Donald Wesley v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00085-CR

______________________________

DONALD WESLEY, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 3rd Judicial District Court

Anderson County, Texas

Trial Court No. 26347

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

            On May 9, 2003, Donald Wesley pled guilty before the court, pursuant to a plea agreement, to intentionally or knowingly possessing a controlled substance, cocaine. See Tex. Health & Safety Code Ann. § 481.115(a), (b) (Vernon 2003). In accord with the agreement, the trial court found that the evidence substantiated Wesley's guilt, but deferred further proceedings without entering a finding of guilt and placed Wesley on community supervision for five years. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2004–2005).

          On September 19, 2003, the State filed a motion to revoke Wesley's community supervision and to proceed to adjudication and judgment, but later moved to dismiss the motion, noting that the conditions of Wesley's supervision had been modified to place him in a substance abuse sanction program. The State's motion to dismiss was granted by the trial court November 5, 2003. On March 24, 2004, the State filed another motion to revoke Wesley's supervision and to proceed to adjudication and judgment, and amended that motion March 31, 2004.

          A hearing was held on the State's amended motion May 5, 2004. The court found that Wesley had violated the conditions of his community supervision as the State had alleged. The court then adjudged Wesley guilty of the offense originally charged and sentenced him to two years' confinement in a state jail facility.

          Wesley appeals, contending in a single point of error that the trial court erred at his revocation hearing by refusing to consider his affirmative defense of due diligence afforded by Article 42.12, Section 24 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42.12, § 24 (Vernon Supp. 2004–2005).

          Article 42.12, Section 5(b) of the Code of Criminal Procedure provides:

                On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.   

 

Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004–2005).

 

          In construing this provision, the Texas Court of Criminal Appeals has stated:

 

[G]iven the plain meaning of Article 42.12, § 5(b), an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process.

 

Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999).

          The Texas Court of Criminal Appeals went on to hold that the trial court's decision about whether the State exercised due diligence in apprehending the defendant and having a hearing on adjudication of guilt was "merely a part of its decision to revoke and proceed to judgment, and no appeal lies from that decision." Id.

          Although the Connolly court was not construing Article 42.12, Section 24, we hold that a decision by the trial court concerning due diligence pursuant to Article 42.12, Section 24 is likewise "a part of its decision to revoke and proceed to judgment," and that no appeal lies from that decision. See also Poledore v. State, 8 S.W.3d 22, 24 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd).

          We therefore conclude this Court lacks jurisdiction to consider Wesley's challenge to the trial court's refusal to consider his affirmative defense of due diligence under Article 42.12, Section 24.  

          We dismiss the appeal for want of jurisdiction.

 

                                                                           Donald R. Ross

                                                                           Justice

 

Date Submitted:      January 24, 2005

Date Decided:         February 9, 2005

 

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00145-CR

                                                ______________________________

 

 

                               NICHOLAS NOEL SALAZAR, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

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                                       On Appeal from the 114th Judicial District Court

                                                             Smith County, Texas

                                                       Trial Court No. 114-1335-09

 

                                                                                                  

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

 

            At the time Nicholas Noel Salazar’s guilt was orally adjudicated^[1] and he was sentenced by the trial court in Smith County,^[2] the court, among other things, ordered “the balance of restitution paid.”  Shortly thereafter, the trial court entered an order of final adjudication ordering Salazar to pay $11,314.75 as the “amount of restitution owed.”  On appeal, Salazar contends there was no evidence supporting the trial court’s restitution award, such that the balance of restitution owed could not be discerned from the record.^[3]  We disagree.

            “In all revocations of a suspension of the imposition of a sentence the judge shall enter the restitution or reparation due and owing on the date of the revocation.”  Tex. Code Crim. Proc. Ann. art. 42.03, § 2(b) (Vernon Supp. 2010).  We review challenges to restitution orders under an abuse of discretion standard.  Cantrell v. State, 75 S.W.3d 503, 512 (Tex. App.—Texarkana 2002, pet. ref’d) (citing Cartwright v. State, 605 S.W.2d 287, 288–89 (Tex. Crim. App. [Panel Op.] 1980)).  A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner.  Id. (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)).  The amount of restitution must be supported by the record. Campbell v. State, 5 S.W.3d 693, 696, 699 (Tex. Crim. App. 1999) (citing Cartwright, 605 S.W.2d at 289).

            The trial court’s finding of $11,314.75 as the “amount of restitution owed” was supported by the record.  Contained within the trial court’s previous community supervision order, as amended, was a requirement that Salazar “[p]ay restitution in the total amount of $11,744.75 at the rate of $215.00 each month beginning January 2010.”^[4]  At the June 2010 hearing, the State alleged that Salazar failed to pay restitution in March–May of 2010.  Salazar pled “not true” to this allegation.  Salazar’s community supervision officer, Lee Chastain, testified that the last time Salazar made a payment of any sum, including restitution, was February 17, 2010.  Thus, there was sufficient evidence for the trial court to find that restitution was paid for only two months, totaling $430.00.  Subtracting this sum from the amount of restitution initially ordered yields a balance of $11,314.75.

            Because the restitution award was supported by the record, we affirm the trial court’s judgment.

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

 

Date Submitted:          November 17, 2010   

Date Decided:             November 18, 2010

 

Do Not Publish

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^[1]Salazar, earlier, had been placed on deferred adjudication community supervision after having pled guilty to burglary of a habitation. He subsequently pled true to several violations of community supervision.  The trial court adjudicated guilt and sentenced Salazar to eight years’ confinement and a $2,000.00 fine.  Salazar was also ordered to pay restitution in an amount to be determined.Â

 

^[2]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

 

^[3]The State contends that Salazar waived his point of error on appeal by failing to object.  A party need not object to preserve an evidentiary sufficiency claim concerning a restitution order or the amount of restitution.  Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010). 

^[4]The amount of restitution initially ordered is not the subject of this appeal.