Daniel Jackson v. The State of Texas--Appeal from 115th District Court of Upshur County

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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00076-CR
______________________________
DANIEL SHAWN JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 12,308
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION

On October 5, 1999, Daniel Shawn Jackson waived a jury trial and pled guilty to sexual assault as charged in the indictment. The charged offense is a second degree felony. See Tex. Pen. Code Ann. 22.011 (Vernon 2003). Pursuant to a plea agreement, the trial court deferred a finding of guilt, placed Jackson on community supervision for a period of five years, and dismissed a second charge against Jackson.

On November 20, 2000, April 25, 2001, and November 5, 2002, the trial court approved three, separate, agreed modifications to the conditions of Jackson's community supervision. The November 5 modification extended Jackson's community supervision for one year and required him to submit to residential drug treatment for a minimum of six months. The prior modifications to Jackson's terms of community supervision had also included periods of incarceration in the Upshur County jail and attendance at drug education programs.

On January 29, 2003, the State filed a final motion to adjudicate Jackson's guilt. The State alleged Jackson had not reported to his community supervision officer during several months preceding November 2002, had not performed his assigned community work service during several months before November 2002, had failed to pay his scheduled fees for community supervision from July 2000 until December 2002, and had failed to submit to and remain at the residential substance abuse treatment facility for no less than six months. Jackson pled "not true" to violating his community supervision.

Jackson's community supervision officer, Linda Keller, testified Jackson failed to successfully complete the residential drug treatment program because he had not followed the rules and regulations of the program. Jackson told the trial court he was kicked out of the residential drug treatment program and the program director wanted him to go to a boot camp facility for a few months and then return to the residential treatment center to continue his treatment for drug use. Jackson testified the rules he violated included unauthorized trading of commissary goods (1) and incomplete performance of his "extra duty" hours. (2) At the conclusion of the hearing, the trial court found Jackson had violated his community supervision, adjudicated Jackson's guilt, and assessed his punishment at twelve years' imprisonment.

On July 2, 2003, Jackson's appellate counsel filed an Anders (3) brief in which he professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal and, as required by Anders, also filed a motion to withdraw. Counsel also sent Jackson a copy of the appellate brief and informed him of his right to file a response pro se and of his right to review the record.

This Court informed Jackson at that time his response, if any, was due by August 1, 2003. As of this date, Jackson has not filed a response pro se. We have independently reviewed the record and the brief filed by counsel in this appeal, and we agree there are no arguable issues that would support an appeal in this case.

Jackson admitted failing to complete the residential drug treatment program as required by the trial court's November 5, 2002, modification order. Accordingly, the trial court did not abuse its discretion by finding Jackson had violated that term of his community supervision. The trial court also assessed Jackson's punishment at twelve years' imprisonment. This is within the range permitted under Texas law. See Tex. Pen. Code Ann. 12.33(a) (Vernon 2003). Therefore, the trial court did not abuse its discretion by adjudicating Jackson's guilt or by assessing his punishment at twelve years' imprisonment.

Finally, Jackson's appellate counsel draws our attention to several errors in the trial court's judgment. First, the trial court's judgment states Jackson pled "true" to violating the terms of his community supervision. Jackson, however, pled "not true." Second, the judgment includes violations that occurred before the November 5, 2002, modification order. At the conclusion of the hearing, the trial court directed the district attorney to prepare the judgment. A trial court may not consider allegations of violations that occurred before a previous modification order when, as is the case here, those same allegations were the subject of a prior state's motion to adjudicate guilt and that motion was dismissed pursuant to an agreed modification and continuation of the defendant's community supervision, as approved by the trial court. See Wester v. State, 542 S.W.2d 403, 405-06 (Tex. Crim. App. 1976). Thus, it appears several pre-November 5, 2002, allegations were erroneously included in the trial court's judgment.

Appellate courts have the power to reform a trial court's judgment. See Mazloum v. State, 772 S.W.2d 131, 132 (Tex. Crim. App. 1989). We reform the judgment to reflect Jackson's plea of "not true" to the alleged violations and to delete the notations regarding any alleged violations that occurred before November 2002 (as these were not properly before the trial court), and we otherwise affirm the trial court's judgment.

 

Donald R. Ross

Justice

 

Date Submitted: October 1, 2003

Date Decided: October 14, 2003

 

Do Not Publish

1. According to Jackson's testimony, he exchanged a bag of coffee and some sweat pants for a ring owned by another resident at the treatment program. The ring was apparently similar to his wedding ring, which Jackson had sold and was seeking to replace.

2. Jackson claimed a peer at the program had failed to record the proper number of hours Jackson worked.

3. Anders v. California, 386 U.S. 738 (1967).

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