Melissa Ann Jones v. The State of Texas--Appeal from County Court at Law No 2 of Collin County

IN THE

TENTH COURT OF APPEALS

No. 10-97-028-CR

MELISSA ANN JONES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law No. 2

Collin County, Texas

Trial Court # 2-274-91

O P I N I O N

Appellant Jones appeals from a judgment revoking probation in a Driving While Intoxicated case, and sentencing her to 50 days in the county jail and a $750 fine.

Appellant was found guilty of DWI on January 30, 1992, and assessed 90 days in jail and a $750 fine, probated for 2 years.

The State filed a motion to revoke Appellant's probation in May 1993, and in January 1994, filed an amended motion to revoke.

On September 18, 1995, Appellant signed a "Stipulation of Facts-Probation Revocation" in which she pled true to the allegations in the State's amended motion to revoke which alleged: (1) conviction for DWI in Bexar County in January 1993; (2) conviction for DWI in Bexar County in September 1993; (3) withdrawn; (4) failed to pay $150 of the $750 fine in instant conviction; (5) failed to pay $50.50 of court costs in instant conviction; and (6) failed to pay supervision fees from June through December 1993, in instant case.

The trial court found the violations of the above conditions of probation to be true, revoked Appellant's probation, and assessed Appellant 50 days in jail and a $750 fine plus $215.50 court costs. The court further found that the $750 fine and $215.50 court costs had been paid.

Appellant appeals on 3 points of error.

Point 1 asserts "the trial court abused its discretion in revoking Appellant's probation where Appellant reported to a Bexar County probation officer as directed and that officer told her she could quit reporting and there was a mix-up as to what Appellant was supposed to do."

Appellant's Collin County probation in this case was transferred to Bexar County where Appellant had moved. In the 17th month of her 2-year probation her probation officer told her she could quit reporting and she thought her probation was over. At that time she was current with her payments of probation fees, costs, and fine.

The above only relates to violations (4), (5), and (6), and does not relate to or excuse Appellant for violations (1) and (2) which were the two new convictions for DWI in Bexar County.

Proof of any one of the alleged violation of the conditions of probation is sufficient to support the order of revocation. Sanchez v. State, 603 S.W.2d 469, 470 (Tex. Crim. App. 1979).

There was sufficient evidence of violation of allegations (1) and (2) and these were not contested by Appellant.

Point 1 is overruled.

Point two asserts "the trial court committed reversible error where there is no service of a copy of the State's amended motion to revoke probation on the appellant."

Appellant asserts there was no evidence that the State's amended motion to revoke was ever served on her.

Appellant signed the "Stipulation of Facts-Probation Revocation" in which she stipulated that she knows and fully understands what she was charged with in the motion to revoke; then pleads true to the two DWI conviction subsequent to her conviction in the case for which this probation revocation was filed; and then states that her plea of true was a legally sufficient basis for the court to revoke her probation.

There is no evidence in this record that the State's amended motion to revoke was not served on Appellant. Moreover, the contention was raised for the first time on appeal and is waived.

Point 2 is overruled.

Point 3 asserts "consent by the state to defendant's waiver of a jury being obligatory, but absent the prosecutions's failure to sign the jury form entitles Appellant to a reversal of her conviction."

The State's failure to consent in writing to a jury waiver as required by statute is not error as to defendant, or from which defendant can complain. Shaffer v. State, 769 S.W.2d 943 (Tex. Crim. App. 1989), reh g, 780 S.W.2d 801.

Additionally, Article 1.13, Texas Code of Criminal Procedure, requiring waiver of a jury trial to be in writing, does not apply in misdemeanor cases. Schultze v. State, 626 S.W.2d 89 (Tex. App. Corpus Christi 1981, pet. ref d).

Point 3 is overruled

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed November 12, 1997

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