Dawn Patrice Moore v. State ( 2015 )

Affirmed as Reformed and Memorandum Opinion filed July 9, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00350-CR
DAWN PATRICE MOORE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1294531
MEMORANDUM OPINION
Appellant Dawn Patrice Moore appeals from the trial court’s revocation of
her deferred adjudication community supervision. In four issues, appellant
contends that (1) the evidence is insufficient to support the trial court’s revocation
of her community supervision; (2) her counsel rendered ineffective assistance of
counsel; (3) her sentence constitutes cruel and unusual punishment; and (4) this
court should reform the judgment to correctly reflect her plea and delete the $500
fine. We reform the trial court’s judgment and affirm the judgment as reformed.
BACKGROUND
In 2011, appellant was indicted for the felony offense of possession with
intent to deliver a controlled substance. See Tex. Health & Safety Code §
481.114(a). Appellant pleaded guilty to the reduced charge of possession of a
controlled substance, namely, codeine in an amount of 200 grams or more, but less
than 400 grams. See id. § 481.118(a), (d). The trial court deferred adjudicating
appellant’s guilt and placed her on community supervision for three years.
On January 16, 2014, the State filed a motion to adjudicate guilt, alleging six
violations of the terms and conditions of her community supervision. The State
alleged that appellant (1) committed a criminal offense;1 (2) failed to report to her
community supervision officer; (3) failed to complete 180 hours of community
service; (4) failed to pay a supervision fee; (5) failed to pay a fine and court costs;
and (6) failed to pay a laboratory processing fee. The trial court held a hearing and
appellant waived arraignment on the State’s motion to adjudicate.2
Adelina Rodriguez, appellant’s probation officer, testified that appellant was
required to report to her monthly but failed to report once in March 2013. During
Rodriguez’s testimony, appellant’s counsel stipulated to the failure to report.
Rodriguez also stated that appellant had only completed 70 hours of community
service, and should have completed all 180 hours by the time of the hearing.
1
The State’s motion to adjudicate alleges that appellant violated her community
supervision by:
Committing an offense against the State of Texas, to-wit; on or about, OCTOBER
20, 2013, in HARRIS County, Texas, the Defendant did then and there
unlawfully, appropriate, by acquiring and otherwise exercising control over
property, namely, FOUR PAIRS OF EARRINGS, owned by ELIZABETH
CHANEY, hereafter styled the Complainant, of the value of over one thousand
five hundred dollars and under twenty thousand dollars, with the intent to deprive
the Complainant of the property.
2
Although the judgment reflects that appellant pleaded “true” to the motion to adjudicate,
appellant did not enter a plea at the hearing.
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Rodriguez stated that she received notice in January 2014 that appellant may have
violated her community supervision by committing theft.
Officer Clinton Edwards testified that in January 2014, he began
investigating appellant for theft of several pieces of jewelry that appellant’s mother
had reported missing. Officer Edwards found pawn receipts in appellant’s name
and saw that the jewelry pawned by appellant matched the jewelry her mother
reported missing to the police. Defense counsel stipulated that appellant pawned
the jewelry. Officer Edwards testified that before going to the pawnshop, he asked
appellant whether she knew anything about the missing jewelry and she stated that
“she didn’t know anything about it.”
Appellant’s mother, Elizabeth Chaney, testified that she was out of the
country for work and came home in December to find that her jewelry was
missing. She stated that the jewelry was worth approximately $83,600. Chaney
spoke to the appellant, who admitted that she took the jewelry but told her it was
gone and that she sold it for $6,000. Chaney stated that she never gave appellant
permission to take her jewelry or to pawn those items. Chaney filed a police report
in January.
Appellant testified that her mother gave her permission to pawn the jewelry
because she was having a difficult time taking care of her daughter, sister, and
brother while her mother was out of the country. Appellant stated that she and her
mother discussed the situation on December 23 and they worked out an agreement
in which appellant would pay her mother back. Appellant admitted to missing one
probation meeting and admitted to being behind on her community service hours.
The trial court found three of the State’s alleged violations true, revoked
appellant’s community supervision, and assessed punishment at four years in
prison.
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ISSUES AND ANALYSIS
In four issues, appellant contends that (1) the evidence is insufficient to
support the trial court’s revocation of her community supervision; (2) her counsel
rendered ineffective assistance of counsel during the hearing on the motion to
adjudicate; (3) her four-year sentence was a form of cruel and unusual punishment;
and (4) the court should reform the judgment to correctly reflect appellant’s plea
and delete the $500 fine.
I. Sufficiency of the Evidence
In her first issue, appellant asserts that the evidence is insufficient to support
the trial court’s revocation of her community supervision because (1) appellant
testified that she had her mother’s permission to pawn the jewelry; (2) she did not
recall missing a reporting date with her probation officer; and (3) she performed at
least seventy hours of community service.
We review a trial court’s decision to revoke community supervision for an
abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).
In a revocation proceeding, the State must prove by a preponderance of the
evidence that the defendant violated the terms and conditions of community
supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). A
preponderance of the evidence means “that greater weight of the credible evidence
which would create a reasonable belief that the defendant has violated a condition
of his probation.” Rickels, 202 S.W.3d at 763−64. The trial court is the sole judge
of the credibility of the witnesses and the weight to be given their testimony.
Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). We
examine the evidence in the light most favorable to the trial court’s ruling.
Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). If the State fails to
meet its burden of proof, the trial court abuses its discretion by revoking the
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community supervision. Id. at 493−94.
When a trial court finds several violations of community supervision
conditions, we will affirm if the proof of any single allegation is sufficient. See
Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012). Thus, to prevail on
appeal, a defendant must successfully challenge all of the findings that support the
trial court’s revocation order. See id.Appellant argues that the evidence is insufficient to show she committed a
criminal offense because she had her mother’s permission to pawn the jewelry and
she had an agreement with her mother to pay her back. Appellant also points to one
witness’s testimony that appellant’s mother’s reputation for honesty was bad.
Although appellant testified that she had her mother’s permission to pawn the
jewelry, her mother, Elizabeth, stated that she did not give appellant permission.
Officer Edwards investigated the theft by speaking with Elizabeth and confirmed
that appellant pawned the jewelry and appellant initially denied knowing anything
about it.
As the factfinder of the revocation hearing, the trial court was the sole judge
of each witness’s credibility and the weight to be given to his or her testimony; as
such the court was free to believe or disbelieve all or part of any witness’s
testimony in resolving conflicts in the evidence. See Slater v. State, 646 S.W.2d
528, 530 (Tex. App.—Houston [1st Dist.] 1982, pet. ref’d). The trial court could
have reasonably believed Elizabeth and the police officer over appellant and the
other witnesses.
Further, appellant’s probation officer testified that appellant missed one
reporting date in March of 2013. Appellant stated that she could not recall missing
a reporting date but also did not deny it. When the prosecutor asked appellant
about missing a reporting date, she agreed that she missed a date. Further,
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appellant’s counsel stipulated to the fact that she missed her reporting date in
March. Generally, the appellant’s failure to report is a sufficient basis for the trial
court’s decision to revoke appellant’s community supervision. See Greer v. State,
999 S.W.2d 484, 489 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (no abuse
of discretion to revoke for failing to report for a single month).
Rodriguez also testified that appellant had only completed 70 out of the
required 180 hours of community supervision. Appellant admitted that she was
behind on her community service hours but claimed that it was because she did not
have transportation and she was required to go far out of town.
Based on the evidence in the record and the required standard of review, we
conclude that the trial court did not abuse its discretion for revoking appellant’s
deferred adjudication community supervision based on a finding that she
committed a criminal offense, failed to report to her probation officer, and failed to
complete her community service.
We overrule appellant’s first issue.
II. Ineffective Assistance of Counsel
In her second issue, appellant contends that she received ineffective
assistance of counsel during her hearing on the motion to adjudicate because her
counsel (1) failed to have appellant plead “not true” to the State’s allegations; (2)
stipulated to the failure to report; (3) failed to adequately prepare appellant to
testify; (4) failed to adequately prepare for the hearing; and (5) failed to object to
the sentence as being cruel and unusual punishment.
We examine claims of ineffective assistance of counsel by applying the two-
prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Davis v.
State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). Under Strickland, appellant
must prove by a preponderance of the evidence that (1) counsel’s performance fell
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below an objective standard of reasonableness; and (2) counsel’s deficient
performance prejudiced the defense, resulting in an unreliable or fundamentally
unfair outcome of the proceeding. Id.When the record is silent as to trial counsel’s strategy, we will not conclude
that appellant received ineffective assistance unless the challenged conduct was
“so outrageous that no competent attorney would have engaged in it.” Goodspeed
v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial record
contain sufficient information to permit a reviewing court to fairly evaluate the
merits of such a serious allegation. See Bone v. State, 77 S.W.3d 828, 833 (Tex.
Crim. App. 2002).
Appellant first contends that counsel was ineffective because she failed to
have appellant enter a plea of “not true” to the State’s allegations. However, there
is no requirement that a defendant on community supervision enter a plea to the
allegations in the motion to adjudicate. See Detrich v. State, 545 S.W.2d 835, 837
(Tex. Crim. App. 1977) (holding that due process does not require a plea be
entered in a motion to revoke community supervision hearing); see also Anthony v.
State, 962 S.W.2d 242, 246 (Tex. App.—Fort Worth 1998, no pet.) (“[T]he Court
of Criminal Appeals has held that due process does not even require appellant be
given the right to enter a plea to an alleged community supervision violation.”).
Thus, counsel was not deficient in failing to have appellant enter a plea at the
hearing.
Appellant asserts that counsel was ineffective by stipulating to the State’s
allegation that appellant failed to report to her probation officer. As recited above,
sufficient proof of one violation is sufficient to support a revocation. Appellant
admitted, and her probation officer confirmed, that she failed to complete the
requisite hours of community service. Appellant also admitted that she failed to
report to her probation officer on one occasion in March 2013. Thus, even if
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counsel’s performance was deficient, the outcome of the proceeding would have
been the same.
Although appellant claims that counsel failed to properly prepare for the
revocation hearing and failed to properly prepare her to testify, the record does not
reflect what preparation, if any, counsel undertook before the revocation hearing.
Without support in the record for appellant’s assertions regarding lack of
preparation, she cannot demonstrate ineffectiveness in this regard. See Thompson
v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (providing that “[a]ny
allegation of ineffectiveness must be firmly founded in the record”).
Appellant also argues that counsel was ineffective based on counsel’s failure
to object that appellant’s sentence was a form of cruel and unusual punishment.
Before this court may conclude counsel was ineffective for failing to make an
objection, appellant must show the trial court would have erred by overruling the
objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (per
curiam). Appellant cannot make this showing because her sentence lies within the
punishment range, and therefore is not cruel and unusual. See Jagaroo v. State, 180
S.W.3d 793, 800 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). It is not
ineffective assistance for counsel to forego making frivolous arguments and
objections. Id. Thus, counsel was not deficient in failing to object to appellant’s
sentence.
We overrule appellant’s second issue.
III. Cruel and Unusual Punishment
In her third issue, appellant argues that her sentence constitutes cruel and
unusual punishment because it is grossly disproportionate to the crime when
compared to the gravity of the offense and she could have been reinstated on
probation instead of being sentenced to prison. Appellant concedes in her brief that
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her counsel did not object to the sentence at the hearing and that failure to object
prevents making any such claim on appeal. Appellant argues, however, that her
sentence constitutes fundamental error that may be raised for the first time on
appeal. See Tex. R. Evid. 103(e).
A defendant must make a timely, specific objection at trial to preserve error
for review. Tex. R. App. P. 33.1(a). Generally, a party’s failure to make a timely
objection waives the error. Collins v. State, 378 S.W.3d 629, 631 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). Even constitutional errors may be waived by
failure to object at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App.
1995).
Texas courts have established that failure to raise an Eighth Amendment
cruel and unusual punishment claim at the trial level waives the claim on appeal.
See Saldano v. State, 70 S.W.3d 873, 891 (Tex. Crim. App. 2002); Arriaga v.
State, 335 S.W.3d 331, 334 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
Such claims have been held not to be so fundamental as to relieve the appellant of
the necessity of a timely, specific objection at trial. See Curry v. State, 910 S.W.2d
490, 497−98 (Tex. Crim. App. 1995). Because appellant did not object to her
sentence on cruel and unusual punishment grounds, appellant has failed to preserve
error for review.
We overrule appellant’s third issue.
IV. Modification of the Judgment
In her fourth issue, appellant asks this court to reform the judgment to
correctly reflect appellant’s plea as “N/A” and to delete the $500 fine. The State
concedes that the judgment should be reformed.
The record reflects that appellant waived arraignment on the State’s motion
to adjudicate and did not enter a plea at the hearing. The record also reflects that
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the trial court did not orally pronounce the $500 fine listed in the judgment. The
judgment, however, incorrectly lists a $500 fine and appellant’s plea to the motion
to adjudicate as “true.”
“[A]n appellate court has authority to reform a judgment to include an
affirmative finding to make the record speak the truth when the matter has been
called to its attention by any source.” French v. State, 830 S.W.2d 607, 609 (Tex.
Crim. App. 1992) (citing Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—
Dallas 1991, pet. ref’d) (en banc)); see also Haggerty v. State, 429 S.W.3d 1, 12
(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). We conclude that the record
supports modification of the judgment because it incorrectly reflects that appellant
pleaded “true” and that the trial court pronounced a $500 fine. Accordingly, we
reform the judgment to reflect appellant’s plea to the motion to adjudicate as
“N/A” and the fine as “$0.”
We sustain appellant’s fourth issue.
CONCLUSION
We reform the trial court’s judgment and affirm the judgment as reformed.
/s/ Ken Wise
Justice
Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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