Monica Monique Haynes v. The State of Texas--Appeal from Crim Dist Ct of Jefferson County

IN THE

TENTH COURT OF APPEALS

No. 10-03-00119-CR

Monica Monique Haynes,

Appellant

v.

The State of Texas,

Appellee

From the Criminal District Court

Jefferson County, Texas

Trial Court # 84205

MEMORANDUM Opinion

After a bench trial, Monica Haynes was found guilty of felony theft. Tex. Pen. Code Ann. 31.03 (Vernon Supp. 2004). The Court assessed punishment by confinement in a state jail facility for a term of 2 years but entered a community supervision order for a period of 5 years. Later, the prosecution filed a motion to revoke community supervision. Following a hearing, the Court revoked her community supervision and assessed punishment of 2 years confinement.

Haynes brings eleven issues on appeal. Issues one through five concern Haynes s contention that the trial judge himself, not Haynes, entered Haynes s pleas to the revocation motion. Issues six through nine complain of the trial court s failure to make findings. Issue ten contends the trial judge failed to remain impartial. Issue eleven contends Haynes is entitled to two days for each day served in county jail.

We will overrule her issues and affirm the judgment.

BACKGROUND

On October 10, 2001, Haynes entered a no contest plea to felony theft. On November 5, the Court adjudicated guilt and assessed punishment at 2 years confinement, a $2,000 fine, and $800 restitution. The Court suspended the sentence and placed Haynes on probation for 5 years with a requirement that she serve 60 days in the county jail.

Haynes was later arrested for theft, and a motion to revoke community supervision was filed. On February 21, 2003, the Court convened a hearing on the motion to revoke, alleging three counts: (1) theft from Kimberly Green, (2) theft from Torry Herring, and (3) failure to pay court assessed fines and fees. Haynes entered a plea of Not True to each of the three counts. The State then presented evidence. A bookkeeper for Jefferson County Adult Probation testified to Haynes s failure to pay required fees; Green and Herring testified to the thefts. Haynes testified in her own defense, contending that she had obtained the property by purchase from an unidentified third party without knowing it was stolen. The Court found that counts 1, 2, and 3 were true and revoked Haynes s probation.

Standard of Review

Once granted, probation should not be arbitrarily withdrawn by the court; the court is not authorized to revoke probation absent a showing that the probationer has violated a condition imposed by the court. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987). In a revocation proceeding, the state must prove the allegations of the motion by a preponderance of the evidence. Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1987). The trial judge is the sole trier of the facts, the credibility of the witnesses, and the weight to be given their testimony. Ex parte Tarver, 725 S.W.2d 195, 198 (Tex. Crim. App. 1986); Diaz v. State, 516 S.W.2d 154, 156 (Tex. Crim. App. 1974). We review an order revoking probation by determining whether the court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).

Entering Pleas

In her first five issues, Haynes complains that the trial court (1) abused its discretion by itself entering formal pleas to the revocation motion on her behalf; (2) abused its discretion by entering her pleas without informing her of the charges in violation of her Sixth Amendment right; (3) exceeded its authority by entering her plea and sentencing her without giving her the opportunity to speak; (4) abused its discretion by entering her plea without providing her with a meaningful opportunity to present evidence in mitigation; and (5) exceeded its authority as a matter of law by entering a plea for her.

We need not decide the merits of issues (1) and (5) because Haynes failed to preserve these issues for appeal. Tex. R. App. P. 33.1. The contemporaneous objection rule applies to any alleged violation of due process in probation revocation hearings. Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992); Rogersv. State, 640 S.W.2d 248, 265 (Tex. Crim. App. 1982). Haynes did not object at the time the trial judge expressly entered the pleas. Haynes did not file a motion for new trial, and she raises this issue for the first time on appeal. Her complaint is therefore waived, and we overrule the issues.

In issues (3) and (4) Haynes complains that she was not given an opportunity to speak or present evidence of mitigation during the hearing. The State argues that Haynes was given an opportunity to present evidence, testified, and addressed the court on punishment.[1] Again, we need not decide the merits of her claims because she failed to preserve the issues for appeal. Tex. R. App. P. 33.1. Haynes did not object to the proceedings at any time. She argues that she had no time to object because of the rapidity of the proceeding. She cites Issa. In Issa, the Court of Criminal Appeals found that the appellant had no opportunity to object to being sentenced without a hearing because the trial court announced its findings, revocation, and sentence in one pronouncement. 826 S.W.2d at 161. However, the Court s holding in Issa was that the appellant s timely filed motion for new trial preserved the issue for appeal. Id. Haynes did not file a motion for a new trial and did not preserve her issues for appeal. We overrule the issues.

In issue (2), Haynes argues that her Sixth Amendment rights were violated because she was not confronted with the second or third count before the trial court entered pleas on her behalf. While it is true that the trial judge did not re-read those counts in this case, Haynes had already been read the counts in another case involving the same allegations, had received written motions to revoke which included the counts, had entered pleas on the counts in the other cause, and testified in the hearing on the counts. Haynes fails to state any harm resulting from not having the counts re-read to her. We overrule this issue.

Findings

Haynes complains that the trial court abused its discretion by failing to make sufficient findings stating its reasons for revocation, failing to make a finding that she intended not to pay assessments, and failing to make a finding on theft.

The trial court made findings of fact by entering a written judgment stating its reasons for revoking probation. The judgment specifically states that the trial court found the allegations in the motion to revoke to be true. The trial court s reasons for revoking the probation appear plainly on the record.

Haynes specifically complains that there was no finding that her failure to make restitution payments was intentional. When the State alleges that a defendant failed to satisfy the financial conditions of her community supervision, the defendant may raise an affirmative defense of inability to pay. Tex. Code Crim. Proc. Ann. art. 42.12, 21(c) (Vernon 2003); Stanfield v. State, 718 S.W.2d 734, 737 (Tex. Crim. App. 1986). The defendant has the burden of producing evidence and the ultimate burden of persuasion on the issue of inability to pay. Stanfield, 718 S.W.2d at 737. The State still has the burden to prove the failure to pay was intentional. Id. at 738. However, one who has the ability to pay that which she is required to pay but does not leaves the factfinder with a strong inference that her failure to pay is intentional. Id. Haynes never raised an affirmative defense of inability to pay. The trial court could therefore have inferred her failure to pay was intentional because she had the ability to pay, but did not pay. We cannot say the trial court abused its discretion.

Haynes also complains that the trial court abused its discretion by failing to make a finding sufficient to support theft. The trial court expressly stated in the judgment revoking community supervision that it found both counts alleging theft to be true. The State presented the testimony of Green and Herring, each of whom testified that items of property recovered in Haynes s home had been stolen from their respective homes. Green testified that her home had been burglarized the day after Haynes had been at her home and had asked Green repeatedly what time she would be at work the following day. Herring testified that after her house had been burglarized she went to Haynes s apartment and found Haynes sitting outside the apartment wearing Herring s clothes, engagement ring, and shoes. Herring identified her checkbook among the items found in Haynes s home, and testified that checks had been written out not in Herring s handwriting to a Shonona Sweet. Haynes, in her statement to the police and in her testimony at the hearing, claimed that she and her friend Shanona Sweet had purchased the property from an unknown person for $30. The evidence is sufficient to support the trial court s finding that Haynes unlawfully appropriated personal property owned by each victim with intent to deprive the victim of the property.

We overrule these issues.

Impartiality

Haynes contends that the trial judge failed to remain impartial throughout the revocation proceeding in violation of Haynes s Fourteenth Amendment due process rights. Due process requires a neutral and detached judicial officer. Jaenicke v. State, 109 S.W.3d 793, 796 (Tex. App. Houston [1st Dist.] 2003, pet. ref d). In the absence of a clear showing to the contrary, a reviewing court will presume that the trial court was neutral and detached. Id. Haynes argues that the trial judge evidenced his decision at the outset of the hearing, but there is nothing in the record to support this contention. Because Haynes has failed to show a lack of impartiality, we overrule the issue.

Credit for Time Served

Haynes claims that she is entitled to two days credit to her sentence for each day she served in county jail. Haynes does not argue that she has not received credit for the days she has served. Rather, she contends that article 42.12 section 15 and article 42.032 of the Texas Code of Criminal Procedure violate the equal protection clause of the Fourteenth Amendment of the United States Constitution, because those provisions do not allow her to have good conduct time earned in county jail credited to her sentence. The record is insufficient for us to review this issue. There is little record of the facts respecting Haynes s incarceration prior to or subsequent to the hearing. We therefore cannot determine the appropriate time credits or whether Haynes has been denied such credits.

We overrule this issue.

Conclusion

Having overruled all of Haynes s issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed October 13, 2004

Do not publish

[CR25]

[1] The Court heard the motion to revoke at the same time as a motion to revoke in another case that had the same allegations. Haynes s counsel re-tendered Haynes s testimony from the other case in the case at issue here.