Corey D. Henderson v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-99-149-CR

COREY D. HENDERSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 26,527

O P I N I O N

Appellant Corey Henderson pleaded guilty to the offense of aggravated assault and was sentenced to ten years incarceration, probated for ten years. The State subsequently filed a motion to revoke, alleging Henderson had violated four conditions of his probation. The court found the State s allegations to be true and revoked Henderson s probation. We will affirm.

FACTUAL AND PROCEDURAL HISTORY

On February 13, 1997, Corey Henderson was charged with aggravated assault based on allegations that he caused serious bodily injury to the victim, Charles Hicks, by striking him with a baseball bat and golf club. On June 19, Henderson pleaded guilty to the offense, waiving trial by jury and consenting to the oral and written stipulations of the evidence. The court denied Henderson s request for deferred adjudication, sentenced him to ten years probation and assessed a $1000 fine.

On December 18, 1998, the State filed a motion to revoke Henderson s probation, alleging:

(1) that Henderson violated condition number one of his probation by committing a subsequent offense against the State of Texas; specifically, that Henderson pled guilty on December 4, 1998 to the offense of theft by check;

(2) that Henderson violated condition number seven of his probation by leaving Navarro County on December 10, 1998 without the permission of his community supervision officer;

(3) that Henderson violated condition number eleven of his probation by failing to pay costs of court; and,

(4) that Henderson violated condition number thirteen of his probation by failing to pay restitution to the victim in the amount of $1000.

After a hearing, the court found the allegations to be true and rendered judgment revoking Henderson s probation. Henderson asserts the trial court erred in so doing because the State failed to meet its burden of proof with respect to all four violations alleged in its motion to revoke.

STANDARD OF REVIEW

A proceeding to revoke probation is neither criminal nor civil, but rather an administrative

proceeding. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The State bears the burden of proving by a preponderance of the evidence that the defendant violated the terms of his probation. Id. (citing Cardona v. State, 665 S.W.2d 492, 493-95 (Tex. Crim. App. 1984)). A revocation may be supported by proof of a single violation of the defendant s terms of probation. Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. 1978); Dunn v. State, 997 S.W.2d 885, 887 (Tex. App. Waco 1999, pet. ref d). The only issue on appeal from a trial court s order revoking probation is whether the trial court abused its discretion. Flournoy v. State, 589 S.W.2d 705, 709 (Tex. Crim. App. 1979).

SUBSEQUENT OFFENSE

Henderson s first issue asserts the trial court abused its discretion in revoking his probation based on the State s allegation that he committed a subsequent offense in violation of condition one of his probation. Incorporated within this issue are four sub-issues presented for our review.

Henderson s first sub-issue asserts the State failed to meet its burden to sufficiently identify Henderson as the person that pled guilty to the subsequent offense of theft by check. At the outset of the revocation hearing, the Court took judicial notice of the judgment of conviction for aggravated assault and the order granting probation. The State then called Bill Hill, Henderson s community supervision officer. Hill identified Henderson in court as the same Corey D. Henderson which he supervised in connection with his aggravated assault conviction. The State then introduced a certified copy of an information filed in Navarro County Court charging Corey D. Henderson with the offense of theft by check. The State also introduced certified copies of the order granting community supervision for that offense, the sworn complaint filed against Henderson, and the criminal docket sheet. The following exchange then occurred:

[PROSECUTOR]: Is the Corey D. Henderson that is named and show[n] as being convicted in the County Court on December the 4th, 1998, in Cause Number 4587 887 for the misdemeanor offense of theft by check, the same Corey D. Henderson that is present in court today?

MR. DUNN: Your Honor, we object, unless this witness can was there when the conviction was had, or they can establish, by some fingerprint or some other identification. That s outside the personal knowledge of this witness.

THE COURT: Well, I m going to allow the witness to testify if he has personal knowledge of this defendant, the same one who is the subject of this suit and is the subject of that proceeding, also.

THE WITNESS: Yes, he is. I was present in the courtroom.

THE COURT: All right.

Henderson argues this testimony is insufficient to establish that he was the same Corey D. Henderson who pled guilty and was convicted of the subsequent offense of theft by check.

The Court of Criminal Appeals has expressly condoned several methods of proving prior convictions in a probation revocation setting. These include: (1) testimony of a witness who is able to identify the accused as the person previously convicted, (2) introduction of certified copies of the records of the Texas Department of Criminal Justice or a county jail including fingerprints of the defendant, coupled with expert testimony identifying them as those of the defendant, and (3) stipulation or judicial admission of the defendant. Long v. State, 390 S.W.2d 138, 141 (Tex. Crim. App. 1979) (citing Cain v. State, 468 S.W.2d 856, 859 (Tex. Crim. App. 1971)). Hill testified that he was Henderson s community supervision officer in connection with the aggravated assault conviction, and that he was present in the courtroom when Henderson was convicted of the subsequent offense of theft by check. Based on this testimony, the trial court could properly have concluded that the Appellant and the Corey D. Henderson convicted of theft on December 4, 1998 were one and the same person. Henderson s first sub-issue is overruled.

In his second sub-issue, Henderson contends the State failed to establish that Henderson violated the condition of probation after probation was granted. The record of the revocation hearing must indicate that the Appellant violated the conditions of his probation during the probationary term. Mason v. State, 438 S.W.2d 556, 557 (Tex. Crim. App. 1969).

As noted above, the trial court took judicial notice of the judgment of conviction for aggravated assault and the order granting probation, both dated June 19, 1997. Later in the hearing, the State introduced certified copies of the information filed in Navarro County Court charging Corey D. Henderson with committing theft on or about March 7, 1998, and the order granting community supervision, dated December 4, 1998. The testimony of Bill Hill sufficiently tied Henderson to both the original order of probation and the subsequent theft conviction. The trial court could properly have reached the necessary conclusion that Henderson s probation commenced prior to his commission of theft. Henderson s second sub-issue is overruled.

In his third sub-issue, Henderson complains of the absence of a finding that his conviction for a subsequent offense was a final conviction. To the extent that this sub-issue complains of the failure of the trial court to make certain findings of fact, it was waived by Henderson s failure to request such findings. Fronatt v. State, 543 S.W.2d 140, 143 (Tex. Crim. App. 1976). Furthermore, the record does not indicate that this complaint was ever presented to the trial court. Tex. R. App. P. 33.1(a). Henderson s third sub-issue is overruled.

In the final sub-issue contained within Henderson s first issue, he challenges the voluntariness of the guilty plea, counsel waiver, and jury waiver entered into as part of the theft prosecution which served as a basis for revocation of his probation. The record contains no indication that this complaint was ever presented to the trial court. Tex. R. App. P. 33.1(a). Henderson s final sub-issue is overruled.

Having overruled all sub-issues contained within Henderson s first issue, we hold the trial court did not abuse its discretion in revoking his probation based on commission of a subsequent offense in violation of condition one of his probation. We address only those issues necessary to the disposition of the case. See Tex. R. App. P. 44.2. We need not reach Henderson s remaining issues, which challenge revocation based on additional allegations in the State s motion to revoke. Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. 1978).

The judgment of the trial court is affirmed.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Vance and

Justice Gray

Affirmed

Opinion delivered and filed May 24, 2000

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