Sens, Lawrence Lealand v. The State of Texas--Appeal from 405TH District Court of Galveston County

 Affirmed and Memorandum Opinion filed March 22, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00396-CR

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LAWRENCE LEALAND SENS, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 02CR2021

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M E M O R A N D U M O P I N I O N

Appellant, Lawrence Lealand Sens, appeals from the revocation of his community supervision. In two issues, appellant contends the trial court erred in sentencing him to serve the five year term of imprisonment that was originally imposed upon his conviction for burglary of a habitation. We affirm.

Background

On October 15, 2002, appellant pled guilty to the offense of burglary of a habitation. Tex. Pen. Code Ann. ' 30.02(a) (Vernon 2003). Punishment was assessed at five years= confinement, which was suspended, conditioned on appellant=s compliance with the terms of community supervision. The State subsequently filed a motion to revoke community supervision, alleging thirteen violations of the imposed conditions. Appellant pled true to the allegation that he failed to appear at his March and April 2003 probation meetings, but pled not true to the remainder of the allegations.

At the revocation hearing, the trial court found that appellant violated the condition of his community supervision to which he pled true and also found several other violations including (1) four separate incidents of assault, (2) failure to support his dependents, and (3) failure to pay restitution and fees. The court ordered appellant to serve the original five-year sentence imposed on his burglary conviction.

Discussion

In two issues, appellant challenges the trial court=s order requiring appellant serve the original five-year sentence imposed for his burglary conviction. Specifically, appellant contends (1) the State failed to prove that his failure to pay fees, restitution, and child support was intentional, and (2) the evidence is insufficient to support a finding of Atrue@ for three of the alleged incidents of assault. Therefore, appellant contends the trial court erred by considering these alleged violations when imposing the sentence.

The record supports appellant=s contention that these alleged violations of community supervision may have influenced the trial court=s decision to order appellant to serve the original five-year sentence.[1] Nonetheless, it is unnecessary for us to consider whether there was sufficient evidence to support these alleged violations. The Texas Code of Criminal Procedure provides that A[i]f community supervision is revoked . . ., the judge may proceed to dispose of the case as if there had been no community supervision . . . .@ Tex. Code Crim. Proc. Ann. art. 42.12, ' 23(a) (Vernon Supp. 2004B05). Under this statute, once the trial court properly revoked appellant=s community supervision based on his plea of true to one of the allegations, it was authorized to impose the sentence originally assessed for appellant=s burglary conviction. Because the trial court acted within its statutory authority, there was no error.

We overrule appellant=s two issues. Accordingly, the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed March 22, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] At the sentencing hearing, the trial court stated to appellant, After I placed you on probation in October of 2002, it was only three months until you started the physical abuse against [a female acquaintance] which this Court has found those allegations to be true . . . . I don t think considering the seriousness of the violations that I have found true make [the] restitution center a viable option . . . . The Court s going to sentence you to five years in the Institutional Division of the Texas Department of Criminal Justice.