Juan Daniel Licon v. State ( 2012 )

NUMBER 13-11-00651-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JUAN DANIEL LICON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 252nd District Court
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Vela
Appellant, Juan Daniel Licon, appeals from an order revoking his probation and
sentencing him to two years in state jail. By two issues, appellant contends that the trial
court abused its discretion in revoking his probation and stacking his two-year state jail
sentence on top of a possible future sentence. We affirm as modified.
I. PROCEDURAL HISTORY
The record reflects the following. On April 10, 2003, appellant was indicted for
felony theft. TEX. PENAL CODE ANN. § 31.03 (West 2011). On January 30, 2006,
appellant entered into a plea agreement with the State and was placed on deferred
adjudication community supervision for five years. The State filed a motion to revoke
appellant's probation on February 2, 2010. On April 12, 2010, his probation was
extended for two years. Due to new felony theft charges involving a vehicle stolen from a
dealership, the State filed a second motion to revoke appellant's probation on July 8,
2011. Appellant's probation was revoked on September 12, 2011, and he was
sentenced to two years in state jail.
II. DISCUSSION
Appellant argues in his first issue that the trial court erred in revoking his probation
because: (1) the State failed to prove material allegations in the State's amended motion
to revoke; and (2) there is insufficient evidence to show that appellant committed the
offense of theft as alleged. In his second issue, appellant argues that the trial court erred
in ordering the stacking of his two-year sentence on top of a possible future Harris County
sentence. The State concedes error on appellant's second issue because under Texas
law, the trial court does not have authority to stack a sentence upon a potential sentence
in a pending matter. TEX. CODE CRIM. PROC. ANN. § 42.08 (West 2009). While the trial
judge orally pronounced the stacking of appellant's sentence, the written judgment in this
case does not include a cumulation order. When the oral pronouncement of sentence
and the written judgment vary, the oral pronouncement controls. Coffey v. State, 979
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S.W.2d 326, 328 (Tex. Crim. App. 1998). Therefore, appellant's second issue is
sustained and we modify the judgment to reflect that the sentence will run concurrently
with any sentence imposed in Harris County.
A. Standard of Review and Applicable Law
The standard of review for the revocation of a probated sentence is whether the
district court abused its discretion. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.
1993). A court abuses its discretion when it "applie[s] an erroneous legal standard, or
when no reasonable view of the record could support [its] conclusion under the correct
law and the facts viewed in the light most favorable to its legal conclusion." Lanum v.
State, 952 S.W.2d 36, 39 (Tex. App.—San Antonio 1997, no writ) (quoting DuBose v.
State, 915 S.W.2d 493, 497–98 (Tex. Crim. App. 1996)). The State bears the burden of
proving the allegations of a motion to revoke probation and "an order revoking probation
must be supported by a preponderance of the evidence; in other words, that greater
weight of the credible evidence which would create a reasonable belief that the defendant
has violated a condition of his probation." Scamardo v. State, 517 S.W.2d 293, 298
(Tex. Crim. App. 1974).
B. Analysis
1. State's Failure to Prove Material Allegations
The pleading of a motion to revoke probation need not meet the requirements of
an indictment. Figgins v. State, 528 S.W.2d 261, 263 (Tex. Crim. App. 1975); see
Fowler v. State, 509 S.W.2d 871, 873 (Tex. Crim. App. 1974). It is enough that the
pleadings give the defendant fair notice of allegations against him so that he may prepare
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a defense. Id. Appellant argues that the State failed to prove that the owner of the
alleged stolen vehicle was Diane M. Boothe and that because the witness identified
herself as "Miriam Diane Boothe," there could be two separate people involved. While
the name of the owner is not a substantive element of theft, the State is required to prove,
beyond a reasonable doubt, that the person alleged in the indictment is the same person.
Byrd v. State, 336 S.W.3d 242, 252 (Tex. Crim. App. 2011). To determine whether a
variance between the indictment and evidence materially prejudiced appellant's
substantial rights, we must ask whether the indictment informed appellant "of the charge
against him sufficiently to allow him to prepare an adequate defense at trial and would the
indictment subject appellant to the risk of being prosecuted later for the same crime?"
Gollihar v. State, 46 S.W.3d 243, 258 (Tex. Crim. App. 2001).
We find no indication that, in fact, "Diane M. Boothe" and "Miriam Diane Boothe"
are separate people. Diane M. Boothe stated that her position of employment was
comptroller of the dealership that owned the vehicle. As comptroller, Boothe testified
that she was responsible for "all financial records, for financial statements, for making
sure all cash is accounted for, that all of the inventories are correct, all the books are
straight." Appellant took the stand at the hearing and stated that while Diane does not
own the company, "she's the one that pretty much controls everything that goes on at that
store." It is clear from the hearing testimony that the State proved that Diane M. Boothe
was the representative, by virtue of her employment as comptroller, of the owner of the
vehicle. Whether the witness goes by "Diane M. Boothe" or "Miriam Diane Boothe" is not
material to the allegations in this case. The motion to revoke probation met the
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requirement that appellant in this case be given fair notice of the allegations against him
in order to prepare a defense and did not subject him to the risk of being prosecuted later
for the same crime. Id.
2. Insufficient Evidence
The trial judge is the sole trier of facts, the credibility of the witnesses and the
weight to be given the testimony. Ross v. State, 523 S.W.2d 402, 403 (Tex. Crim. App.
1975). Two witnesses testified at the motion to revoke probation hearing. The first
witness, Boothe, identified the missing vehicle, identified appellant as a former employee,
and stated that she received tips that appellant stole the vehicle. The second witness,
Javier Guerrero, identified appellant as his fellow employee and as the person that he
saw drive away in the vehicle in question. Guerrero also testified that appellant verbally
threatened him after finding out that Guerrero "tattletaled" to Boothe and other
management personnel. The judge in this case found the witnesses to be credible and
their testimony to be sufficient to establish that appellant committed felony theft as
alleged in the indictment. Based on the preponderance of evidence, a reasonable belief
that appellant violated a condition of his probation exists. See Scamardo, 517 S.W.2d at
298.
Appellant's probation was conditional on his not committing any additional crime.
The evidence at the revocation hearing showed that he committed another crime;
therefore it is legally sufficient to support the trial court's decision to revoke appellant's
probation. We overrule appellant's first issue.
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III. CONCLUSION
Finding the court did not abuse its discretion, we affirm the judgment as modified
herein.
ROSE VELA
Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
12th day of July, 2012.
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