John Wesley Lockett v. The State of Texas--Appeal from 244th District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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JOHN WESLEY LOCKETT, ) No. 08-03-00204-CR

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Appellant, ) Appeal from

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v. ) 244th District Court

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THE STATE OF TEXAS, ) of Ector County, Texas

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Appellee. ) (TC# C-22,821)

MEMORANDUM OPINION

John Wesley Lockett appeals the trial court s order revoking his community supervision. Appellant waived his right to a jury trial and entered a negotiated plea of guilty to delivery of less than 28 grams of cocaine. In accordance with the plea bargain, the trial court assessed punishment at a fine of $2,000 and imprisonment for a term of ten years, probated for ten years. Finding that Appellant had violated the terms and conditions of community supervision by failing to report, failing to pay monthly fees, and failing to notify his supervising officer of his change of address, the trial court subsequently revoked Appellant s community supervision. We affirm.

FACTUAL SUMMARY

On July 5, 1995, the trial court signed an order placing Appellant on community supervision for a term of ten years. Shortly thereafter, the court permitted Appellant to transfer his community supervision to Brenham, Texas. The transfer order specifically required Appellant to report on the 2nd and 4th Wednesday of each month. On April 8, 1997, the trial court found that Appellant had violated the terms and conditions of community supervision but continued him on probation. The court s written order included the following terms and conditions:

d.Make a TRUTHFUL report in WRITING and IN PERSON, to his Community Supervision Officer on the 2nd and 4th Wednesday of each month. In the event he is legally incarcerated, detained, deported or excluded from The United States of America, he is required to contact his Community Supervision Officer by MAIL and by TELEPHONE on each of his required reporting dates.

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h.At ALL TIMES keep his Community Supervision Officer advised of the CORRECT ADDRESS of his RESIDENCE and his PLACE OF EMPLOYMENT and NOTIFY his Community Supervision Officer WITHIN 48 HOURS of any ARREST or change in address of residence or employment.

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m.Pay Restitution in the amount of $530.00, Court Costs of $84.50, a Fine of $2,000.00, a Supervision Fee of $40.00 per month, Attorney fees of $900.00, Travel Expense of $227.88, // and Back Supervision Fees in the amount of $252.00, ALL OF THE ABOVE TO BE PAID AT THE RATE OF $90.00 PER MONTH, due on or before the 1st day of each month. IF FOR ANY REASON, the Defendant is indigent and cannot pay any or all of the monthly payment, HE shall make and sign an affidavit on the 1st day of the month when such payment is due.

At the conclusion of the lengthy order, Appellant signed immediately beneath a paragraph stating that he had read or another person had read to him the foregoing conditions of community supervision and he fully understood them. He also acknowledged, in writing, that he had received a copy of the terms and conditions of community supervision.

On March 20, 1998, the State filed a motion to revoke Appellant s community supervision based on allegations that he had violated condition (d) by failing to report on January 14, 1998 or any subsequent date ordered by the court, condition (m) by failing to make a monthly payment of $90.00 on May 1, 1997 or any subsequent date, and condition (h) by failing to his advise his community supervision officer of a change of address. At the hearing, Appellant entered a plea of true to the violations of conditions (d) and (m)(failure to report and failure to pay), but pled not true to the violation of condition (h)(change of address). The trial court found all three allegations true and revoked community supervision.

REVOCATION FOR FAILURE TO REPORT

In his sole issue on appeal, Appellant complains that the trial court erred in revoking community supervision because there is no evidence that the probation officer informed Appellant that he was required to report monthly. The State responds that Appellant s complaint is without merit because he entered a plea of true to the allegation that he failed to report. We agree with the State.

In a probation revocation hearing, the State must establish by a preponderance of the evidence that the defendant violated a condition of his probation. See Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). The trial court is the sole trier of the facts and the credibility of the witnesses. See Jackson v. State, 915 S.W.2d 104, 105 (Tex.App.--San Antonio 1996, no pet.). Consequently, appellate review of a probation revocation order is limited to a determination of whether the trial court abused its discretion. Id. at 106. In determining whether the trial court abused its discretion, we must view the evidence presented at the hearing in the light most favorable to the trial court s finding. Jones v. State, 589 S.W.2d 419, 420 (Tex.Crim.App. 1979); Duke v. State, 2 S.W.3d 512, 515 (Tex.App.--San Antonio 1999, no pet.). When the State has sustained its burden of proving the allegation by a preponderance of the evidence and no procedural obstacle is raised, the decision to revoke probation is within the discretion of the trial court. Flournoy v. State, 589 S.W.2d 705, 707 (Tex.Crim.App. 1979); Gordon v. State, 4 S.W.3d 32, 35 (Tex.App.--El Paso 1999, no pet.). Under such circumstances, the trial court s discretion is substantially absolute. Flournoy, 589 S.W.2d at 708; Gordon, 4 S.W.3d at 35. Thus, the only question presented on appeal is whether the trial court abused its discretion in revoking probation. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. 1981); Gordon, 4 S.W.3d at 35. If a single ground for revocation is supported by a preponderance of the evidence and is otherwise valid, then an abuse of discretion is not shown. Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. 1980); Gordon, 4 S.W.3d at 35.

As noted by Appellant, the State must prove that he was ordered to report on a date certain in order to support a finding that he violated the requirement that he report. See Campbell v. State, 420 S.W.2d 715, 716 (Tex.Crim.App. 1967)(finding of failure to report not supported by sufficient evidence where trial court s order delegated to probation officer responsibility for setting reporting dates and evidence did not show that probation officer informed defendant of reporting date). In this case, however, the trial court s order specifically required Appellant to report on certain dates and Appellant signed an acknowledgment that he had been informed of all the terms and conditions. More importantly, Appellant entered a plea of true to this allegation. A plea of true, standing alone, is sufficient to support the trial court s revocation order. Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979); Hays v. State, 933 S.W.2d 659, 661 (Tex.App.--San Antonio 1996, no pet.). Further, Appellant does not challenge the trial court s determination that he had also violated conditions (h) and (m). Either of those violations is sufficient to support the trial court s decision to revoke community supervision. Consequently, the trial court did not abuse its discretion by revoking Appellant s community supervision. Issue One is overruled and the judgment of the trial court is affirmed.

June 17, 2004

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)