Ramon Guerrero v. State ( 2018 )

Affirmed as Modified and Opinion filed July 19, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00368-CR
RAMON GUERRERO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1391825
OPINION
In two issues, appellant Ramon Guerrero challenges the trial court’s revocation
of his deferred adjudication community supervision. The State contends that appellant
waived his right to appeal and thus we lack jurisdiction. Concluding we have
jurisdiction over this appeal but appellant failed to challenge all findings in support of
the revocation, we affirm, but we modify the trial court’s judgment adjudicating guilt
to delete the special finding by the trial court regarding appellant’s right to appeal.
Appellant was charged with aggravated robbery with a deadly weapon, a first
degree felony.1 Pursuant to a plea agreement, the State moved to reduce the charge to
theft of person, a state jail felony, and asked the trial court to defer a finding of guilt
and place appellant on community supervision for a period of four years. 2 As part of
the plea agreement, appellant signed a waiver of appeal, which states that appellant
“waive[d] any right of appeal.” Appellant also signed a document entitled “Advice of
Defendant’s Right to Appeal,” which states: “If you pleaded guilty . . . and accepted
the punishment recommended by the prosecutor . . . you cannot appeal your
conviction unless the Court gives you permission. If you waived or gave up your right
to appeal, you cannot appeal your conviction” (emphasis in original). Appellant
pleaded guilty to theft, and the trial court placed appellant on deferred adjudication
community supervision for four years. The trial court signed a certification of
appellant’s right of appeal, stating the case “is a plea-bargain case, and the defendant
has NO right of appeal.”
Sixteen months after appellant pleaded guilty, the state filed a motion to
adjudicate his guilt and revoke his community supervision. The State alleged in the
motion to adjudicate that appellant violated numerous conditions of his community
supervision. At the adjudication hearing, appellant pleaded not true to the alleged
violations. The trial court revoked the community supervision and proceeded to final
adjudication of guilt. The trial court found that appellant violated multiple terms and
conditions of his community supervision.
Finding appellant guilty, the trial court assessed punishment at 20 months in state
jail. In its judgment adjudicating guilt, the trial court included the following “special
finding”: “Appeal waived. No permission to appeal granted.” The trial court signed a
certification of defendant’s right of appeal, in which the trial court certified the case “is
1
See Tex. Penal Code § 29.03.
2
See Tex. Penal Code § 31.03(e)(4)(B).
2
not a plea-bargain case, and the defendant has the right of appeal.”
I. No Waiver of Right to Appeal Adjudication of Guilt and Sentencing
As an initial matter, we address the State’s contention that appellant waived his
right to appeal and thus we lack jurisdiction over the appeal. Appellant argues that we
have jurisdiction because the trial court certified his right to appeal the trial court’s
adjudication of guilt and sentencing. The State argues that appellant waived his right
to appeal pursuant to a plea bargain agreement as reflected in the judgment adjudicating
guilt and the trial court’s certification is defective.
In a case in which the defendant enters into a plea bargain for deferred
adjudication community supervision, the plea bargain is complete at the time the
defendant enters his plea of guilty in exchange for deferred adjudication community
supervision. Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006).
Thus, generally, a defendant’s right to appeal is restricted only when the defendant
appeals his placement on deferred adjudication community supervision pursuant to the
original plea. Id. (citing Tex. R. App. P. 25.2(a)(2)).3
Appellant pleaded guilty and waived his right to appeal at the time he entered
the plea bargain agreement with the State, and the State agreed to recommend the
reduction of the offense from a first-degree felony to a state jail felony and four years
of deferred adjudication. The trial court accepted the plea agreement and deferred
3
Texas Rule of Appellate Procedure 25.2(a)(2) states:
A defendant in a criminal case has the right of appeal under Code of Criminal
Procedure article 44.02 and these rules. The trial court shall enter a certification of the
defendant’s right of appeal each time it enters a judgment of guilt or other appealable
order. In a plea bargain case—that is, a case in which a defendant’s plea was guilty or
nolo contendere and the punishment did not exceed the punishment recommended by
the prosecutor and agreed to by the defendant—a defendant may appeal only: (A)
those matters that were raised by written motion filed and ruled on before trial, or (B)
after getting the trial court’s permission to appeal.
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adjudication of the charged offense. The trial court certified at that time that this was a
plea bargain case and appellant did not have the right to appeal.
After the adjudication hearing, the trial court found appellant violated multiple
conditions of community supervision and then sentenced appellant to 20 months’
confinement. The trial court subsequently certified appellant’s right to appeal.
The State argues the trial court’s certification after the adjudication hearing and
sentencing stating that appellant has a right to appeal is defective. In determining
whether an appellant in a criminal case has the right to appeal, we examine the trial
court’s certification for defectiveness, defined as a certification that is “correct in form
but which, when compared to the record before the court, proves to be inaccurate.”
Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005). If the certification
appears to be defective, we must obtain a correct certification. Id. at 614–15.
In this case, the trial court’s certification after the adjudication hearing and
sentencing states that this is not a plea bargain case and appellant has the right to appeal.
The trial court was correct. Albeit limited in scope, appellant had the right to appeal
the revocation of his community supervision. See Tex. Code Crim. Proc. art.
42A.108(a)-(b) (“The determination to proceed with an adjudication of guilt on the
original charge [on violation of a condition of deferred adjudication community
supervision] is reviewable in the same manner as a revocation hearing . . . in a case in
which the adjudication of guilt was not deferred.”); Tex. Crim. Proc. Code art.
42A.755(e) (“When the defendant is notified that the defendant’s community
supervision is revoked for a violation of the conditions of community supervision and
the defendant is called on to serve a sentence in a jail or in the Texas Department of
Criminal Justice, the defendant may appeal the revocation.”). When a plea bargain does
not relate to the subsequent adjudication hearing, but only to the exchange of a guilty
plea on the original offense for deferred adjudication, the trial court is required to
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“check the box on the certification form [after the adjudication hearing] indicating that
the case ‘is not a plea-bargain case, and the defendant has the right of appeal.’”
Hargesheimer, 182 S.W.3d at 913; see also Galindo v. State, No. 03-17-00560-CR,
2018 WL 829191, at *1 (Tex. App.—Austin Feb. 8, 2018, no pet.) (mem. op., not
designated for publication).
The State argues, however, that appellant waived his right to appeal the trial
court’s adjudication of guilt and sentencing, which the State contends a defendant can
do in exchange for consideration by the State for that waiver.4 See Ex parte Broadway,
301 S.W.3d 694, 698-99 (Tex. Crim. App. 2009). But the record does not show that
appellant waived his right to appeal the adjudication of guilt or sentencing. The record
shows only that appellant agreed to waive his right to appeal “should the court accept
the foregoing plea bargain agreement.” The waiver, signed well before the adjudication
hearing, does not include language indicating that appellant agreed to waive his right
to appeal a later adjudication of guilt or sentencing.5 Cf. Gibson v. State, No. 14-17-
00797-CR, 2017 WL 4797717, at *1 (Tex. App.—Houston [14th Dist.] Oct. 24, 2017,
no pet.) (mem. op., not designated for publication) (holding defendant’s waiver of
appeal signed during the adjudication proceeding as part of her agreement with the
State to plead true to allegations in motion to adjudicate was binding); Jackson v. State,
168 S.W.3d 239, 241, 243 (Tex. App.—Fort Worth 2005, no pet.) (holding the waiver
document that defendant signed the day of his adjudication hearing and ten years after
his conviction and sentencing validly waived his right to appeal the trial court’s
judgment adjudicating guilt). Because there is no evidence in this record that appellant
4
The State argues that its agreement to reduce the felony level of the offense was in
consideration for appellant’s agreement to waive his right to appeal after adjudication of guilt and
sentencing.
5
In the waiver, appellant stated that he “waive[d] any right of appeal which [he] may have.”
We conclude that under Hargesheimer, this language was not sufficient for appellant to waive his
right to appeal his final adjudication hearing and sentencing. 182 S.W.3d at 912-13.
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agreed to waive his right to appeal adjudication, we apply the general rule articulated
by the Court of Criminal Appeals: a defendant’s right to appeal adjudication is
restricted only when made pursuant to the original plea. See Hargesheimer, 182 S.W.3d
at 913. Thus, we have jurisdiction over this appeal. See id.
Appellant also argues that the trial court’s certification of appellant’s right to
appeal conflicts with the special finding in the judgment adjudicating guilt that
appellant waived his right to appeal and the trial court did not grant permission to
appeal. We agree. We modify the court’s judgment to delete the special finding. See
Ratcliff v. State, No. 14-16-00068-CR, 2017 WL 3045587, at *4 (Tex. App.—Houston
[14th Dist.] July 18, 2017, no pet.) (mem. op., not designated for publication) (citing
Tex. R. App. P. 43.2(b) (providing court of appeals may modify the trial court’s
judgment and affirm as modified)); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim.
App. 1993) (holding court of appeals may reform judgment to correct clerical error)).
II. Failure to Challenge All Grounds for Revocation Found by Trial
Court
In its judgment adjudicating guilt, the trial court set out multiple violations by
appellant of the terms and conditions of his community service. 6 At the adjudication
hearing, the State introduced evidence that a urine sample submitted by appellant tested
positive for marijuana. Appellant contends that the trial court erred in overruling his
objection to the admissibility of the evidence regarding the process by which
appellant’s urine sample was analyzed. Accordingly, appellant has challenged the trial
court’s finding that appellant violated a condition of his community supervision by
6
At the adjudication hearing, the trial court orally found that appellant violated his community
supervision because he used, possessed, or consumed a “controlled substance, dangerous drug,
marijuana, alcohol or prescription drug not specifically prescribed . . . by lawful prescription” and
failed to submit to random drug and alcohol testing. In its judgment adjudicating guilt, the trial court
found several more violations.
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using marijuana. Appellant has not challenged the trial court’s other findings.
We review a trial court’s decision to revoke community supervision for an abuse
of discretion. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013);
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The trial court has
discretion to revoke community supervision when a preponderance of the evidence
supports at least one of the State’s alleged violations of the conditions of community
supervision. Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012). This
standard is met when the greater weight of the credible evidence creates a reasonable
belief that the defendant has violated a condition of his community supervision. See
Rickels, 202 S.W.3d at 764. We view the evidence in the light most favorable to the
trial court’s order. Moore v. State, 11 S.W.3d 495, 498 (Tex. App.—Houston [14th
Dist.] 2000, no pet.). The trial court is the sole trier of fact and determines the credibility
of witnesses and the weight to be given to their testimony in revocation hearings. Id.
The trial court abuses its discretion in issuing a revocation order when the State fails to
meet its burden of proving by a preponderance of the evidence that appellant violated
a condition. Cardona v. State, 665 S.W.2d 492, 493–94 (Tex. Crim. App. 1984).
Proof of a single violation is sufficient to support revocation of community
supervision. Trevino v. State, 218 S.W.3d 234, 240 (Tex. App.—Houston [14th Dist.]
2007, no pet.); see also Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012)
(“[P]roof of a single violation will support revocation.”). To prevail in his appeal
asserting the trial court abused its discretion, the appellant thus was required to
challenge all of the findings that support the revocation order. See Moore v. State, 605
S.W.2d 924, 926 (Tex. Crim. App. 1980) (“We need not address appellant’s other
contentions since one sufficient ground for revocation will support the court’s order to
revoke probation.”); Gobell v. State, 528 S.W.2d 223, 224 (Tex. Crim. App. 1975)
(“Since the other finding upon which probation was revoked is unchallenged,
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appellant’s contention, even if correct, would not show an abuse of discretion.”);
Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
Because appellant failed to challenge all findings in support of the trial court’s
revocation, we need not address appellant’s argument challenging the finding that
appellant violated a condition of his community supervision by using marijuana. See
Joseph, 3 S.W.3d at 640; Henegar v. State, No. 14-15-00529-CR, 2016 WL 5799094,
at *2 (Tex. App.—Houston [14th Dist.] Oct. 4, 2016, no pet.) (mem. op., not designated
for publication).
Conclusion
Concluding that we have jurisdiction over this appeal but appellant failed to
challenge all grounds for revocation found by the trial court, we affirm the judgment
of the trial court revoking appellant’s community supervision and adjudicating
appellant’s guilt, but we modify the trial court’s judgment adjudicating guilt to delete
the special finding by the trial court that appellant waived his right to appeal and the
trial court did not grant permission to appeal.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Boyce, Jamison, and Brown.
Publish — TEX. R. APP. P. 47.2(b).
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