Johnny Ray Demease v. State ( 2009 )

In The

Court of Appeals

For The

First District of Texas

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NO. 01-07-01121-CR

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JOHNNY RAY DEMEASE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1095731

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MEMORANDUM OPINION

          Appellant, Johnny Ray Demease, appeals from the trial court’s judgment that revokes his deferred adjudication and sentences him to eight years’ imprisonment and a $500 fine. In two issues on appeal, appellant contends that the trial court abused its discretion in adjudicating his guilt. We affirm.  

Background

          On March 29, 2007, appellant pled guilty to a charge of possession with intent to deliver more than 28 and less than 200 grams of codeine, and the trial court sentenced him to three years’ deferred adjudication pursuant to a plea agreement. On October 11, 2007, the State filed a motion to adjudicate appellant’s guilt, alleging that appellant violated the terms of his probation by unlawfully possessing with intent to deliver an illegal compound containing codeine; failing to complete a 15-hour Texas Drug Offender Education Program by the required date of September 29, 2007; failing to perform his community service hours at the court-ordered rate; and failing to pay the court-ordered laboratory processing fee. After a hearing, the trial court found all four allegations true, found appellant guilty as originally charged, and sentenced appellant to eight years’ imprisonment and a $500 fine. Adjudication of Guilt

          In two points of error, appellant contends that the trial court abused its discretion in adjudicating his guilt because (1) the evidence was insufficient to establish that appellant possessed codeine as alleged in the State’s motion to adjudicate guilt and (2) the evidence was insufficient to establish that appellant failed to complete the required drug offender education program as alleged in the motion to adjudicate.

Standard of Review

          Although a trial court’s determination to adjudicate guilt was formerly not appealable, a defendant on deferred adjudication may now appeal the trial court’s determination to adjudicate in the same manner as a defendant whose standard community supervision has been revoked. See Tex. Code Crim. Proc. Ann. art.     42.12, §   5(b) (Vernon Supp. 2008) (“This determination is reviewable in the same manner as a revocation hearing conducted under Section 21 of this article in a case in which an adjudication of guilt had not been deferred.”). We therefore apply the same standard of review we would employ in the case of a revocation of community supervision under Article 42.12, Section 21 of the Code of Criminal Procedure.

          We review a trial court’s order adjudicating guilt for abuse of discretion. Akbar v. State, 190 S.W.3d 119, 122 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)) (discussing revocation of community supervision). The hearing is not a criminal trial; it is an administrative hearing. Akbar, 190 S.W.3d at 122 (citing Bradley v. State, 608 S.W.2d 652, 656 (Tex. Crim. App. 1980)). Hence, no jury is required, and the standard of proof needed to show the truth of an allegation is less than that in a criminal trial. Akbar, 190 S.W.3d at 122 (citing Scamardo v. State, 517 S.W.2d 293, 297 (Tex. Crim. App. 1974)).

          The State must prove by a preponderance of the evidence that the defendant violated the terms and conditions of his community supervision. Akbar, 190 S.W.3d at 122 (citing Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983), overruled on other grounds by Saxton v. State, 804 S.W.2d 910, 912, n. 3 (Tex. Crim. App. 1991)). This standard is met when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his community supervision, as the State alleged. Akbar, 190 S.W.3d at 123 (citing Jenkins, 740 S.W.2d at 437). We must examine the evidence in the light most favorable to the trial court’s order. Akbar, 190 S.W.3d at 123 (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981)). When the State has failed to meet its burden of proof, the trial court abuses its discretion by adjudicating guilt. Akbar, 190 S.W.3d at 123 (citing Cardona, 665 S.W.2d at 493-94). To support the court’s order adjudicating guilt, the State need only establish one sufficient ground for revocation. Akbar, 190 S.W.3d at 123 (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980)); Smith v. State, 790 S.W.2d 366, 367 (Tex. App.—Houston [1^st Dist.] 1990, pet. ref’d) (“An order revoking probation is sufficient if the State proves one violation of the probation conditions.”).

Drug Offender Education Program

          Appellant concedes, and the evidence shows, that he did not complete the Texas Drug Offender Education Program before the required date of September 29, 2007. Nevertheless, appellant contends that the trial court abused its discretion because no evidence was introduced at the hearing establishing “that appellant was ordered to participate in or complete the program by a particular date.” If the judgment and order of probation appear in the appellate record, as they do in this case, there is no requirement that the trial court judicially notice or the State prove the conviction and the terms of probation. Cobb v. State, 851 S.W.2d 871, 873-74 (Tex. Crim. App. 1993). The State need only prove the identity of the probationer and that he or she violated the terms of the order of probation. Id. at 874. Appellant presents no challenge to the evidence of his identity, and he does not dispute that he failed to complete the program by the required date. Moreover, appellant acknowledges that we are bound to follow Cobb, stating that he plans to file a petition for review to request that the Court of Criminal Appeals reconsider Cobb.

          We conclude that the evidence established that appellant failed to complete the Texas Drug Offender Education Program before the required date and overrule appellant’s second point of error. Because the State need only establish one sufficient ground for revocation to support the trial court’s order adjudicating guilt, we do not reach appellant’s first point of error. See Akbar, 190 S.W.3d at 123; Moore, 605 S.W.2d at 926; Smith, 790 S.W.2d at 367.

          We conclude that the trial court did not abuse its discretion in adjudicating appellant’s guilt.Conclusion

          We affirm the judgment of the trial court.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.

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