Moakler, Ronald Lee v. State ( 2003 )

Opinion issued April 17, 2003

In The

Court of Appeals

For The

First District of Texas

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  NO. 01-00-00945-CR

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RONALD LEE MOAKLER, Appellant

V.

THE STATE OF TEXAS, Appellee

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  On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 719597   

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MEMORANDUM OPINION

          A jury convicted appellant, Ronald Lee Moakler, of aggravated sexual assault of a child in 1997. The jury assessed punishment at confinement for eight years, but as recommended by the jury, appellant’s sentence was probated and he was placed on community supervision for eight years. The State filed a motion in March 2000 to revoke community supervision. On July 17, 2000, the trial court revoked appellant’s community supervision and sentenced the appellant to confinement for five years.

          In his sole point of error, appellant asserts that the trial court abused its discretion by revoking community supervision and sentencing appellant to serve five years.

          As modified, we affirm.

Abuse of Discretion

          We review an order revoking probation under an abuse of discretion standard. Greathouse v. State, 33 S.W.3d 455, 458 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). In making this determination, we examine the evidence in the light most favorable to the trial court’s order. See Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981).   

          If the State can prove the violation of a condition of probation by a preponderance of the evidence, the order of revocation will be supported. Greathouse, 33 S.W.3d at 458 (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980)). If the State fails to meet its burden of proof, the trial court abuses its discretion in issuing an order to revoke probation. Greathouse, 33 S.W.3d at 458. One sufficient ground for revocation will support the court’s order to revoke probation. Moore, 605 S.W.2d at 926.   

Discussion

          Appellant asserts that the only ground upon which the trial court revoked his community supervision as stated in the “Order Revoking Community Supervision” was that he violated the terms of community supervision by going within 100 yards of a school. Appellant also contends that there is nothing in the record to evidence that it was a violation of his community supervision to go within 100 yards of a school; rather, he asserts that the terms of his community supervision stated 50 feet. Finally, appellant contends that such term is unenforceable because it does not specify the manner in which the distance is to be measured, and thus the requirement is impermissibly vague.

          Appellant cites to Clapper v. State, in support of his claim that this written order controls over the oral ruling by the trial court. 562 S.W.2d 250 (Tex. Crim. App. 1978). The State contends we should correct the order revoking community supervision to include appellant’s failure to register as a sex offender in Pasadena. An erroneous recitation in a judgment or sentence can be reformed to reflect the true finding of the fact finder when such a finding is reflected in the pronouncement of the court’s finding. See Milczanowski v. State, 645 S.W.2d 445, 447 (Tex. Crim. App. 1983). An appellate court has the power to correct and reform a trial court judgment “to make the record speak the truth when it has the necessary data and information to do so, or make any appropriate order as the law and nature of the case may require.” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

          In Smith v. State, the order revoking probation did not include appellant’s failure to “maintain” employment. 790 S.W.2d 366, 368 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). However, at sentencing, the trial court orally pronounced that “[t]he court finds the allegations of failing to secure and maintain employment, failing to pay restitution to be true.” Id. This Court held that it had the authority to reform the judgment and that the omission from the court’s order that the appellant did not “maintain” employment was a clerical error, subject to correction on appeal. Id.

          In this case, the record reflects that the trial court made the following pronouncement: “I make a finding that you violated the terms and conditions of the probation by failing to report as ordered by the Pasadena Police Department on or about February 1st of the year 2000, violating the 100 yards.” Therefore, we reform the “Order Revoking Community Supervision” to include a violation of the requirement to register with the Pasadena Police Department as required under the Sexual Offender Registration Program on or about February 1, 2000.

          Because we find that the trial court orally pronounced that appellant had violated the terms and conditions of probation by failing to report as ordered, we consider whether the State proved a violation of this condition by a preponderance of the evidence. Greathouse, 33 S.W.3d at 458.

          During the hearing on the order to revoke community supervision, Linda Bailli-Perez of the Pasadena Police Department (PPD), testified that she received notification from the Houston Police Department on January 26, 2000, that appellant had moved to Pasadena. Bailli-Perez also testified that (1) she is the only person who registers sex offenders for Pasadena, (2) it is the sex offender’s responsibility to notify her and schedule an appointment, (3) a sex offender is not officially registered until he comes in, (4) she had no contact with appellant, and (5) appellant never came in and registered with the PPD.

          Charles Bennett, an interstate sex offender officer with the Harris County Community Supervision and Corrections Department, testified that appellant’s file reflected that he had moved to Pasadena on or about January 24, 2000. Officer J. A. Jacobs, who works for the HPD registering sex offenders, testified that appellant came into her office on January 26, 2000, and gave her a change of address to 4747 Burke, No. 279, in Pasadena. Jacobs explained to appellant that he needed to report to Pasadena within seven days.

          Appellant testified that he knew he had to register a change of address and that he had done it several times before. Throughout his testimony, appellant stated that he was confused, frustrated, and did not understand all the requirements he had to comply with. However, as demonstrated during the State’s cross-examination of appellant, he was capable of studying for and taking the Texas driver’s license test, and he managed to go to the post office and complete a change of address form, among other things. Appellant never testified that he actually did register with the PPD as required.

          We find that, as the fact finder, the trial court could conclude that the State proved by a preponderance of the evidence that appellant failed to register with the PPD as required by the terms and conditions of his community supervision. Because one sufficient ground for revocation will support the court’s order to revoke probation, we need not address whether appellant also violated the terms of his community supervision by living too close to a school. Moore, 605 S.W.2d at 926.

          We overrule appellant’s sole point of error.

    Conclusion

          We modify the trial court’s July 17, 2000 “Order Revoking Community Supervision” to reflect that appellant violated the terms and conditions of community supervision by failing to register with the Pasadena Police Department on or about February 1, 2000, as required under the Sexual Offender Registration Program. As so modified, we affirm the judgment of the trial court.

                                                             Laura C. Higley 

                                                             Justice

Panel consists of Justices Taft, Keyes, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).