JOSE ANGEL HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and Opinion Filed September 29, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00906-CR
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JOSE ANGEL HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F07-17769-SI
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MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice O'Neill
        Jose Angel Hernandez appeals the adjudication of his guilt for theft of property. In three issues, appellant contends the evidence is insufficient and the written judgment should be modified to show he pleaded not true to the motion to adjudicate and to delete the fine. We modify and affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit our recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled.
 
 
Background
 
        Appellant waived a jury and pleaded guilty to theft of property valued at $200,000 or more. See Tex. Penal Code Ann. § 31.03(a), (e)(7) (West Supp. 2009). Pursuant to a plea agreement, the trial court deferred adjudicating guilt and placed appellant on seven years' community supervision. The trial court also ordered appellant to pay $266,000 in restitution. The State later moved to adjudicate guilt, alleging appellant violated the conditions of his probation by failing to report for five months and failing to pay restitution. Appellant pleaded not true to the allegations in a hearing on the motion. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at fifteen years' imprisonment.
Insufficient Evidence
 
        In his first issue, appellant contends the trial court abused its discretion in revoking his community supervision and adjudicating his guilt because the evidence was insufficient. Appellant argues that because he was deported, it was impossible for him to report or pay the restitution. The State responds that the trial court did not abuse its discretion in revoking appellant's community supervision and adjudicating his guilt.
        Appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). An order revoking community supervision must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of probation. Id. at 763-64. A finding of a single violation of community supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980). Thus, in order to prevail, appellant must successfully challenge all the findings that support the revocation order. See Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978).
        The evidence presented shows appellant did not report to the probation office and did not pay the court-ordered restitution. Appellant's probation officer testified appellant last reported in August 2007, the month he was placed on deferred community supervision, and failed to report through January 2008. Although appellant pleaded not true to the allegations in the motion to adjudicate, he testified he was unable to report or pay restitution because he was “out of the country” after being deported to Mexico. Appellant stated when he contacted his probation officer, the officer said there was nothing for appellant to do. It was the trial court's role, as the fact finder in this case, to reconcile any conflicts in the evidence and judge the witnesses' credibility. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.).
        Because the evidence is sufficient to prove appellant violated a condition of his community supervision, the trial court did not abuse its discretion in revoking appellant's community supervision and adjudicating his guilt. See Rickels, 202 S.W.3d at 763-64; Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980). We resolve appellant first issue against him.
Modify Judgment
 
        In his third issue, appellant contends the judgment adjudicating guilt should be modified to delete a $211 fine that was not orally pronounced at sentencing. The record shows the judgment adjudicating guilt recites the fine as “N/A.” The $211 notation in the judgment, however, is listed under “court costs.” Because there was no fine assessed, we resolve appellant's third issue against him.
        In his second issue, appellant contends the judgment adjudicating guilt should be modified to reflect that he pleaded not true to the allegations in the motion to adjudicate. The State agrees to the modification requested by appellant.
        The record shows appellant pleaded not true to the allegations in the motion to adjudicate. The judgment recites appellant pleaded true to the motion to adjudicate. Thus, the judgment is incorrect. We sustain appellant's second issue. We modify the trial court's judgment adjudicating guilt to show the “plea to motion to adjudicate” section should state “not true.” See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        As modified, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
090906F.U05