Albert Randon v. The State of Texas--Appeal from 23rd District Court of Brazoria County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-01-00185-CR
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ALBERT RANDON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd Judicial District Court
Brazoria County, Texas
Trial Court No. 21,111
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Ross
O P I N I O N

Albert Randon appeals the trial court's assessment of ten years' imprisonment after it revoked his community supervision. Randon contends the trial court erred in sentencing him based on an erroneous finding that he failed to pay his monthly supervision fee for May and June 1998 because the trial court waived that condition of his community supervision in 1991.

On December 19, 1990, Randon pled guilty to delivery of cocaine. The trial court placed Randon on community supervision for a period of ten years. As conditions of his community supervision, the trial court required Randon to pay a monthly supervision fee of $35.00 on the 19th day of each month and to commit no new criminal offense. On February 21, 1991, the trial court waived the requirement in this case that Randon pay the monthly supervision fee.

In August 1998, the State filed an application to revoke Randon's community supervision alleging (1) he failed to commit no new offense against the laws of Texas, and (2) he failed to pay his supervision fee in May and June of 1998 as previously directed by the trial court. A hearing on the State's motion was held in conjunction with a jury trial on a separate indictment for aggravated sexual assault of a child (also on appeal in a separate case to this Court in appellate cause number 06-01-00183-CR) and a motion to revoke his community supervision for possession of cocaine in another case (also on appeal in a separate case to this Court in appellate cause number 06-01-00184-CR). (1) Randon pled "not true" to the allegations. The trial court found both allegations in the State's petition to be true and imposed a sentence of ten years' imprisonment, with Randon's sentence to be served concurrently with his sentences in the other two cases.

A trial court has broad discretion in imposing conditions of community supervision. Quisenberry v. State, 88 S.W.3d 745, 749 (Tex. App.-Waco 2002, pet. ref'd). We review a trial court's decision to revoke community supervision under an abuse of discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). When there is sufficient evidence to support a finding the defendant violated a condition of his or her community supervision, the trial court does not abuse its discretion by revoking the supervision. Wade v. State, 83 S.W.3d 835, 839-40 (Tex. App.-Texarkana 2002, no pet.). "Proof of a single violation is sufficient to support revocation of community supervision." Id. at 840. A trial court must not, however, consider allegations against the defendant which are either untrue or are otherwise barred for consideration by principles of due process. Cf. In re J.L.D., 74 S.W.3d 166, 169-70 (Tex. App.-Texarkana 2002, no pet.) (trial court violated juvenile's due process rights by revoking probation based on same assaultive conduct for which the court had previously modified juvenile's probation).

As a condition of his community supervision, the trial court ordered Randon to pay a $35.00 supervision fee on the 19th day of each month during the entire period of community supervision. But the trial court waived that condition of community supervision February 21,1991, at the request of Randon and his supervision officer. Therefore, we find the trial court erred by ruling Randon violated condition "R" of his community supervision. Finding error, however, does not end our review. If error is found, we must analyze the error to determine harm. Tex. R. App. P. 44.2.

Rule 44.2 of the Texas Rules of Appellate Procedure provides the possible options for analyzing harm:

(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

 

(b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

 

Tex. R. App. P. 44.2.

The trial court found Randon had violated the terms of his community supervision by committing a new crime and by failing to pay a $35.00 supervision fee for the last two months of his community supervision. With respect to the latter finding (that Randon failed to pay his supervision fee), we have already found the trial court erred. Randon's brief directs the Court's attention to no authority that suggests this error is of constitutional dimension. Even if we were to find the error constitutional, we would not find the error harmful. Prior to assessing punishment, the trial court stated:

I'm fixing to sentence you on all three cases. I will sentence you to serve - I will run these sentences concurrent. I'm not going to stack any of these because I took into consideration the prior incident in Cause 35,327, that was just tried [on the indictment for aggravated sexual assault, appealed as appellate cause number 06-02-00183-CR], and the fact that your probation was violated primarily by the commission of the aggravated sexual assault.

 

(Emphasis added.)

Considering that proof of a single violation is sufficient to support revocation of community supervision, together with the rather minor nature of the alleged failure to pay two monthly supervision fees, as compared with the seriousness of the alleged commission of aggravated sexual assault, and the finding by the trial court that it was revoking Randon's community supervision based primarily on the commission of the new offense, we cannot say the court's erroneous finding that he also failed to make two supervision fee payments contributed to the trial court's sentence. Neither did it affect Randon's substantial rights.

We overrule Randon's sole point of error and affirm the trial court's judgment.

 

Donald R. Ross

Justice

 

Date Submitted: February 21, 2003
Date Decided: March 10, 2003

 

Do Not Publish

1. The issues raised in the other two appellate cases are addressed in separate opinions. See Randon v. State, No. 06-01-00183-CR (Tex. App.-Texarkana Mar. 10, 2003, no pet. h.); Randon v. State, No. 06-01-00184-CR (Tex. App.-Texarkana Mar. 10, 2003, no pet. h.).