Kenneth Lee Williams v. State ( 2011 )

Affirmed and Opinion filed December 8, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-10-01025-CR
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KENNETH LEE WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 07CR3219
OPINION
Appellant Kenneth Lee Williams pleaded guilty to the offense of aggravated assault
with a deadly weapon in exchange for eight years’ deferred adjudication probation.
Subsequently, the State filed a motion to adjudicate, which the trial court granted.
Appellant was sentenced to four years’ confinement in the Institutional Division of the
Texas Department of Criminal Justice. In two issues, appellant challenges (1) the
voluntariness of his original plea, and (2) the trial court’s consideration of documents not
admitted into evidence. We affirm.
Background
The court held an evidentiary hearing on the State’s motion to adjudicate guilt. At
the hearing, appellant admitted he was the same person who was placed on probation for
aggravated assault. As conditions of his probation, appellant was required to, among
other things, (1) report in person to the supervision officer at least once each month, (2) pay
a probation fee, (3) pay reimbursement to Galveston County for compensation of
appointed counsel, (4) participate in community service work, (5) make an appointment for
an alcohol abuse assessment evaluation, and a drug abuse assessment, and (6) make an
appointment for a battering intervention and prevention program for family and/or
domestic violence.
At the hearing, William Dickey, a Galveston County Adult Probation Officer,
testified that appellant had not reported to the Galveston County Supervision Correction
Department for the months of January, March, April, June, August, and September of
2009. He further testified that appellant was $280 in arrears on payment of supervision
fees, and for his court-appointed attorney. Dickey further testified that appellant has
performed no community service work, nor provided proof of registration for alcohol or
drug abuse assessment or battering intervention and prevention.
Appellant testified that he had never missed a report date, and thought he was
current on payment of fees. Appellant admitted he had not done any of his community
service due to several hardships he had suffered. He further admitted he was unable to
sign up for the battering intervention and prevention program, but would do so if allowed
to stay on probation. At the conclusion of the hearing, the court found that appellant
violated the conditions that he (1) report in person to the supervision office at least once
each month, (2) perform 160 hours of community service at a rate of no less than 16 hours
per month, and (3) make an appointment within 30 days for alcohol abuse and drug abuse
assessment evaluation. The court adjudicated appellant’s guilt and sentenced him to four
years in prison.
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Analysis
In two issues appellant contends the trial court erred (1) in adjudicating his guilt
because his original plea was not freely and voluntarily made, and (2) by informally
re-opening evidence at the adjudication hearing, and improperly considering documents
not admitted into evidence.
Original Plea
In his first issue, appellant contends the trial court erred in overruling his motion for
new trial because the plea on which the deferred adjudication was based was not freely and
voluntarily given.
Under Texas law, a judge may defer the adjudication of guilt of a particular
defendant and place him on probation if he pleads guilty or no contest. Tex. Code Crim.
Proc. art. 42.12, § 5(a). If a defendant wishes to raise issues related to his plea or deferred
adjudication, he must do so on direct appeal from the deferred-adjudication order
immediately after it is imposed; he may not wait until after he violates the terms of his
probation and is found guilty. See Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim.
App. 1999); Hanson v. State, 11 S.W.3d 285, 288 (Tex. App.—Houston [14th Dist.] 1999,
pet. ref’d). Because appellant did not raise the issue of the voluntariness of his plea when
the deferred-adjudication order was initially imposed, he may not complain of it now after
his probation has been revoked. Appellant’s first issue is overruled.
Consideration of Documents Not Admitted into Evidence
In his second issue, appellant contends the trial court erred by considering evidence
of his reports to probation officers without those reports having been admitted into
evidence. At the conclusion of the adjudication hearing, a dispute arose as to whether
appellant had reported to his probation officer for certain months. The probation officer
testified that appellant did not report, and appellant challenged that testimony by stating
that he did report to a probation officer in another county after his probation was
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transferred to that county. In trying to resolve the conflict, the following exchange took
place:
MS. CUCHENS [the prosecutor]: Judge, looking at the allegations and
responding to the defense’s arguments, there’s been testimony that the
defendant did not show up for the dates that we have alleged — probation
told — there’s been testimony that probation went and checked the
paperwork. This is not a matter of paperwork.
THE COURT: Does the State have a copy of the paperwork?
MS. CUCHENS: Do you want these?
THE COURT: I’ve said for years that the State should also give me that if
that’s what they’re alleging. That’s why I told the probation department to
keep those.
MS. CUCHENS: Your Honor, the logs have been checked over there and the
probation officer told you on the stand that the testimony was that he has
checked the records.
THE COURT: You just didn’t submit them as evidence.
MS. CUCHENS: No, your Honor.
THE COURT: Let me see them.
Go ahead.
Appellant alleges in his brief that between the time the trial court said, ―Let me see
them,‖ and ―Go ahead,‖ the court reviewed the probation department’s logs despite the fact
they had not been admitted into evidence. Appellant argues the documents were ―central
to the issues before the court and were apparently not made a part of the record.‖
We review a trial court’s order revoking probation under an abuse of discretion
standard. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In a
probation revocation proceeding, the State has the burden of proving a violation of the
terms of probation by a preponderance of the evidence. Id. at 763–64. The State meets
its burden when the greater weight of the credible evidence creates a reasonable belief that
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the defendant violated a condition of probation as alleged. Id. at 764. In a hearing on a
motion to revoke probation, the trial court is the sole trier of fact, and is also the judge of
the credibility of the witnesses and the weight to be given their testimony. Taylor v. State,
604 S.W.2d 175, 179 (Tex. Crim. App. 1980); Trevino v. State, 218 S.W.3d 234, 240 (Tex.
App.—Houston [14th Dist.] 2007, no pet.). One single violation of the terms of probation
is sufficient to support a trial court’s order revoking probation. Sanchez v. State, 603
S.W.2d 869, 871 (Tex. Crim. App. 1980).
It is difficult to determine from the record whether the trial court reviewed the
probation logs that were not admitted into evidence. The record is clear, however, that
appellant did not object to the trial court’s consideration of the logs. Even if the court had
reviewed the logs, and appellant had timely objected to the court’s review of documents
not in evidence, any error was harmless. Error is harmless if, after examining the record
as a whole, we are reasonably assured the error either did not influence the trial court’s
decision or had only a slight effect. Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim.
App. 2004); Tex. R. App. P. 44.2(b). Consideration of the probation logs goes only to
show that appellant did not report to his probation officer. Appellant did not challenge the
findings that he did not comply with the requirements to perform community service and
enroll in drug and alcohol assessment programs. Therefore, we can uphold the trial
court’s revocation of probation on those unchallenged grounds. See, e.g., Moore v. State,
605 S.W.2d 924, 926 (Tex. Crim. App. 1980). Appellant’s second issue is overruled.
The judgment of the trial court is affirmed.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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