Ronnie Darilyn Jones v. The State of Texas--Appeal from 70th District Court of Ector County

Opinion filed January 11, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00111-CR

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   RONNIE DARILYN JONES, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 70th District Court

Ector County, Texas

Trial Court Cause No. A-27,522

O N M O T I O N F O R R E H E A R I N G

Appellant has filed in this court a motion for reconsideration. In her motion, appellant requests that we reconsider our original opinion affirming the judgment revoking appellant=s community supervision. In that opinion, we relied upon appellant having pleaded true to the allegation in the State=s motion to revoke. Appellant asserts in her motion for reconsideration that she did not plead true but, rather, pleaded not true to the allegation. Appellant also requests that we direct the trial court to conduct an evidentiary hearing into the accuracy of the reporter=s record. See Tex. R. App. P. 34.6. We grant the motion in part and deny it in part.

Upon reviewing the reporter=s record in this case, it appears that the court reporter may have inadvertently recorded appellant=s plea when the hearing was resumed. The record reflects that the hearing was originally called on February 23, 2005. At that time, appellant pleaded A[n]ot true@ to the State=s allegation. The hearing, however, was continued due to the unavailability of appellant=s community supervision officer. When the hearing resumed on March 18, 2005, the allegation in the State=s motion to revoke was read again. The reporter=s record reflects that appellant pleaded A[t]rue@ at that time. However, the circumstances at the hearing indicate that appellant may in fact have pleaded Anot true.@

After receiving appellant=s plea to the allegation, the court did not find the allegation to be true but, instead, requested that the State call its first witness. The State called appellant=s community supervision officer to testify regarding the merits of the allegations in the State=s motion. The record also reflects that appellant=s attorney, during cross-examination of the community supervision officer, asked the following question: AEven though she has pled not true to Allegation Number One, is three years still your recommendation to this Court?@ (emphasis added).

Therefore, for purposes of this rehearing, we will assume that appellant pleaded not true and will reconsider appellant=s sole issue challenging the sufficiency of the evidence in support of the revocation. The standard of review and burden of proof were set out in our original opinion, and we need not repeat them here. The record shows that only one witness testified on March 18: appellant=s community supervision officer Laura Hall. Hall testified that she met with appellant on October 28, 2004. Hall requested that appellant submit to a drug test. Appellant said that she was not ready for the test and that, due to some medical issues, she had not been able to urinate in two days. Hall told appellant that she did not believe her story and asked appellant if she had been using cocaine. Appellant shook her head yes and explained that she had been stressed and had gone to a friend=s house to talk on October 27. Appellant admitted to Hall that she snorted two to three lines of cocaine at the friend=s house.

The allegation in the State=s motion to revoke, which the trial court found to be true, was that appellant, A[o]n or about the 27th day of October, 2004, . . . failed to abstain from the use of drugs, to-wit: Cocaine,@ in violation of the terms and conditions of appellant=s community supervision. We hold that the evidence is sufficient to prove by a preponderance of the evidence that appellant violated the terms of her community supervision by failing to abstain from the use of drugs. Thus, the trial court did not abuse its discretion in revoking appellant=s community supervision.

Upon reconsidering appellant=s issue with the presumption that she did not plead true to the State=s allegation, we again overrule the issue.

To the extent that appellant=s motion for reconsideration requests this court to reconsider her issue in light of a plea of not true, the motion is granted. However, insofar as it requests this court to order the trial court to conduct an evidentiary hearing regarding the accuracy of the recording of appellant=s plea in the reporter=s record, the motion is denied.

JIM R. WRIGHT

CHIEF JUSTICE

January 11, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.