DeWayne Antoin Anderson v. The State of Texas--Appeal from 188th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00038-CR

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DEWAYNE ANTOIN ANDERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th Judicial District Court

Gregg County, Texas

Trial Court No. 31112-A

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

On April 23, 2004, DeWayne Antoin Anderson was convicted of tampering with physical evidence // and placed on community supervision for two years. Approximately two months later, on June 24, 2004, the State filed its original application to revoke Anderson's community supervision. After twice amending its application, on January 13, 2005, the State proceeded to a hearing on allegations of evading detention, failure to pay fees, failure to perform the required community service, and failure to submit to a substance abuse program. // The trial court found the State's allegations to be true and sentenced Anderson to two years in the Institutional Division of the Texas Department of Criminal Justice.

Anderson does not challenge the sufficiency of the evidence to sustain the trial court's judgment. Instead, he presents to this Court one point of error, contending the trial court "abuse[d] it's [sic] discretion in revoking [his] probation following [his] objection that the State had failed to prove he was the same DeWayne Anderson who was on probation in this cause." We overrule his contention and affirm the trial court's judgment.

Anderson's Exchange with the Trial Court

At the hearing on the State's application to revoke, the following exchange occurred at the beginning of the proceeding between the trial court and Anderson:

THE COURT:This is 31,112-A. This case is styled the State of Texas versus Dewayne Anderson. What says the State of Texas?

THE STATE:State's ready, Your Honor.

THE COURT:What says the defendant?

DEFENSE:Defense is ready, Your Honor.

THE COURT:Mr. Anderson, I show that on April 23, 2004 you received a two-year sentence probated for two years for the offense of tampering with physical evidence; is that correct?

MR. ANDERSON:Yes, sir.

THE COURT:Before the Court today as I understand it is a second amended application for revocation for probation filed I believe January 11, 2005. Have you gone over that second amended application with your attorney?

MR. ANDERSON:Yes, sir.

THE COURT:Do you understand the allegations against you in that second amended application?

MR. ANDERSON:Yes, sir.

The State then called Officer John Villasenor of the Longview Police Department to testify regarding the evasion of detention allegations. It then called Gregg County community supervision officer Rachel Goree to testify concerning the allegations of other violations of the terms of Anderson's community supervision. Dave Hiles, also of the Gregg County Community Supervision Department, testified regarding Anderson's inability to provide a specimen for urine analysis November 10, 2004. Finally, George Jones, III, of the Sabine Valley Substance Abuse Division Mental Health Mental Retardation, testified regarding Anderson's initial evaluation and his subsequent failure to return to the treatment center.

After the evidence was closed, defense counsel argued that the State failed to prove the identity of the person who was placed on community supervision for tampering with evidence in cause number 31,112-A. //

Anderson's Own Admissions Establish Identity

At a revocation hearing, the State must prove the defendant is the same individual as is reflected in the judgment and order of probation. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). Anderson contends the State failed to do so here.

The Amarillo court heard a similar contention on similar facts, holding that, in the following exchange between the trial court and the defendant, the defendant sufficiently identified himself as the probationer:

THE COURT:The Court is calling for trial Cause No. 200, on the State's Motion to Revoke Probation filed at 4:54 p.m. on April 12, 1990, styled the State of Texas v. Donald Lee Kent. Are you Donald Lee Kent?

DEFENDANT: Yes, sir.

THE COURT:Is the State ready on the State's Motion to Revoke Probation?

MR. CARPER: The State is ready.

THE COURT:Is the Defense ready?

MR. GREEN:Defense is ready.

THE COURT:Mr. Kent, are you familiar with the contentions of the State's Motion to Revoke your probation?

DEFENDANT: Yes, sir.

THE COURT:Counsel, as counsel for the defendant, have you had adequate opportunity to fully review the motion and acquaint yourself with the matters therein?

MR. GREEN:I have, Your Honor.

THE COURT:Mr. Kent, are you ready to proceed with this hearing?

DEFENDANT:Yes, sir.

Kent v. State, 809 S.W.2d 664, 666 (Tex. App. Amarillo 1991, pet. ref'd). The court then concluded that, "by his own admission, appellant, without making his identity an issue, identified himself as the defendant in . . . the proceedings which were at issue in the revocation of probation hearing, and of which the court took judicial knowledge." Id.

Here, the record contains no direct, unequivocal testimony from the community supervision officers that Anderson was the same person who was convicted of and granted community supervision for the offense of tampering with evidence. Goree, who it would appear had more personal contact with Anderson, testified that she knew Anderson and that he was an individual she was supervising. Similarly, Hiles also testified he knew Anderson, having accompanied Anderson to observe the urine analysis specimen. Although neither Goree nor Hiles specifically identified Anderson as the person on community supervision with whom each was familiar, neither testified that the DeWayne Anderson present at the hearing was not the DeWayne Anderson who was on community supervision.

More convincing, however, is Anderson's initial exchange with the trial court. In that exchange and in his own words, Anderson affirmatively identified himself as the individual who had been convicted of and placed on two years of community supervision for tampering with evidence on April 23, 2004. See id.; see also Batiste v. State, 530 S.W.2d 588, 589 (Tex. Crim. App. 1975);Pettit v. State, 662 S.W.2d 427, 429 (Tex. App. Corpus Christi 1983, pet. ref'd). Anderson's admission that he was the person on community supervision in the matter leaves no question as to proper identity. We add that Anderson also pled "not true" to the allegations in the State's application to revoke. See Riera v. State, 662 S.W.2d 606, 607 (Tex. Crim App. 1984).

The State need not prove what the defendant has admitted. See Bryant v. State, No. PD-672-04, 2005 Tex. Crim. App. LEXIS 517, at *12 13 n.20 (Tex. Crim App. Apr. 6, 2005) (citing United States v. Branch, 46 F.3d 440, 442 (5th Cir. 1995)). The record sufficiently establishes that Anderson is the individual who was placed on community supervision April 23, 2004, for tampering with physical evidence.

We overrule Anderson's point of error and affirm the trial court's judgment revoking his community supervision.

Jack Carter

Justice

Submitted: August 30, 2005

Decided: August 31, 2005

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