Maddox v. State, No. 2-08-020-CR (Tex. App. 1/29/2009)
| Decision Date | 29 January 2009 |
| Docket Number | No. 2-08-020-CR.,2-08-020-CR. |
| Parties | ERIC MADDOX, Appellant, v. THE STATE OF TEXAS, State. |
| Court | Texas Court of Appeals |
Appeal from Criminal District Court No. 1 of Tarrant County.
Panel: CAYCE, C.J.; LIVINGSTON, and GARDNER, JJ.
Appellant Eric Maddox appeals his conviction for possessing while intending to deliver cocaine. See Tex. Health & Safety Code Ann. § 481.102(3)(D), 481.112(a) (Vernon 2003 & Supp. 2008). In four issues, he contends that the trial court's judgment is defective and its findings are unsupportable, that the trial court erred by admitting hearsay evidence, and that he was denied effective assistance of counsel. We reform, and as reformed, affirm the trial court's judgment.
In January 2001, a Tarrant County grand jury indicted appellant of possessing while intending to deliver between four and two hundred grams of cocaine (a first degree felony). See id. § 481.112(d). In September of that year, appellant pled guilty. In accordance with his plea, the trial court placed appellant on deferred adjudication community supervision for ten years.
In November 2007, the State filed a petition to proceed to the adjudication of appellant's cocaine offense. The next month, the State filed its first amended petition, alleging in five paragraphs that appellant violated the terms of his community supervision by possessing methamphetamine, testing positive for THC2 and cocaine, and failing to report to his community supervision office in person and by mail on several monthly occasions. On January 10, 2008, the State filed a second amended petition, alleging these same facts and adding another assertion relating to marijuana possession.
On the day the State filed its second amended petition, the trial court conducted an evidentiary hearing on whether to adjudicate appellant guilty; however, the State proceeded on its first amended petition. At the hearing, the State called Rodney Knotts, a court officer with the Tarrant County Adult Probation Department. Based on records he brought with him,3 Officer Knotts testified that the department informed appellant of the conditions of his community supervision, that appellant violated the conditions as alleged in the State's petition, and that appellant had been "sanctioned" through a brief stay in jail for these violations. The State then called a Plano police officer who testified that he discovered marijuana along with a substantial amount of pills in a locked glove box within appellant's vehicle. Finally, the State called a laboratory technician who stated that the pills found in appellant's vehicle tested positive for methamphetamine and methylenedioxymethamphetamine (MDMA), which are controlled substances.
The trial court found that four of the five allegations contained in the State's first amended petition were true. After appellant called two witnesses (his wife and his mother) on the issue of punishment and counsel presented closing arguments, the trial court formally found appellant guilty and sentenced him to twenty years' confinement. Later that day, the trial court entered a judgment reflecting its decisions. The judgment referred to allegations contained in the State's second amended petition as the "grounds for revocation." Appellant filed notice of this appeal.
Our review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Allbright v. State, 13 S.W.3d 817, 818 (Tex. App.-Fort Worth 2000, pet. ref'd); see Oveal v. State, No. 14-07-00755-CR, 2008 WL 5085405, at *2 (Tex. App.-Houston [14th Dist.] Nov. 25, 2008, no pet.) (mem. op., not designated for publication) (applying the abuse of discretion standard to the granting of a motion to adjudicate). An abuse of discretion occurs when the trial judge's decision is so wrong that it falls outside the zone within which reasonable persons might disagree. Allbright, 13 S.W.3d at 818.
In his first issue, appellant contends that the judgment adjudicating his guilt is defective because it states that it is based on the State's second amended petition, while the State actually litigated its first amended petition. Appellant asserts that the result of this error is that he was adjudicated on allegations of which "no evidence was presented and no argument was heard." The State concedes and we hold that the judgment adjudicating appellant's guilt errs by stating that the trial court adjudicated appellant under the State's second amended petition. However, the State contends that the error may be corrected by this court's modification of the trial court's judgment. We agree.
Appellate courts have the authority to correct and modify a trial court's judgment in order to make the record speak the truth. See Tex. R. App. P. 43.2(b); Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986); Nelson v. State, 149 S.W.3d 206, 213 (Tex. App.-Fort Worth 2004, no pet.) ( that an appellate court may correct and reform a judgment "to make the judgment congruent with the record"); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd) (en banc) (). Such authority is not dependent upon a party's request or objection. See Tyler v. State, 137 S.W.3d 261, 267-68 (Tex. App.-Houston [1st Dist.] 2004, no pet.); Asberry, 813 S.W.2d at 529-30.
Appellant has cited no authority holding that the incorrect recitation contained in the judgment adjudicating his guilt is reversible error or cannot be corrected as indicated by the authority cited above. Instead, he admits that the trial court heard evidence and made its determinations based on the State's first amended petition; the record demonstrates the same. For instance, at the hearing on the petition, appellant's counsel conferred with appellant, agreed to litigate the first amended petition, and announced ready. The trial court then read the allegations specifically contained in the first amended petition to appellant. Appellant pled "true" to testing positive for THC, and he pled "not true" to the remaining allegations. Closing arguments from appellant and the State concerned the allegations contained in the five paragraphs of the first amended petition.
Because the "truth" of the record is that the parties litigated the first amended petition and that the court considered that petition to find violations of paragraphs one, two, four, and five, we sustain appellant's first issue to the extent that we modify the judgment adjudicating guilt to reflect the proper grounds for revocation as stated in those paragraphs of that petition.4 See Tex.R. App. P. 43.2(b); Banks, 708 S.W.2d at 462.
In his second and fourth issues, appellant asserts that the evidence presented at trial was insufficient to prove a violation of three paragraphs of the State's first amended petition.5
Sufficient evidence of one violation is adequate to affirm a trial court's order revoking community supervision. See Watts v. State, 645 S.W.2d 461, 463 (Tex. Crim. App. 1983) (); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980). In other words, to overturn a revocation order, a defendant must successfully challenge each finding on which the revocation is based. Harris v. State, 160 S.W.3d 621, 626 (Tex. App.-Waco 2005, pet. struck); Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.-Houston [14th Dist.] 1999, no pet.).
Also, a "true" plea to any one of the alleged violations contained in a motion to proceed to adjudication is sufficient to support the trial court's order revoking community supervision. See Atchison v. State, 124 S.W.3d 755, 758 n.4 (Tex. App.-Austin 2003, pet. ref'd); Moore v. State, 11 S.W.3d 495, 498 n.1 (Tex. App.-Houston [14th Dist.] 2000, no pet.); Wilkerson v. State, 731 S.W.2d 752, 753 (Tex. App.-Fort Worth 1987, no pet.). Once a "true" plea has been entered, a defendant may not challenge the sufficiency of the evidence to support the subsequent revocation. See Moore, 11 S.W.3d at 498 n.1 (citing Rincon v. State, 615 S.W.2d 746, 747 (Tex. Crim. App. [Panel Op.] 1981)).
Here, appellant pled "true" to testing positive for THC.6 The trial court found that allegation to be true, and appellant has not challenged the trial court's finding in this regard. Therefore, the trial court did not abuse its discretion by adjudicating appellant guilty, and appellant's issues related to findings made and evidence presented on the other paragraphs of the State's petition are rendered immaterial. See Watts, 645 S.W.2d at 463; Moore, 11 S.W.3d at 498 n.1. Accordingly, we overrule appellant's second and fourth issues.
In his third issue, appellant argues that his "true" plea was involuntary because he was denied effective assistance of counsel.
To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex....
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