DAVID RAY WYRICK, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed November 6, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
 
No. 05-07-01410-CR
No. 05-07-01411-CR
 
............................
DAVID RAY WYRICK, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F04-34220-KN and F04-34221-KN
.............................................................
MEMORANDUM OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice O'Neill
        Appellant David Ray Wyrick pleaded guilty to the offenses of indecency with a child by contact in cause number F04-34220-KN and aggravated sexual assault by penetration in cause number F04-34221-KN. He received eight years community service, plus a fine. The State later filed a motion to proceed with adjudication of guilt, which the trial court granted. In two issues, appellant argues the trial court erred by revoking his community supervision because the alleged violations occurred prior to his community supervision taking effect, and the trial court erred by admitting hearsay statements. We affirm.
 
 
Procedural Background
        Appellant pleaded guilty to the indecency with a child and aggravated sexual assault charges before a magistrate. In a “Findings, Conclusions, and Recommendations of Magistrate Original Plea” dated March 16, 2005 and signed by the magistrate, the magistrate recommended appellant be placed on community supervision for eight years and pay a $1500 fine. A docket sheet entry for March 16, 2005 further notes appellant was placed on deferred adjudication for eight years. The “Order Adopting Actions by the Magistrate,” which is a part of the same document as the magistrate's findings and recommendations, is signed by Judge John Nelms; however, he failed to specifically circle whether probation was granted or denied. The record also contains a deferred adjudication order dated March 16, 2005 signed by Judge Fred Tinsley. Finally, the record contains “Conditions of Community Supervision” signed by appellant on March 16, 2005.
        In November 2005, the State filed a motion to proceed with adjudication of guilt in each case alleging appellant violated condition (a) of his probation by committing new offenses in Oklahoma, including public intoxication, driving under the influence of drugs and alcohol, and possessing a controlled substance with intent to deliver and violated condition (h) by failing to pay court costs and a fine. Moreover, in cause number F04-34220-KN, the State alleged appellant violated condition (k) by failing to perform community service.
        On October 10, 2007, appellant judicially confessed and stipulated he violated certain terms of his probation. The trial court found the allegations in the State's motion true, revoked appellant's probation, and sentenced him to twenty-five years' confinement in each cause to run concurrently. This appeal followed.
Revocation of Community Supervision
        Appellant first asserts the trial court erred in revoking his community supervision because the violations occurred prior to the community supervision taking effect. Specifically, he claims the district judge never adopted the magistrate's findings and recommendations because the order is not dated by Judge Nelms, nor does it state whether probation was granted or denied. He further asserts the dated order on file and signed by Judge Tinsley is not controlling because (1) he could not be the presiding judge at the same time as Judge Nelms, and (2) he did not become presiding judge of the district court until January 1, 2007; therefore, appellant's probation could not have become effective until after that date, which is after his alleged probation violations.
        We review a trial court's decision to revoke a defendant's community supervision under an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Leach v. State, 170 S.W.3d 669, 672 (Tex. App.-Fort Worth 2005, pet. ref'd). The proof of a single alleged violation, by a preponderance of the evidence, is sufficient to support a trial court's revocation judgment. Rickels, 202 S.W.3d at 763-64; Leach, 170 S.W.3d at 672.
        We disagree with appellant's arguments that his community supervision violations occurred prior to the community supervision taking effect. The record contains the “Findings, Conclusions, and Recommendations of Magistrate Original Plea” signed March 16, 2005 in which the magistrate recommended appellant be placed on community supervision for eight years and pay a $1500 fine. The “Order Adopting Actions of Magistrate” at the bottom of the document states the following:
 
        BE IT KNOWN that the Court has reviewed the actions taken by the Magistrate sitting for this Court in the above numbered and styled cause, which include findings, conclusions, and recommendations contained in this document, all orders contained on the docket sheet in this cause and within the papers filed in this cause, as well as any exhibits introduced into evidence in this cause.
 
 
 
        IT IS HEREBY ORDERED AND DECREED that the Court specifically adopts and ratifies the actions taken by the Magistrate on behalf of this Court in compliance with Subchapter D of Chapter 54 of the Texas Government Code and further GRANTS DENIES community supervision to Defendant.
 
Judge John Nelms's signature then appears on the judge signature line.
        Although Judge Nelms failed to specifically circle whether community supervision was granted or denied, the overall language of the order indicates he approved the magistrate's recommendation. The second paragraph states “it is hereby ordered and decreed that the Court specifically adopts and ratifies the actions taken by the Magistrate. . .,” which was its recommendation of eight years community supervision plus a fine. Although Judge Nelms failed to then take the further step and specifically circle either “GRANTS DENIES,” we refuse to ignore the presumption of regularity for the order under these facts. A presumption of regularity applies to court proceedings and orders, and appellant has failed to overcome this presumption by presenting a record that affirmatively shows the trial court did not adopt the magistrate's order. See, e.g., Christian v. State, 865 S.W.2d 198, 202 (Tex. App.-Dallas 1993, pet. ref'd); see also Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000) (“The presumption of regularity is a judicial construct that requires a reviewing court, absent evidence of impropriety, to indulge every presumption in favor of the regularity of the proceedings and documents in the lower court.”).
        We further acknowledge Judge Nelms failed to date the order; however, under the facts of this case, the record is replete with documents and testimony indicating appellant was placed on community supervision on March 16, 2005. Appellant signed a “Conditions of Community Supervision” on March 16, 2005. On October 10, 2007, he judicially confessed and stipulated he violated certain terms of his probation. During the revocation hearing, he admitted he received a copy of the written terms and conditions of probation in March 2005. He further stated he wanted to take responsibility for his violations and considered himself on probation since March 2005.
        Therefore, the record indicates appellant's community supervision began on March 16, 2005, and his violations occurred after this date. After accepting the benefits of probation, appellant may not now claim the leniency was defective. See, e.g., Tillis v. State, 647 S.W.2d 268, 269 (Tex. Crim. App. 1983) (concluding appellant was on probation as a “matter of fact” when record indicated court explained conditions of probation to appellant, and he received a copy of his probation terms, which he signed); Trcka v. State, 744 S.W.2d 677, 679 (Tex. App.-Austin 1988, pet. ref'd) (noting appellant could not, after accepting the benefits of probationary release, complain on appeal that such leniency was a defect).
        Thus, under the facts of this case, we conclude the trial court did not abuse its discretion in revoking appellant's probation and adjudicating guilt. Appellant's first issue is overruled.    See Footnote 1 
Hearsay Testimony
        In his second issue, appellant complains the trial court abused its discretion in admitting hearsay testimony that the victim did not want appellant released. He further argues the testimony harmed him because it had more than a slight influence on the trial court's decision to adjudicate his guilt and sentence him to twenty-five years' confinement.
        Assuming without deciding the trial court erred in admitting the statements, Texas Rule of Appellate Procedure 44.2(b) provides that we “must disregard a non-constitutional error that does not affect a criminal defendant's 'substantial rights.'” Tex. R. App. P. 44.2(b); Bourque v. State, 156 S.W.3d 675, 677 (Tex. App.-Dallas 2005, pet. ref'd). Under rule 44.2(b), we may not reverse for nonconstitutional error if, after examining the record as a whole, we have fair assurance that the error, if any, did not have a substantial and injurious effect or influence the court's decision. Bourque, 156 S.W.3d at 677.
        After examining the entire record, we have fair assurance that the error, if any, did not have a “substantial and injurious effect” or influence the trial court's decision to adjudicate guilt and impose sentencing. Appellant pleaded true to violating conditions of his probation and admitted the same during his hearing. Once appellant pleaded true to the allegations, the trial court's discretion to adjudicate his guilt and revoke probation became absolute. See Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. [Panel Op.] 1979) (noting when the finding of a violation of a condition of probation is supported by a preponderance of the evidence and procedural problems are not raised, the discretion of the trial court to choose the alternative of revocation is at least substantially absolute); Moore v. State, 11 S.W.3d 495, 498 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (noting proof of any one of the alleged violations is sufficient to support a revocation of community supervision). Thus, we cannot say the statements influenced the trial court's decision to adjudicate guilt or that appellant was harmed by the admission of the statements. We overrule appellant's second issue
        Having overruled appellant's issues, we affirm the trial court's judgment.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071410F.U05
 
 
Footnote 1 Having reached this conclusion, we need not address appellant's argument regarding the order signed by Judge Tinsley on March 16, 2005.