal from Dallas County

State of Texas

Appellee

This is an appeal from a judgment revoking appellant=s community supervision. On October 18, 2000, appellant entered a plea of nolo contendere to the offense of driving while intoxicated, a class B misdemeanor. The trial court convicted appellant and assessed her punishment at confinement for 90 days and a $650 fine. Pursuant to a plea bargain agreement, the trial court suspended the imposition of the confinement portion of the sentence and placed appellant on community supervision for 24 months. Five months after she was placed on community supervision, the State filed a motion to revoke on March 8, 2001. The State alleged that appellant had committed a subsequent DWI on January 6, 2001, had failed to pay court-ordered fees, had failed to perform community service as ordered, and had failed to complete treatment as ordered. After a hearing on the State=s motion to revoke, the trial court found that appellant had violated the terms and conditions of her community supervision by committing the offense of DWI on January 6, revoked her community supervision, and imposed a sentence of confinement for 90 days. We reverse.

In her sole point of error, appellant contends that the State failed to present any evidence to support the allegations in the motion to revoke. Based on the record before this court, we agree.

The record before this court consists of one volume of the clerk=s record and one volume of the reporter=s record from the June 22, 2001, hearing on the motion to revoke. The reporter=s record reflects that the revocation hearing began as follows:

THE COURT: State have any evidence on the motion to revoke?

[PROSECUTOR]: No, your Honor.

THE COURT: [Appellant], you have the right to have this arrest expunged off your record. To do so, you must be provided with a - - your lawyer must provide you with an order within thirty days of today=s date.

All right. Rest?

[DEFENSE COUNSEL]: Yes.

[PROSECUTOR]: Rest.

THE COURT: And I understand that y=all stipulated that she is one and the same person in cause MB00-18229-B [this appeal]?

[DEFENSE COUNSEL]: Yes.

THE COURT: All right. Argument.

[PROSECUTOR]: Certainly, on the second DWI case [January 6], we have certainly proved enough to be a basis for a revocation on the first DWI case [this appeal]. We ask you to punish her accordingly.

I believe there were only three months between the transactions. She pled guilty on her first DWI October 18th, and we believe based on her misconduct she=s a risk to the rest of us, and we ask that you revoke her. We believe we have proved that by at least a preponderance of the evidence.

THE COURT: [DEFENSE COUNSEL].

[DEFENSE COUNSEL]: I would disagree 100 per cent with the prosecution. The jury has decided that she was not intoxicated due to alcohol [in the trial on the merits of the January 6th DWI]. That=s all - - and so the jury - - the prosecution wants to assume what the jury would believe - and I know, at this point, it goes to the Judge - but is there a probable -- or a preponderance of the evidence to say she=s intoxicated? I would deny that.

After further argument, the trial court found the allegation concerning the January 6th DWI to be true and found the other allegations not true. The trial court then directed the State to call its first witness on punishment. The prosecuting attorney stated, AState resubmits its case in chief.@

Defense counsel called appellant as a witness, and she denied that she had been drinking either on January 6th or on October 18th, the offense she had pleaded guilty to. During her testimony, the trial court made reference to the videotape of appellant. The trial court stated:

Someone who gets in trouble and then three months later gets into the same type of trouble again. Looking at the videotape that I saw a few minutes ago, that=s not the kind of people that I would - - we can accept having driving on our highways. How in the world did you start the car that night?

The record of the revocation hearing reflects that no exhibits were admitted and that no videotapes were played in the court room. The videotape to which the trial court referred was apparently a tape made concerning the January 6th DWI and was played at the trial on the merits of January 6th DWI. It is not part of the record in this appeal.[1]

At the revocation hearing, the State neither resubmitted the evidence from the trial on the merits of the January 6th DWI nor requested that the trial court take judicial notice of the trial on the merits. Instead, the State affirmatively stated that it had no evidence to present. The fact that, after the trial court had revoked appellant=s community supervision, the State informed the trial court that it Aresubmits its case in chief@ and the trial court referenced appellant=s appearance in a video admitted in another proceeding does not constitute evidence of violation of a community supervision provision. See Leday v. State, 983 S.W.2d 713 (Tex.Cr.App.1998). The State did not establish by a preponderance of the evidence that appellant violated the terms and conditions of her community supervision. Jenkins v. State, 740 S.W.2d 435 (Tex.Cr.App.1983). The point of error is sustained.

The judgment of the trial court revoking appellant=s community supervision is reversed, and appellant=s community supervision is reinstated.

PER CURIAM

July 18, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]We note that appellant has requested and filed a complete record from the proceeding from which she is appealing: the revocation of her community supervision. No request has been made by any party to supplement this appellate record with proceedings from the trial on the merits of the January 6th DWI.