BRIAN DALE DUNCAN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued December 3, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00127-CR
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BRIAN DALE DUNCAN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-40018-LN
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OPINION
Before Justices Bridges, Richter, and Mazzant
Opinion By Justice Bridges
        Brian Dale Duncan appeals following the adjudication of his guilt for sexual assault of a child. In four points of error, appellant contends the trial court abused its discretion by adjudicating him guilty and by not specifying which allegations it found had been proven, and the sentence is grossly disproportionate to the offense and violates the United States and Texas Constitutions. We affirm the trial court's judgment as modified.
Background
 
        Appellant waived a jury and pleaded guilty to sexual assault of a child. See Tex. Penal Code Ann. § 22.011(a)(2)(A) (Vernon 2003). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on five years' community supervision, and assessed a $2500 fine. The State later moved to adjudicate guilt, alleging appellant violated several terms of his community supervision. After a hearing, the trial court granted the motion, adjudicated appellant guilty, and assessed punishment at twelve years' imprisonment.
Abuse of Discretion
 
        In his first point of error, appellant argues the trial court abused its discretion by revoking his community supervision and adjudicating his guilt. Appellant asserts that because the trial court did not state it found appellant had violated each of the conditions as stated in the motion to adjudicate, the trial court abused its discretion in adjudicating appellant guilty. The State responds that the trial court did not abuse its discretion by revoking appellant's community supervision and adjudicating appellant guilty.
        Appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In determining questions concerning sufficiency of the evidence in probation revocation cases, the burden of proof is by a preponderance of the evidence. Id. An order revoking probation must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of probation. Id. at 763-64. A finding of a single violation of community supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980); Leach v. State, 170 S.W.3d 669, 672 (Tex. App.-Fort Worth 2005, pet. ref'd.). Thus, in order to prevail, appellant must successfully challenge all the findings that support the revocation order. See Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978); Harris v. State, 160 S.W.3d 621, 626 (Tex. App.-Waco 2005, no pet.).
        In its amended motion to adjudicate, the State alleged appellant violated several terms of his community supervision, including failing to pay costs and fees, having contact with an underage female online, having sex in a public place with his girlfriend, failing to complete polygraph examination, and using marijuana and methamphetamine with his girlfriend. In a hearing, appellant pleaded true to the allegations contained in the amended motion to adjudicate. A plea of true, standing alone, supports revocation of community supervision. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979). Appellant's signed plea of true and stipulation of evidence was admitted into evidence.
        We conclude the trial court did not abuse its discretion in revoking appellant's community supervision and adjudicating his guilt. See Rickels, 202 S.W.3d at 763-64. We overrule appellant's first point of error.
        In his second point of error, appellant contends the trial court abused its discretion by not specifying which allegation it found he violated. Appellant asserts the judgment adjudicating guilt failed to satisfy the minimum requirements of due process because the trial court did not set out the reasons for revoking his community supervision. The State responds appellant did not request that specific findings be included in the judgment, and the trial court is not required to make specific findings.
        The minimum requirements of due process that must be observed in probation revocation hearings include a written statement by the fact finder as to the evidence relied on and the reasons for revoking probation. See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). However, Texas courts require a defendant to make a request for specific findings. See King v. State, 649 S.W.2d 42, 46 (Tex. Crim. App.1983). In the absence of such a request, the trial court's failure to make specific findings in the order revoking probation is not reversible error. Id.
        Appellant did not request specific findings. Moreover, the motion to adjudicate is included in the record, and the judgment recites the trial court found the allegations in the motion to adjudicate had been proven. We conclude the judgment adjudicating guilt satisfies minimum due process requirements. We overrule appellant's second point of error.
Cruel and Unusual Punishment
 
        In his third and fourth points of error, appellant argues the sentence is disproportionate to the offense and constitutes cruel and unusual punishment, in violation of the United States and Texas Constitutions because he never missed his counseling sessions and his case manager was willing to continue working with him. The State responds appellant failed to preserve his complaint for appellate review and, alternatively, the sentence does not violate the United States or Texas Constitution.
        Appellant did not complain about the sentence either at the time it was imposed or in his motion for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Castaneda, 135 S.W.3d at 723. Moreover, the sentence is within the statutory punishment range for the offense. See Tex. Pen. Code Ann. § 12.33 (Vernon 2003); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). We overrule appellant's third and fourth points of error.
 
Modify Judgment
 
        The record shows the State filed an amended motion to adjudicate guilt. During a hearing on the motion, the trial court found appellant had violated the terms of his community supervision as outlined in the amended motion to adjudicate. However, the trial court's written judgment incorrectly recites appellant violated the conditions of community supervision “as set out in the State's original motion to adjudicate guilt.” We modify the trial court's judgment to show appellant violated the terms and conditions of community supervision “as set out in the State's amended motion to adjudicate guilt.” See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080127F.U05