Charles David Connolly v. State ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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ON REMAND

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NO. 03-97-00182-CR

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Charles David Connolly, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 39,512, HONORABLE JOE CARROLL, JUDGE PRESIDING

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The district court found that Charles David Connolly violated the terms of his deferred adjudication community supervision, adjudged him guilty of theft, and sentenced him to imprisonment for two years. On original submission, this Court sustained Connolly's first two points of error and reversed the adjudication of guilt because the State failed to present sufficient evidence of due diligence in apprehending Connolly after expiration of his supervisory term. Connolly v. State, 955 S.W.2d 411, 414 (Tex. App.--Austin 1997). The court of criminal appeals reversed our judgment on the State's petition for discretionary review. Connolly v. State, No. 1637-97 (Tex. Crim. App. Jan. 13, 1999). The court disavowed its earlier opinions on which we had relied and concluded that the due diligence points should have been dismissed without reaching their merits. Id., slip op. at 7. The appeal was remanded to us to address the third and final point of error. Id.

In his third point of error, Connolly contends the district court sentenced him without a finding of guilt. At the conclusion of the revocation and adjudication hearing, the court announced its finding that Connolly violated the conditions of his supervision, revoked supervision, and assessed punishment. The court did not orally state that it found Connolly guilty. The written judgment of conviction states, however, "It is therefore Considered, Ordered, Adjudged and Decreed by the Judge that the said defendant is guilty of the offense . . . ."

An analogous case was presented to the court of criminal appeals in Villela v. State, 564 S.W.2d 750 (Tex. Crim. App. 1978). In that case, the defendant waived trial by jury and pleaded guilty. After accepting the plea and hearing the State's evidence, the trial court ordered the preparation of a presentence report. At a subsequent hearing, the court considered further evidence and assessed punishment. At neither the guilty plea nor the punishment hearing did the court orally adjudicate guilt, but the written judgment did recite such a finding. The court of criminal appeals held that the trial court's actions necessarily implied a finding of guilt and supported the written judgment. Id. at 751.

In this cause, Connolly pleaded guilty and judicially confessed to the alleged theft offense. After accepting the plea and considering the confession, the district court found that the evidence substantiated Connolly's guilt. The court then concluded that the best interests of society and Connolly would be served by deferring adjudication of guilt and placing Connolly on community supervision. Later, after finding that Connolly violated the conditions of his supervision, the court revoked supervision and assessed punishment. The court's actions necessarily imply a finding of guilt and support the recital in the judgment. Point of error three is overruled.

The judgment of conviction is affirmed.

Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Powers^*

Affirmed on Remand

Filed: March 18, 1999

Do Not Publish

  ^* Before John E. Powers, Senior Justice, (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

vid Connolly, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 39,512, HONORABLE JOE CARROLL, JUDGE PRESIDING

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The district court found that Charles David Connolly violated the terms of his deferred adjudication community supervision, adjudged him guilty of theft, and sentenced him to imprisonment for two years. On original submission, this Court sustained Connolly's first two points of error and reversed the adjudication of guilt because the State failed to present sufficient evidence of due diligence in apprehending Connolly after expiration of his supervisory term. Connolly v. State, 955 S.W.2d 411, 414 (Tex. App.--Austin 1997). The court of criminal appeals reversed our judgment on the State's petition for discretionary review. Connolly v. State, No. 1637-97 (Tex. Crim. App. Jan. 13, 1999). The court disavowed its earlier opinions on which we had relied and concluded that the due diligence points should have been dismissed without reaching their merits. Id., slip op. at 7. The appeal was remanded to us to address the third and final point of error. Id.

In his third point of error, Connolly contends the district court sentenced him without a finding of guilt. At the conclusion of the revocation and adjudication hearing, the court announced its finding that Connolly violated the conditions of his supervision, revoked supervision, and assessed punishment. The court did not orally state that it found Connolly guilty. The written judgment of conviction states, however, "It is therefore Considered, Ordered, Adjudged and Decreed by the Judge that the said defendant is guilty of the offense . . . ."

An analogous case was presented to the court of criminal appeals in Villela v. State, 564 S.W.2d 750 (Tex. Crim. App. 1978). In that case, the defendant waived trial by jury and pleaded guilty. After accepting the plea and hearing the State's evidence, the trial court ordered the preparation of a presentence report. At a subsequent hearing, the court considered further evidence and assessed punishment. At neither the guilty plea nor the punishment hearing did the court orally adjudicate guilt, but the written judgment did recite such a finding. The court of criminal appeals held that the trial court's actions necessarily implied a finding of guilt and supported the written judgment. Id. at 751.

In this cause, Connolly pleaded guilty and judicially confessed to the alleged theft offense. After accepting the plea and considering the confession, the district court found that the evidence substantiated Connolly's guilt. The court then concluded that the best interests of society and Connolly would be served by deferring adjudication of guilt and placing Connolly on community supervision. Later, after finding that Connolly violated the conditions of his supervision, the court revoked supervision and assessed punishment. The court's actions necessarily imply a finding of guilt and support the recital in the judgment. Point of error three is overruled.

The judgment of conviction is affirmed.

Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Powers^*

Affirmed on Remand

Filed: March 18, 1999

Do Not Publish

  ^* Before John E. Powers, Senior Justice, (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

vid Connolly, Appellant

v.

The State of Texas, Appellee

---

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 39,512, HONORABLE JOE CARROLL, JUDGE PRESIDING

---

The district court found that Charles David Connolly violated the terms of his deferred adjudication community supervision, adjudged him guilty of theft, and sentenced him to imprisonment for two years. On original submission, this Court sustained Connolly's first two points of error and reversed the adjudication of guilt because the State failed to present sufficient evidence of due diligence in apprehending Connolly after expiration of his supervisory term. Connolly v. State, 955 S.W.2d 411, 414 (Tex. App.--Austin 1997). The court of criminal appeals reversed our judgment on the State's petition for discretionary review. Connolly v. State, No. 1637-97 (Tex. Crim. App. Jan. 13, 1999). The court disavowed its earlier opinions on which we had relied and concluded that the due diligence points should have been dismissed without reaching their merits. Id., slip op. at 7. The appeal was remanded to us to address the third and final point of error. Id.

In his third point of error, Connolly contends the district court sentenced him without a finding of guilt. At the conclusion of the revocation and adjudication hearing, the court announced its finding that Connolly violated the conditions of his supervision, revoked supervision, and assessed punishment. The court did not orally state that it found Connolly guilty. The written judgment of conviction states, however, "It is therefore Considered, Ordered, Adjudged and Decreed by the Judge that the said defendant is guilty of the offense . . . ."

An analogous case was presented to the court of criminal appeals in Villela v. State, 564 S.W.2d 750 (Tex. Crim. App. 1978). In that case, the defendant waived trial by jury and pleaded guilty. After accepting the plea and hearing the State's evidence, the trial court ordered the preparation of a presentence report. At a subsequent hearing, the court considered further evidence and assessed punishment. At neither the guilty plea nor the punishment hearing did the court orally adjudicate guilt, but the written judgment did recite such a finding. The court of criminal appeals held that the trial court's actions necessarily implied a finding of guilt and supported the written judgment. Id. at 751.

In this cause, Connolly pleaded guilty and judicially confessed to the alleged theft offense. After accepting the plea and considering the confession, the district court found that the evidence substantiated Connolly's guilt. The court then concluded that the best interests of society and Connolly would be served by deferring adjudication of guilt and placing Connolly on community supervision. Later, after finding that Connolly violated the conditions of his supervision, the court revoked supervision and assessed punishment. The court's actions necessarily imply a finding of guilt and support the recital in the judgment. Point of error three is overruled.

The judgment of conviction is affirmed.

Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Powers^*

Affirmed on Remand

Filed: March 18, 1999

Do Not Publish