LARRY WAYNE SMITH, JR., Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued June 8, 2011
Court of Appeals
Fifth District of Texas at Dallas
LARRY WAYNE SMITH, JR., Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F08-72799-K
Before Chief Justice Wright and Justices Moseley and Lagarde See Footnote 1
Opinion By Justice Lagarde
Appellant Larry Wayne Smith, Jr. was convicted of theft in an amount of less than $1500, having two prior theft convictions (felony theft). Punishment, following the adjudication of his guilt, was enhanced by two prior felony convictions and assessed at eight years' imprisonment. In two issues, appellant challenges the sufficiency of the evidence to support the adjudication of his guilt and asserts the adjudication of his guilt violates due process. We affirm the trial court's judgment.
In November 2008, appellant pleaded guilty before the trial court to an indictment charging him with theft of property less than $1500 and having two prior theft convictions. He also pleaded true to the allegations in the two enhancement paragraphs. After hearing evidence, the trial court found the evidence substantiated appellant's guilt, accepted his pleas, deferred adjudication of appellant's guilt, and placed him on community supervision for three years. Appellant was served with written conditions of his community supervision.
In February 2010, the State filed a motion to adjudicate alleging appellant violated the terms of his community supervision by failing to comply with four of the conditions imposed in the order granting community supervision. See Footnote 2 After being admonished by the trial court of the consequences of his plea of true, appellant said he understood the consequences but wanted to plead true to violating conditions (h), (j) and (k). Appellant pleaded not true to violating condition (a), committing a new theft offense during the community supervision period. See Footnote 3
After hearing evidence, the trial court found there was sufficient evidence to show appellant had violated the conditions of community supervision. The trial court adjudicated appellant guilty and assessed punishment at eight years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant now appeals claiming the trial court abused its discretion by adjudicating his guilt because the State failed to prove he committed a new theft offense, and such adjudication violated his due process and due course of law rights. See U. S. Const. amends. V, XIV; Tex. Const. art. 1, §19.
For reasons that follow, we affirm.
Due Process and Due Course of Law
In his second issue, appellant contends his due process and due course of law rights were violated by the trial court's adjudication of his guilt for failure of the State's proof of the new theft offense. Appellant claims the violations to which he pleaded true were administrative in nature and should not have formed the basis of an adjudication of guilt. He also claims his strategy would have been different had the new offense not been alleged. Thus, appellant contends his rights under both the federal and state constitutions were violated. See U. S. Const. amends. V, XIV; Tex. Const. art. 1, §19.
In order to preserve error for review on appeal, an appellant must first comply with the requirements of rule 33.1 of the Texas Rules of Appellate Procedure. That rule requires an appellant to first complain to the trial court by a timely request, objection, or motion and state his grounds for the ruling he seeks from the trial court. It also requires that the trial court rule on appellant's request, objection, or motion, either expressly or implicitly, or refuse to rule. If the trial court refuses to rule, an appellant must object to the trial court's refusal. Tex. R. App. P. 33.1(a); see also Rogers v. State, 640 S.W.2d 248, 263-65 (Tex. Crim. App. 1982)(enbanc)(op. On State's 2nd motion for reh'g) (holding appellant waived complaint by failing to voice due process objection in trial court). The record before us contains no complaint by appellant that his due process or due course of law rights were violated. Moreover, appellant cites no authority in his brief that the trial court's finding of true to allegation (a) in the State's Motion to Adjudicate that appellant had committed a new criminal offense based on the evidence presented or that the adjudication of guilt based on the allegations to which appellant pleaded true, violated his due process/due course of law rights.
We resolve appellant's second issue against him.
Abuse of Discretion
In his first issue, appellant contends the trial court abused its discretion by proceeding to an adjudication of guilt because the State failed to establish by a preponderance of the evidence that appellant committed the new theft offense. 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 that 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. [Panel Op.] 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).
Appellant pleaded true to allegations (h), (j), and (k) of the conditions of community supervision. By his plea of true to violating those three conditions, after admonishment, appellant admitted those allegations and, consequently, the State was not required to present evidence to prove those allegations. Appellant's plea of true, standing alone, is sufficient to support the adjudication of his guilt and the revocation of his community supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979). See Footnote 4 Thus, we need not address appellant's complaint regarding the trial court's finding true the State's allegation that appellant committed a new theft offense. We resolve appellant's first issue against him.
We affirm the trial court judgment.
Do Not Publish
Tex. R. App. P. 47
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Specifically, the State's motion to adjudicate alleged that appellant had violated conditions (a), (h), (j) and (k) of the terms and conditions of his community supervision. Violation of condition (a) was the allegation that appellant had committed a new offense of theft over $1500 and less than $20,000 in cause number F09-62279-K, on or about December 16, 2009, during the term of his probation. The remaining violations involved appellant's failure to pay certain monetary fees assessed, including court costs and fine (h), probation fee (j), and a monetary contribution to Crime Stoppers, Inc. (k).
Footnote 3 This appeal does not involve the trial or conviction in cause number F09-62279-K, but only the adjudication of appellant's guilt and revocation of deferred adjudication probation in cause number 08-72799-HK resulting in appellant's conviction in that case.
Footnote 4 The record shows that appellant had paid some of the money required to be paid. Appellant testified he received disability payments from the Veterans' Administration.