Pierce v. State
| Decision Date | 10 June 2003 |
| Docket Number | No. 06-02-00009-CR.,06-02-00009-CR. |
| Parties | Janis Wells PIERCE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Clement Dunn, Longview, for appellant.
F. Alfonso Charles, Assistant District Attorney, William M. Jennings, Gregg County District Attorney, Longview, for appellee.
Before MORRISS, C.J., ROSS and CARTER, JJ.
Janis Wells Pierce appeals the judgment of the 124th Judicial District Court of Gregg County revoking her probation. The trial court sentenced her to ten years' confinement. She contends that the trial court erred in denying her motion for continuance and that the evidence is insufficient to support the trial court's order of revocation.
On August 11, 1993, Pierce pled guilty to a charge of theft by worthless check. The trial court assessed punishment at ten years' imprisonment, probated for five years. In 1994, the State applied to revoke probation, alleging Pierce had failed to report to her probation officer and to make payments for supervision, restitution, and court costs. At the revocation hearing, she entered a plea of true to the allegations, and the trial court allowed her to remain on probation but extended the probation to the full ten years.
On July 31, 2001, the State applied again to revoke Pierce's probation. The State abandoned the first allegation in its application to revoke. The second allegation, the one on which the trial court entered its judgment revoking probation, is as follows:
That the defendant, JANIE WELLS PIERCE, has violated Condition (1) of her probation1 in that on or about the 11th day of December 1998, in Gregg County, Texas, the defendant, JANIE WELLS PIERCE, did then and there, with the intent to defraud and harm another, make a writing so that it purported to be the act of A.K. Bobbitt, who did not authorize the act, and said writing was a check of then [sic] tenor following:
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
(Emphasis added.) At the revocation hearing, the State presented evidence that Pierce had entered her name as payee on a check tendered by her employer's client with the payee line left blank, endorsed the check, and cashed it at a local convenience store.
In defense, Pierce asserted that her employer had instructed her to make the check payable to herself and to use the money to buy office supplies. To support this defense, Pierce sought access to the employer's tax documents and office receipts to bolster her credibility and to show the check in question was negotiated according to standard office procedure. Pierce's attorney made an oral motion for continuance in order to gain access to and review these records. The trial court denied this oral motion and revoked probation. Pierce appeals.
When a point of error is properly before this Court, we review a trial court's denial of a motion for continuance for an abuse of discretion. A motion for continuance, however, that is not in writing and not sworn preserves nothing for review. Tex.Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 1989); see O'Neal v. State, 623 S.W.2d 660, 661 (Tex.Crim.App.1981). The record indicates no written, sworn motion for continuance was ever before the trial court. Counsel's declaration: "We're not ready, Your Honor" fails to meet the requirements for a motion for continuance that properly preserves error for appellate review. Therefore, we cannot review the trial court's denial of Pierce's motion for continuance. See Tex.R.App. P. 33.1. We overrule Pierce's first point of error.
Pierce's second point of error challenges the sufficiency of the evidence at the revocation hearing on two separate issues: whether the application's charge of "making" the check was a fatal flaw and whether Pierce was properly identified in the application.2 We review the trial court's decision regarding probation revocation for an abuse of discretion and examine the evidence in a light most favorable to the trial court's order. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App.1981). To revoke probation, the State must prove every element of at least one ground for revocation by a preponderance of the evidence. Tex.Code Crim. Proc. Ann. art. 42.12, § 21 (Vernon Supp.2003); Moore v. State, 11 S.W.3d 495, 498 (Tex.App.-Houston [14th Dist.] 2000, no pet.). The trial court holds very broad discretion over community supervision, its revocation, and its modification. See Tex.Code Crim. Proc. Ann. art. 42.12, § 21. Considering the unique nature of the revocation hearing and the trial court's broad discretion in the proceedings, the general standards for reviewing factual sufficiency do not apply. See Cochran v. State, 78 S.W.3d 20, 27 (); Becker v. State, 33 S.W.3d 64, 66 (Tex.App.-El Paso 2000, no pet.). If the greater weight of credible evidence creates a reasonable belief a defendant has violated a condition of his or her probation, the trial court's order of revocation did not abuse its discretion and must be upheld. Scamardo v. State, 517 S.W.2d 293, 298 (Tex.Crim.App. 1974).
Appellant as "Maker"
Texas courts have traditionally recognized that an application to revoke is held to a less rigorous standard than an indictment or information. An application to revoke probation need not meet the specificity requirements of an indictment or information. Chacon v. State, 558 S.W.2d 874, 876 (Tex.Crim.App.1977); Tamez v. State, 534 S.W.2d 686, 689 (Tex. Crim.App.1976). It is sufficient that the State allege a violation of the law and give the probationer fair notice. Chacon, 558 S.W.2d at 876. A person on community supervision is entitled to a written application to revoke that fully informs him or her of the term of probation he or she is alleged to have breached. The application must clearly set out the basis on which the State seeks revocation so that a probationer and his or her counsel have fair notice. See Leyva v. State, 552 S.W.2d 158, 162 (Tex.Crim.App.1977); Tamez, 534 S.W.2d at 689.
Where, as here, the State alleges a violation of the condition that a probationer refrain from committing an offense against the law, the State need not use the same precise terms as necessary in an indictment allegation. Bradley v. State, 608 S.W.2d 652, 655 (Tex.Crim.App.1980). At a hearing on an application to revoke probation, guilt or innocence is not at issue, and the trial court need not determine the defendant's original criminal culpability, only whether the probationer broke the contract made with the trial court to receive a probated sentence. See Moore, 11 S.W.3d at 499. Revocation is proper if the evidence is sufficient to support the trial court's finding that the probationer committed an offense in violation of the condition of probation that he or she commit no offense against state or federal law. See Chacon, 558 S.W.2d at 876.
Pierce contends the evidence was insufficient to prove she "made" a writing so it purports to be the act of A.K. Bobbitt. Pierce argues Bobbitt completed and signed the check in question, leaving only the payee portion blank. Since Bobbitt intended to leave it blank, Pierce argues, he had performed every act he intended as maker. Further, she urges, Bobbitt left the line blank so Pierce could complete it. Therefore, Pierce claims, her act of signing her name as payee, endorsing the check, and presenting it to the store to get cash did not constitute "making" a writing and was not an unauthorized act with respect to the original maker of the check. Essentially, Pierce claims that she was not the maker of the check, that Bobbitt was, and that none of Pierce's actions changed that fact.
The State alleges Pierce "did then and there, with the intent to defraud and harm another, make a writing so that it purported to be the act of A.K. Bobbitt, who did not authorize the act." (Emphasis added.) The application then incorporates a copy of the check at issue, as we have above, providing copies of both the front and back of the check. A person commits the offense of forgery when he or she "makes,3 alters, completes, executes, or authenticates any writing so that it appears to be the act of another who did not authorize that act." Tex. Pen.Code Ann. § 32.21(a)(1)(A)(i) (Vernon 2003).
A similar question was before the court in Nunez, on which Pierce relies, where the State's indictment alleged that the defendant "did ... alter and make and complete and execute and authenticate a writing so that it purports to be the act of another."4 Nunez v. State, 940 S.W.2d 710, 712 (Tex.App.-El Paso 1996, no pet.). By so alleging, the State undertook by its indictment the higher burden of proving that Nunez performed all five modes of committing forgery. Id. at 713. Evidence at trial showed Nunez was co-payee on an insurance settlement check. Id. at 712. Nunez then forged the endorsement of his client, the other co-payee, and deposited the check in his account and made no disbursement. Id. The State failed to produce evidence that Nunez was the "maker" of the check. Id. at 713. In fact, the evidence clearly showed that the insurance company was the maker of the check. Id. Therefore, the evidence was insufficient to prove the defendant committed the crime as alleged, and the court reversed the forgery conviction. Id. at 713-14.
The State distinguishes Pierce's case from Nunez by pointing out that Nunez was a co-payee on the settlement check and did not fill in the payee portion. Nunez also forged the name of another, while Pierce signed only her name on the endorsement. The State argues that the differences between the cases call for a different conclusion in the instant case. These factual distinctions plainly exist, but they would not result in a different outcome. The most vital distinction between Nunez and the...
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