Aaron Jamel Lewis v. State ( 2009 )

NO. 07-08-0307-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 10, 2009

______________________________

AARON JAMEL LEWIS,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 181^ST DISTRICT COURT OF POTTER COUNTY;

NO. 50322-B; HON. JOHN BOARD, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Aaron Jamel Lewis pled guilty in 2005 to possessing a controlled substance in a drug free zone and received deferred adjudication per a plea bargain, and was placed on probation for four years. On June 24, 2008, the court heard the State’s second amended motion to proceed with adjudication of guilt. Appellant pled “true” to two of the allegations and the trial court found by a preponderance of the evidence that the remaining allegations were true. Thereafter, the court adjudicated appellant guilty and sentenced him to fifteen years confinement. Appellant now argues in two issues that his plea was unknowing and involuntary because the court informed him of an incorrect range of punishment. We disagree and affirm the judgment.

          It is unclear from appellant’s brief whether he is contesting his original plea or his plea of true to two of the allegations in the motion to proceed to adjudication of guilt. If it is the former, appellant was required to raise the matter at the time he was placed on deferred adjudication. Webb v. State, 20 S.W.3d 834, 836 (Tex. App.–Amarillo 2000, no pet.). We will therefore not consider it.

          As to the latter, the trial court is not required to admonish appellant as to the punishment range at a probation revocation proceeding. Harris v. State, 505 S.W.2d 576, 578 (Tex. Crim. App. 1974). This rule has been extended to include pleas of true entered in a proceeding to adjudicate guilt, as here. Kinney v. State, No. 04-02-0173-CR, 2002 Tex. App. Lexis 7194 (Tex. App.–San Antonio October 9, 2002, no pet.) (not designated for publication); Heard v. State, No. 09-00-0532-CR, 2001 Tex. App. Lexis 6887 (Tex. App. –Beaumont October 10, 2001, no pet.) (not designated for publication). However, even if the admonishment was required and appellant’s plea of true to those allegations was involuntary due to an incorrect admonishment, the trial court found appellant had violated other terms and conditions of his community supervision to which he did not plead true. Those violations included fleeing from a peace officer attempting to arrest or detain him, smoking marijuana, voluntarily remaining at a residence where a criminal act was being committed, and failing to remain at his place of residence between the hours of 11:00 p.m. and 6:00 a.m. Appellant does not challenge those findings on appeal, and a finding of true with respect to any one of those allegations was sufficient to sustain the revocation of appellant’s community supervision. Atchison v. State, 124 S.W.3d 755, 758-59 (Tex. App.

–Austin 2003, pet. ref’d).

          Accordingly, we overrule appellant’s issues and affirm the judgment.

                                                                           Brian Quinn

                                                                          Chief Justice

Do not publish.

ses calculated the damages to Gore to be $84,045. Our review of the record reveals that the only basis for the jury’s $172,000 damage award to Gore is subtracting the $749,000 that SAA paid Gore from the $921,000 total value of the contract. However, as SAA contends, Gore is not entitled to the full contract value because it did not fully perform. That Gore did not fully perform was also recognized by the trial court’s instruction to the jury that Gore had not substantially completed the work on the aircraft. As a result, there is no evidence supporting the jury’s $172,000 award. Accordingly, we reverse the trial court’s judgment in regard to the quantum meruit damages suffered by Gore. However, there is legally sufficient evidence that Gore suffered some damages as a result of SAA’s conduct. But, because the issue of damages was contested vigorously by SAA, we cannot render judgment for a lesser amount. Formosa Plastics Corp. v. Presidio Engr. & Contractors, Inc., 960 S.W.2d 41, 51 (Tex. 1998). Instead, we must remand the case for a new trial. Id.

          Inasmuch as this issue disposes of this appeal, we will not address SAA’s other contentions.

Conclusion

          Having determined that the evidence is legally insufficient as to the award of $172,000, but that there is sufficient evidence as to some damages, we reverse the judgment of the trial court and remand the case for a new trial.

                                                                           Mackey K. Hancock

                                                                                     Justice