David Andrew Simon v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00045-CR
DAVID ANDREW SIMON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR11918
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MEMORANDUM OPINION 1
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In two points, David Andrew Simon challenges the trial court’s judgment
adjudicating him guilty of possession of more than four ounces of marijuana and
sentencing him to twenty months’ confinement in a state jail facility. We affirm.
In his first point, appellant contends that his sentence is grossly
disproportionate to the violations of his deferred adjudication community
1
See Tex. R. App. P. 47.4.
supervision: (1) committing the class C misdemeanor of failing to notify the
owner of property after being involved in an accident that caused damage to that
owner’s fixture or landscaping 2 and (2) failing to abstain from alcohol use. See
Tex. Transp. Code Ann. § 550.025 (West Supp. 2014). But appellant did not
object to his sentence when it was imposed, nor did he file a motion for new trial
or other post-trial motion objecting to it. Thus, appellant failed to preserve this
complaint for appeal. See, e.g., Pollock v. State, 405 S.W.3d 396, 405–06 (Tex.
App.––Fort Worth 2013, no pet.); see also Burt v. State, 396 S.W.3d 574, 577
(Tex. Crim. App. 2013) (“A sentencing issue may be preserved by objecting at
the punishment hearing, or when the sentence is pronounced.”). We overrule his
first point.
In his second point, appellant challenges the sufficiency of the evidence to
prove that he violated a condition of his community supervision “in any significant
way.” The thrust of appellant’s argument is that the violations of his community
supervision were so minor, and emanated from mere lapses of judgment rather
than intentional wrongdoing, that it was unfair to revoke his community
supervision and sentence him to jail time. But appellant pled true to the
allegations in the State’s petition to adjudicate. A plea of true to any one
allegation, standing alone, is sufficient to support the revocation of community
supervision and adjudicate guilt. Tapia v. State, 462 S.W.3d 29, 31 n.2 (Tex.
2
Appellant hit a tree.
2
Crim. App. 2015); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel
Op.] 1980).
Appellant contends in his brief that he did not actually plead true to the
allegations in the State’s petition to adjudicate because (1) he did not initial all of
the options in the “Waiver of Hearing Upon the State’s Motion to Revoke
Probation or to Proceed to Adjudication and Plea of True” that he signed on the
day of trial and instead wrote in “N/A” for some of them and (2) even though he
answered yes when the trial judge asked him if he understood the State’s
allegations and was pleading true to all of them, he contends that he, “his
counsel[,] and the judge apparently understood that [he] was contesting all of the
allegations . . . because the hearing proceeded as a contested, evidentiary
hearing.” [Emphasis added.]
In the waiver he signed, appellant initialed the plea of true section as
follows: “I have been duly served with a copy of the State’s Motion to Revoke
Probation or to Proceed to Adjudication in this cause, fully understand the
allegations therein, and after duly considering the same, do hereby stipulate that
all of the allegations contained therein are true except: [the following is
handwritten] NONE.” Additionally, the trial court’s docket sheet indicates that
appellant pled true. That the trial court proceeded to hear evidence does not
contradict the other indications that appellant pled true to the State’s allegations.
When, as in this case, a defendant enters a plea of true at an adjudication
hearing, the proceeding becomes a unitary proceeding to determine the
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remaining issue of punishment. Tapia, 462 S.W.3d at 31 n.2; Carroll v. State,
975 S.W.2d 630, 631–32 (Tex. Crim. App. 1998). Thus, we conclude and hold
that the record shows that appellant pled true to the allegations in the State’s
petition.
Moreover, appellant’s community supervision officer, appellant’s mother,
and appellant all testified that appellant had drunk alcohol on two occasions with
his parents. 3 The trial court may revoke deferred adjudication community
supervision when a preponderance of the evidence supports only one of the
State’s allegations so long as the defendant was afforded due process. Leonard
v. State, 385 S.W.3d 570, 576–77 (Tex. Crim. App. 2012) (op. on reh’g); Nurridin
v. State, 154 S.W.3d 920, 924 (Tex. App.––Dallas 2005, no pet.) (“Courts may
revoke community supervision for a violation of any condition, including violations
of any single ‘technical’ condition.”); see also Tapia, 462 S.W.3d at 41–42 (listing
minimum requirements of due process that must be observed in community
supervision revocation hearings).
Accordingly, we conclude and hold that the trial court did not abuse its
discretion by revoking appellant’s deferred adjudication community supervision.
We overrule appellant’s second point.
3
His community supervision officer also testified that appellant tested
positive for alcohol use the morning after he was arrested for the accident that
precipitated the transportation code offense alleged by the State.
4
Having overruled both of appellant’s points, we affirm the trial court’s
judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 29, 2015
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