Johnathan Lee Adcock v. The State of Texas--Appeal from 2nd District Court of Cherokee County

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NO. 12-11-00043-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS JOHNATHAN LEE ADCOCK, APPELLANT § APPEAL FROM THE SECOND V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § CHEROKEE COUNTY, TEXAS MEMORANDUM OPINION Jonathan Lee Adcock appeals the revocation of his deferred adjudication community supervision, following which he was sentenced to imprisonment for two years. Appellant raises four issues on appeal. We modify and, as modified, affirm. BACKGROUND Appellant was charged by indictment with criminal mischief and pleaded guilty. The trial court deferred finding Appellant guilty and placed him on community supervision for five years. On August 19, 2010, the State filed a motion to proceed to final adjudication alleging that Appellant had violated certain conditions of his community supervision. Specifically, the State argued that Appellant committed the offense of driving while intoxicated. The trial court conducted a hearing on the State s motion. At the hearing, Appellant pleaded true to the allegations in the State s motion. Thereafter, the trial court found the allegations in the State s motion to be true, revoked Appellant s community supervision, adjudicated Appellant guilty of criminal mischief, and sentenced Appellant to imprisonment for two years. This appeal followed. EVIDENTIARY SUFFICIENCY TO SUPPORT REVOCATION OF COMMUNITY SUPERVISION In his first issue, Appellant contends that the trial court erred in revoking his community supervision because the evidence is insufficient to support the revocation. The only question presented in an appeal from an order revoking community supervision is whether the trial court abused its discretion in revoking the defendant=s community supervision. See Lloyd v. State, 574 S.W.2d 159, 160 (Tex. Crim. App. [Panel Op.] 1978). The standard of proof in a revocation proceeding is a preponderance of the evidence. Id. In order to satisfy its burden of proof, the State must prove that the greater weight of the credible evidence before the trial court creates a reasonable belief that a condition of community supervision has been violated as alleged in the motion to revoke. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). In the instant case, Appellant pleaded true to the allegations in the State s motion including the allegation that he committed the offense of driving while intoxicated. A plea of true to any one of the alleged violations contained in a motion to revoke is sufficient to support the trial court's order revoking community supervision. See Moore v. State, 11 S.W.3d 495, 498 n.1 (Tex. App. Houston [14th Dist.] 2000, no pet.). Once a plea of true has been entered, a defendant may not challenge the sufficiency of the evidence to support the subsequent revocation. Id. (citing Rincon v. State, 615 S.W.2d 746, 747 (Tex. Crim. App. [Panel Op.] 1981); Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); Hays v. State, 933 S.W.2d 659, 661 (Tex. App.BSan Antonio 1996, no pet.)). Therefore, since Appellant pleaded true to the State s allegations in its motion, he may not challenge the sufficiency of the evidence to support the trial court=s revocation of his community supervision. Accordingly, we hold that the trial court did not abuse its discretion in revoking Appellant s community supervision. Appellant s first issue is overruled. RESTITUTION AND ATTORNEY S FEES In his second issue, Appellant contends that the trial court erred in ordering that he pay $3,349.00 in restitution because it failed to assess restitution in its oral pronouncement of sentence. In his fourth issue, Appellant contends that the trial court erred in ordering that he pay court appointed attorney s fees because it failed to assess these fees in its oral pronouncement of sentence. When there is a variation between the oral pronouncement of sentence and the written 2 memorialization of the sentence, the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). Here, the State concedes that the trial court erred in assessing restitution and attorney s fees in the judgment of conviction where no restitution or attorney s fees were assessed in the trial court s oral pronouncement of sentence. Accordingly, we hold that the trial court s written judgment should be reformed to comport with its oral pronouncement of sentence. Appellant s second and fourth issues are sustained..1 CONCLUSION We have sustained Appellant s second and fourth issues and overruled his first issue. Having done so, we modify the trial court s judgment by deleting the order that Appellant pay restitution in the amount of $3,349.00 and by deleting the order that Appellant pay court appointed attorney s fees. We affirm the trial court s judgment as modified. JAMES T. WORTHEN Chief Justice Opinion delivered September 7, 2011. Panel consisted of Worthen, C.J., Griffith, and Hoyle, J. (DO NOT PUBLISH) 1 Because we have sustained Appellant s second issue, we do not reach his third issue concerning whether the amount of restitution ordered lacks evidentiary support. 3

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