in the Interest of K.R.L., Jr. and M.R.L., Children ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00298-CV

In the Interest of K.R.L., Jr. and M.R.L.,

Children,

From the 74th District Court

McLennan County, Texas

Trial Court No. 2006-1100-3

abatement ORDER

The $175.00 filing fee is due, and no affidavit of indigence for purposes of this appeal has been filed.

Appellant’s brief was due on or before November 27, 2007.  On December 7, 2007, we sent a letter to Appellant’s counsel stating that Appellant’s brief was overdue and allowing for 21 days for Appellant to file a response showing grounds for continuing the appeal.  To date, no brief or response has been filed.

There is no statement of points by appellant in the clerk’s record.  See In re R.J.S., 219 S.W.3d 619, 626-27 (Tex. App.—Dallas 2007, no pet. h.).  The Texas Family Code requires an appellant of a state-initiated termination order to file with the trial court, no later than 15 days after the final order is signed, a statement of points on which the appellant intends to appeal.  Tex. Fam. Code Ann. § 263.405(b) (Vernon Supp. 2006).

The Court abates this cause to the trial court with instructions to hold a hearing to determine: (1) why the filing fee has not been paid or an affidavit of indigence has not been filed; (2) why a statement of points was not timely filed; (3) why a proper brief has not been filed on Appellant’s behalf; (4) whether Appellant’s attorney has abandoned the appeal; (5) whether Appellant still desires to proceed with the appeal; (6) whether Appellant is receiving effective assistance of counsel; and (7) whether Appellant desires to represent himself.  See Tex. R. App. P. 38.8(b)(2); cf. Fewins v. State, 170 S.W.3d 293 (Tex. App.—Waco 2005, order).

The trial court shall conduct the hearing within fourteen (14) days after the date of this order.  The trial court clerk and court reporter shall file supplemental records within twenty-eight (28) days after the date of this order.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray does not join this order and notes as follows:  Because no statement of points was filed, I would affirm the trial court’s judgment.)

Appeal abated

Order issued and filed January 23, 2008

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O P I N I O N

       Appellant Booker Thomas Jones pled guilty to the offense of theft of property worth $750 or more but less than $20,000. In exchange for Jones' plea, the State recommended that he be sentenced to ten years' confinement in the Institutional Division of the Texas Department of Criminal Justice, that imposition of the sentence be suspended, and that Jones be placed on community supervision. The trial court suspended Jones' sentence in accordance with the plea agreement and placed him on community supervision on May 19, 1994.

       The State filed a motion to revoke Jones' community supervision on September 6, 1995. After a hearing on the motion, the trial court revoked his community supervision.

       Jones raises three points of error asserting that the evidence was insufficient to support the revocation, that the trial court erred in admitting his recorded oral statement, and that the judgment is defective in that it was signed by a different judge than the one who presided over the revocation hearing.

SUFFICIENCY OF THE EVIDENCE

       The State's motion alleged that Jones violated a certain condition of his probation thus:

Condition (1): (Commit no offense against the laws of the State or any other State or of the United States or of any governmental entity; further, you are to report to your Probation Officer within 48 hours if arrested or questioned by a law enforcement officer); in that the defendant, BOOKER THOMAS JONES, on or about September 3, 1995, in Brazos County, Texas did then and there intentionally and knowingly cause bodily injury to Eugene Cooper by shooting Eugene Cooper and did then and there use a deadly weapon, to-wit: a firearm;

in that the defendant, BOOKER JONES, on or about September 3, 1995, in Brazos County, Texas did then and there intentionally, knowingly and recklessly carry on and about his person a handgun, to-wit: a Beretta 9mm.

At the hearing, Jones admitted that he possessed the weapon but claimed that he shot Cooper in self-defense.

       Jones contends in his first point that because the State joined two offenses in one paragraph, it was bound to prove both offenses by a preponderance of the evidence before his community supervision could be revoked. The State responds that proof of either offense was sufficient to support the trial court's decision to revoke the community supervision.

       The State must prove a violation of community supervision by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). On appeal from an order revoking community supervision, the court determines whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). We consider the evidence in the light most favorable to the court's findings in making this determination. Hill v. State, 719 S.W.2d 199, 201 (Tex. Crim. App. 1986).

       Proof of a single violation will suffice to revoke community supervision. Stevens v. State, 900 S.W.2d 348, 350 (Tex. App.—Texarkana 1995, pet. ref'd). The admission of a defendant to a violation of one of his conditions of community supervision is sufficient to prove a violation of that condition by a preponderance of the evidence. Barajas v. State, 682 S.W.2d 588, 589 (Tex. App.—Waco 1984, no pet.).

       Because Jones admitted to possession of the weapon, the evidence is sufficient to support the revocation. Thus, we overrule his first point of error.

JONES' ORAL STATEMENTS

       Jones claims in his second point that the trial court erred in admitting an electronically recorded oral statement he gave to the officer investigating the shooting of Eugene Cooper because the required statutory warnings for custodial interrogation were not given him. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2) (Vernon Supp. 1997).

       Bryan Police Officer John Crenshaw testified that he investigated the shooting. A witness at the scene told Crenshaw that Jones was involved. After hearing that Crenshaw was "looking for him," Jones called Crenshaw and gave a brief description of the incident to him over the phone. At Crenshaw's request, Jones came to the police department to provide a more detailed account.

       At the beginning of the interview but during the recording, Crenshaw advised Jones as follows:

All right. Booker, you're not under arrest. You came up here of your own free will. You're going to be able to walk right out that door like I told you, but I don't want you leaving one little bit out. I want you to start off at the beginning and tell me what happened out there.

After these admonitions, Crenshaw questioned Jones at length about the shooting. Crenshaw never gave Jones the article 38.22 warnings.

       Crenshaw testified that he had no intention of arresting Jones on the day of the interview regardless of the content of Jones' statement. Crenshaw explained that he was waiting for lab results and presentation of the case to the grand jury before he would arrest Jones.

       Jones argues that because he went to the police department at Crenshaw's request and because the officer told him not to "leav[e] one little bit out," the interview amounted to custodial interrogation. Thus, he contends that the absence of the statutory warnings in the recording renders his statement inadmissible under article 38.22.

       Article 38.22, section 3(a)(2) provides that an electronically recorded oral statement of a defendant obtained by custodial interrogation is inadmissible if certain warnings are not provided the accused "prior to the statement but during the recording." Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2) (Vernon Supp. 1997). The accused must also make a knowing and intelligent waiver of his rights before the statement becomes admissible. Id. If, however, the statement is not obtained as a result of custodial interrogation, no warning is required. Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (Vernon 1979).

       Custody occurs when, under the circumstances, a reasonable person would believe his freedom of movement had been restrained to the extent of a formal arrest. Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 1528-30, 128 L. Ed. 2d 293, 298-99 (1994); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). The court determines whether a person was in custody solely on the basis of objective circumstances. Stansbury, 114 S. Ct. at 1528-29, 128 L. Ed. 2d at 298; Dowthitt, 931 S.W.2d at 254. Questioning at a police station does not, by itself, constitute custody. California v. Beheler, 463 U.S. 1121, 1124-25, 103 S. Ct. 3517, 3519-20, 77 L. Ed. 2d 1275 (1983); Dowthitt, 931 S.W.2d at 255.

       In Beheler, the United States Supreme Court most recently addressed the issue of police station interviews. In that case, the suspect accompanied the officers to the station of his own accord. Beheler, 463 U.S. at 1122, 103 S. Ct. at 3518. The interview lasted less than 30 minutes, and then he was permitted to go home. Id. The Court found that this was not a custodial interrogation. Beheler, 463 U.S. at 1125-26, 103 S. Ct. at 3520. The Court of Criminal Appeals reached the same result in a case where an arson suspect voluntarily went to the fire department for an interview. Meek v. State, 790 S.W.2d 618, 622 (Tex. Crim. App. 1990).

       Because Jones voluntarily came to the police station for his interview, because the officer advised him that he was not under arrest and free to leave at the conclusion of the interview, and because Jones left the station without incident, we conclude that he was not in custody when he provided the statement. Therefore, the article 38.22 warnings were unnecessary. Jones' second point of error is overruled.

THE REVOCATION ORDER

       In his last point, Jones complains that the revocation order is defective because it was signed by a different judge than the one who presided over the revocation hearing.

       Judge Stan Pemberton, sitting as a visiting judge, presided over the revocation hearing. At the conclusion of the hearing, Judge Pemberton found that Jones had violated a condition of his community supervision as alleged, revoked his community supervision, and ordered him to serve the original ten year sentence.

       Seven days later a written "judgment revoking probation" was signed by Judge Carolyn Ruffino, Judge of the 361st District Court. The judgment recites that Judge Pemberton presided over the hearing.

       Jones contends that because Judge Ruffino signed the order, she was the one who actually assessed his punishment. Jones says this was error because she heard no evidence upon which to base a ruling. Thus, he argues, she abused her discretion in revoking his community supervision.

       At the conclusion of a revocation hearing, the judge "may either continue, extend, modify, or revoke the community supervision" after determining that the defendant violated a condition of community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (Vernon Supp. 1997). Once the trial judge has found a violation and pronounced this finding on the record, no further recitations are required to accomplish a revocation "beyond the pronouncement of sentence . . . ." Jones v. State, 795 S.W.2d 199, 201 (Tex. Crim. App. 1990). The failure of the presiding judge to sign a written order revoking community supervision will not affect the judgment's validity. Gonzalez v. State, 508 S.W.2d 388, 388 (Tex. Crim. App. 1974).

       Judge Pemberton stated on the record his finding that Jones had violated a condition of his community supervision. He also pronounced Jones' sentence in accordance with the applicable law. At that moment, Jones' community supervision was revoked and his punishment assessed. The written judgment in no way affected the validity of Jones' revocation. Thus, we overrule his third point of error.

       We affirm the judgment.

                                                                                             REX D. DAVIS

                                                                                             Chief Justice

Before Chief Justice Davis

              Justice Cummings and

              Justice Vance

Affirmed

Opinion delivered and filed February 5, 1997

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