Joseph Edward Mullins, Jr. v. State ( 1998 )

Joseph Edward Mullins v. The State of Texas

  IN THE

TENTH COURT OF APPEALS

No. 10-97-246-CR

     JOSEPH EDWARD MULLINS, JR.,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 93-08-15,421-CR

O P I N I O N

      This is an appeal from a conviction for indecency with a child. See Tex. Pen. Code Ann. § 21.11 (Vernon 1994). In four points of error, Mullins complains of the trial court’s decision to proceed with adjudication. We will overrule two points, dismiss two points, and affirm the court’s decision.

Procedural History

      In August of 1993, Joseph Mullins was charged by indictment with the offense of aggravated sexual assault of a child. He signed a waiver of jury trial, stipulation of evidence and a judicial confession. He then entered a nolo contendere plea. Mullins was sentenced in accordance with a plea bargain agreement to seven years’ deferred adjudication for the lesser-included offense of indecency with a child. The conditions of probation were explained to Mullins, who agreed to abide by them. These conditions of probation were later modified by the trial court.

      In June of 1997, the State filed a motion to proceed with adjudication. A hearing was held on the State’s motion on July 21, 1997. At the hearing, the court adjudicated Mullins guilty of the original offense and assessed punishment at six years’ incarceration in the Institutional Division of the Texas Department of Criminal Justice.

Additional Conditions of Probation

      In points one and two, Mullins complains that his due process rights were violated or, alternatively, that his plea of nolo contendere was involuntary, because the court added conditions of probation “without a motion or waiver of hearing.” He asks that we either reverse and render a decision in his favor or, alternatively, remand the case for additional consideration after deleting the subsequently-added conditions of probation. Mullins relies on Article 42.12, sections 21 and 22 to support his contentions. See Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon Supp. 1998).

      Article 42.12, section 11(a) of the Code of Criminal Procedure states that “[t]he judge of the court having jurisdiction of the case shall determine the conditions of community supervision and may, at any time, during the period of community supervision alter or modify the conditions.” The additional conditions placed on Mullins’ probation were reasonable and “designed to protect or restore the community, protect or restore the victim, punish, rehabilitate, or reform the defendant,” placing them within the purview of Article 42.12, section 11(a).

      Section 21 provides the procedures to be followed in the event violations of community supervision occur, and Section 22 provides the procedures to be followed subsequent to a hearing under Section 21. Thus, Mullins’ reliance on Sections 21 and 22 to support his argument that he had a right to a hearing prior to having his probation conditions modified is misplaced. It is not necessary that the court follow these sections in modifying conditions of probation.

      It is uncontroverted that Mullins was informed about the additional conditions, was provided a copy of the Order, and acknowledged in writing both that he understood and agreed to abide by the additional conditions. The original judgment deferring adjudication unequivocally stated, tracking Article 42.12, section 11(a), that “IT IS FURTHER ORDERED BY THE COURT that the foregoing terms and conditions of probation and the period of the same may be altered, modified, changed or terminated at any time by the Court.” Mullins acknowledged in writing and in open court that he fully understood the conditions of his probation.

      Mullins’ situation is almost identical to that found in Stevens v. State, 938 S.W.2d 517 (Tex. App.—Fort Worth 1997, pet. ref’d). In Stevens, the appellant was placed on deferred adjudication for indecency with a child. Like Mullins, the two additional conditions of which he complained were statutory requirements for sex offenders. The court held that because "community supervision" under Article 42.12 is an integral part of the plea bargain, it is assumed that the statutory requirements were among the matters on which appellant was advised by his attorney before the plea bargain was accepted by the court. The court further pointed out that, on appeal, Stevens ignored a plain term to which he agreed: "the judge ... may at any time during the period of probation alter or modify the conditions . . . ." Likewise did Mullins agree to these same terms. Stevens complained that it was error for the trial judge to later add amendments onto their previously negotiated bargain. The court stated that, “Stevens' argument is the equivalent of ‘I want a reversal because the judge did exactly what I agreed he could do in the first place.’” We find the same to be true of Mullins’ argument. Because a trial court retains continuing jurisdiction over a defendant's probation, it has almost unlimited authority as a matter of law to alter or modify any conditions of probation during the probationary period. Id.; Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (Vernon Supp.1998); Bailey v. State, 888 S.W.2d 600, 604 (Tex. App.—Beaumont 1994, no pet.). Finding that the court was within its authority, we overrule points one and two.

The Decision to Proceed to Adjudication of Guilt

      Mullins complains in points three and four of alleged errors which occurred at the adjudication proceeding. In point three, he maintains the trial court erred by finding sufficient evidence to support a finding that he had violated the terms of his community supervision when he failed to pay the required fees, failed to register in the municipality in which he intended to reside, and failed to attend psychological counseling. In point four he complains that the conditions of probation were too vague to enforce against him. Because these complaints are directed at the trial court’s decision to proceed with adjudication, Mullins is barred from raising them on appeal.

      Article 42.12, section 5(b) of the Code of Criminal Procedure provides that a defendant cannot appeal from “the determination by the court of whether it proceeds with an adjudication of guilt on the original charge.” Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 1998). The Court of Criminal Appeals has held this provision to mean a defendant may appeal “all proceedings after adjudication of guilt on the original charge,” but “the Legislature meant what it said” that no appeal may be taken from the trial court’s decision to proceed with an adjudication of a defendant’s guilt. Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). The decision to proceed with an adjudication of guilt is left to the “absolute, nonreviewable discretion” of the trial court. Burger v. State, 920 S.W.2d 433, 436-37 (Tex. App.—Houston [1st Dist.] 1996, no pet.).

      Consequently, because these complaints are directed at the trial court’s decision to proceed with an adjudication of Mullins’ guilt, he is foreclosed from asserting them on appeal. Points three and four are dismissed. See id. (the proper disposition of complaints about a trial court’s decision to proceed with an adjudication of guilt is dismissal).

      Points three and four are dismissed.

CONCLUSION

      The trial court’s judgment is affirmed.

                                                                               BILL VANCE

Before Chief Justice Davis,                                         Justice

           Justice Cummings, and

           Justice Vance

Affirmed

Opinion delivered and filed April 16, 1998

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es', serif"> See Evans, 889 S.W.2d at 268; Strackbein, 671 S.W.2d at 39; Ward v. Nava, 488 S.W.2d 736, 737 (Tex. 1972). We will not disturb the court’s ruling absent an abuse of discretion. Evans, 889 S.W.2d at 268; Strackbein, 671 S.W.2d at 38. When the trial court does not make findings of fact and conclusions of law, “the judgment must be upheld on any legal theory that finds support in the evidence.” Strackbein, 671 S.W.2d at 38. However, if the defendant makes the showing required by Craddock, the court abuses its discretion by overruling the motion for new trial. Evans, 889 S.W.2d at 268.

      Thus, we will review the record to determine whether Burns presented sufficient evidence by affidavit or at the hearing on his motion for new trial to make a prima facie showing that he did not receive notice of the trial setting. See Guaranty Bank v. Thompson, 632 S.W.2d 338, 339 (Tex. 1982) (citing Ivy, 407 S.W.2d at 214); Dreisbach v. Reed, 780 S.W.2d 901, 902 (Tex. App.—El Paso 1989, no writ). If he did, then we will examine whether Sammons offered controverting evidence sufficient to rebut Burns’s prima facie case. See Evans, 889 S.W.2d at 269; Estate of Pollack, 858 S.W.2d at 391.

APPLICATION

      Burns did not attach affidavits to his motion for new trial. Thus, we must determine whether he offered sufficient evidence at the hearing on his motion for new trial to make a prima facie showing of lack of notice. See Guaranty Bank, 632 S.W.2d at 339; Dreisbach, 780 S.W.2d at 902.

      As previously stated, Burns did not testify at the hearing. Rather the court heard argument of counsel and received a copy of the December 8 letter from Sammons’s counsel requesting a trial setting.

      We are not unmindful of the fact that the court administrator’s notice to Burns was returned undelivered. However, Burns never called this fact to the trial court’s attention. Because the issue before us is the propriety of the court’s ruling on the motion for new trial, we can consider only the evidence submitted to the court in connection with that motion. See Evans, 889 S.W.2d at 268; Strackbein, 671 S.W.2d at 39; Ward, 488 S.W.2d at 737. Thus, we do not consider other evidence appearing in the record.

      Burns bore the burden of presenting prima facie evidence of the allegation in his motion for new trial that he did not receive notice of the trial setting. See Guaranty Bank, 632 S.W.2d at 339; Dreisbach, 780 S.W.2d at 902. He failed to do so. Accordingly, we conclude that the court did not abuse its discretion in overruling his motion for new trial. Thus, we overrule Burns’s first and second points.

      We affirm the judgment.

                                                                               REX D. DAVIS

                                                                               Chief Justice

Before Chief Justice Davis

            Justice Vance and

            Justice Gray

Affirmed

Opinion delivered and filed December 29, 1999

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