Germany Roshawn Johnson v. State ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-16-00025-CR
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GERMANY ROSHAWN JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 1A District Court
Tyler County, Texas
Trial Cause No. 11,078
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MEMORANDUM OPINION
In two issues on appeal, appellant Germany Roshawn Johnson complains
that the trial court abused its discretion by revoking his community supervision.
We affirm the trial court’s judgment.
Background
In December 2008, Germany Roshawn Johnson was indicted for possession
of a controlled substance with the intent to deliver, a second degree felony. In
April 2010, Johnson pleaded guilty to possessing a controlled substance with the
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intent to deliver, and the trial court sentenced Johnson to eight years in prison, but
suspended the imposition of the sentence, placed Johnson on community
supervision for eight years, and assessed a fine of $2500. The State later filed a
motion to revoke Johnson’s community supervision, alleging that Johnson had
violated three conditions of his community supervision. Johnson pleaded true and
the trial court sentenced him to five years in prison. However, Johnson filed a
motion for new trial and motion in arrest of judgment, arguing that his pleas of true
were not freely, voluntarily, and intelligently given because he entered the pleas
with the promise that his other cases would be dismissed or run concurrently, but
later learned that he may receive more than five years on the other cases. The trial
court granted Johnson’s motion for new trial and motion in arrest of judgment.
In January 2016, the trial court conducted a second hearing on the State’s
second amended motion to revoke. Johnson filed a motion to quash, complaining
that the State’s motion to revoke failed to provide fair notice as to how he had
violated his probationary conditions by committing new offenses. The State agreed
to waive one of the new offenses because the date of the offense was not correctly
alleged in the motion to revoke. The trial court denied Johnson’s motion to quash.
The trial court proceeded to hear evidence concerning the State’s second amended
motion to revoke.
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During the revocation hearing, Johnson’s probation officer testified
concerning the allegations that Johnson had failed to pay his court costs, despite
having reported that he was working, and had also failed to perform his community
service hours. Officer Jathan Borel of the Woodville Police Department testified
concerning the allegations that Johnson had committed the offense of delivery of a
controlled substance in 2013 and 2014. Regarding the 2013 allegation, Officer
Borel testified that there was a video of the 2013 incident in which a third party
went to Johnson’s house and bought drugs, but Johnson did not appear in the video
and the third party did not testify at trial. Concerning the 2014 allegation, Officer
Borel testified he did not personally observe Johnson delivering drugs, but he had
viewed a video of the alleged offense. While Officer Borel testified that he
recognized Johnson on the video and that Johnson was involved in the drug deal,
the video does not show the actual exchange of drugs. The person to whom
Johnson allegedly delivered drugs did not testify at the hearing, nor was there any
evidence showing that the substance allegedly delivered was a controlled
substance.
After the State rested, Johnson’s counsel asked for an instructed verdict,
arguing that the State failed to prove that Johnson had delivered a controlled
substance. The trial court overruled Johnson’s request. Johnson testified at the
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hearing and denied committing the drug offenses. Johnson also denied that he had
not paid his court costs, and he explained that he had tried to buy out his
community service hours, but the community service department had refused to
take his money. Johnson’s fiancé also testified at the hearing, and she stated that
she viewed both videos that allegedly showed Johnson delivering drugs and she
did not see Johnson in either video. The record shows that the trial judge viewed
the videos in his chambers. The trial court found that Johnson violated all three
conditions of his community supervision, revoked Johnson’s community
supervision, and sentenced Johnson to eight years in prison. Johnson appealed.
Analysis
In issue two, Johnson complains that the evidence was insufficient to
support revocation. Johnson’s complaint is based on the trial court’s finding that
Johnson violated condition one of his community supervision by committing two
new drug offenses. We address issue two first. The State argues that regardless of
any deficiencies in the evidence concerning the drug offenses Johnson allegedly
committed, there is sufficient evidence to support the trial court’s findings.
We review an order revoking probation under an abuse of discretion
standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In
determining the sufficiency of the evidence in probation revocation cases, the
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burden of proof is by a preponderance of the evidence. Cardona v. State, 665
S.W.2d 492, 493 (Tex. Crim. App. 1984). The trial court is the sole judge of the
credibility of the witnesses and the weight to be given their testimony, and we
review the evidence in the light most favorable to the trial court’s ruling. Garrett v.
State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). The
preponderance-of-the-evidence standard is met when the greater weight of the
credible evidence before the trial court supports a reasonable belief that the
defendant has violated a condition of his community supervision. Rickels, 202
S.W.3d at 763-64. When the State fails to meet its burden, the trial court abuses its
discretion by revoking the community supervision. Cardona, 665 S.W.2d at 493-
94.
While Johnson complains that the evidence is insufficient to support
revocation based on the trial court’s finding that Johnson violated his probation by
committing new drug offenses, the trial court’s revocation order was based on
Johnson having violated three conditions of his community supervision. Proof of a
single violation will support revocation. See Garcia v. State, 387 S.W.3d 20, 26
(Tex. Crim. App. 2012). Thus, to successfully obtain reversal of a revocation
order, the appellant must successfully challenge each ground on which the trial
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court relied to support its revocation order. Sterling v. State, 791 S.W.2d 274, 277
(Tex. App.—Corpus Christi 1990, pet. ref’d).
The record shows that the trial court found that Johnson violated all three
conditions of his community supervision order, one of which includes failing to
perform his community service hours. Johnson’s probation officer testified at the
hearing that Johnson was placed on community supervision in April 2010, and was
ordered to perform 120 hours of community service. Although his probation
officer had discussed the community service requirement with Johnson, including
the option of completing the hours on weekends, at the time of the hearing,
Johnson was 115.25 hours in arrears. Johnson testified that his job prevented him
from completing his community service because he was only off on Sundays.
Johnson admitted that his probation officer had discussed with him the option of
buying out his community service hours, but every time he tried to buy out his
hours, either the time ran out or he could not do it because he had to work.
When viewing the evidence in the light most favorable to the trial court’s
ruling, we conclude the evidence supports a reasonable belief that Johnson violated
his community supervision by failing to perform 120 hours of community service.
See Rickels, 202 S.W.3d at 763-64. The trial court did not abuse its discretion by
granting the State’s second amended motion to revoke probation. Having found
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one ground supporting revocation of Johnson’s community supervision, we need
not reach Johnson’s challenge to the evidence that he committed additional drug
offenses. See Garcia, 387 S.W.3d at 26; Sterling, 791 S.W.2d at 277. We overrule
issue two.
In issue one, Johnson argues that the trial court abused its discretion by
denying his motion to quash the State’s second amended motion to revoke.
According to Johnson, the language in the State’s amended motion to revoke was
couched in general terms and provided no notice as to how he violated the
conditions of his probation and did not enable him to prepare a defense or to
determine what witnesses to subpoena. According to Johnson, the allegations only
stated the name of the offenses he allegedly committed and the date, but the motion
failed to allege other facts that are vital in preparing a defense, such as the names
of anyone he allegedly delivered to or what controlled substance he allegedly
delivered. Johnson concludes that because the motion is wholly insufficient to give
him fair notice of the alleged violations, the trial court abused its discretion by
denying his motion to quash. The State maintains that the motion to revoke
provided adequate notice, and that any error in the motion was harmless, because
Johnson’s counsel had actual notice of the basis for the State’s allegations.
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A motion to revoke must provide the defendant with sufficient information
so that he may prepare a defense. Labelle v. State, 720 S.W.2d 101, 108 (Tex.
Crim. App. 1986); Matte v. State, 572 S.W.2d 547, 549 (Tex. Crim. App. 1978). In
determining whether the trial court committed reversible error by overruling a
motion to quash on notice grounds, “we must first decide whether the motion to
revoke lacked some requisite item of notice, and if so, we next decide whether in
the context of the case this had an impact on the defendant’s ability to prepare a
defense, and finally, the extent of any such impact.” Labelle, 720 S.W.2d at 108.
When a trial court erroneously overrules a motion to quash, the defendant must
show that he was in some way harmed by such error. Chambers v. State, 866
S.W.2d 9, 17 (Tex. Crim. App. 1993); Labelle, 720 S.W.2d at 108. Because the
facts of the case determine whether harm exists, we review the entire record for
evidence of prejudice to the defendant’s substantial rights. Labelle, 720 S.W.2d at
108.
Our review of the record shows that Johnson had actual notice of the
allegations against him prior to the hearing. The record shows that Johnson’s
counsel, the State, and the trial judge discussed that Johnson’s counsel had
received discovery on the alleged offenses prior to the hearing, and the record
shows that Johnson’s counsel had viewed the videos of the alleged offenses.
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Johnson’s counsel was able to cross-examine Officer Borel concerning his
investigation of the alleged offenses and the circumstances surrounding the videos.
Additionally, Johnson’s motion to quash complains about a lack of fair
notice concerning the alleged offenses and not about his failure to perform his
community service hours. Having concluded in issue one that the evidence is
sufficient to support revocation based on the trial court’s finding that Johnson
violated his community supervision by failing to perform his community service
hours, Johnson cannot show that he was harmed by the deficiencies he complained
about in the State’s second amended motion to revoke. See Chambers, 866 S.W.2d
at 17; Labelle, 720 S.W.2d at 108. Because the facts of this case show that
Johnson’s substantial rights were not prejudiced, we conclude the trial court did
not commit reversible error by overruling Johnson’s motion to quash. See Labelle,
720 S.W.2d at 108. We overrule issue one. Having overruled both of Johnson’s
issues, we affirm the trial court’s judgment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on November 2, 2016
Opinion Delivered November 16, 2016
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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