Conley Wendt v. State ( 2013 )

NO. 12-13-00073-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CONLEY WENDT, § APPEAL FROM THE 349TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § HOUSTON COUNTY, TEXAS
MEMORANDUM OPINION
Conley Wendt appeals the revocation of his deferred adjudication community supervision.
In two issues, Appellant argues the revocation constitutes an abuse of the trial court’s discretion.
We affirm.
BACKGROUND
Appellant entered a plea of guilty to possession of a controlled substance, cocaine. The
trial court accepted Appellant’s plea, found the evidence was sufficient to support a finding of
Appellant’s guilt, deferred further proceedings without entering an adjudication of guilt, and
ordered that Appellant be placed on deferred adjudication community supervision for ten years. 1
The trial court also ordered that Appellant pay court costs and restitution.
Later, the State filed a first amended motion to proceed with an adjudication of guilt,
alleging in three paragraphs that Appellant had violated the terms of his community supervision.
At the hearing on the application, Appellant pleaded “true” to all the allegations contained in the
State’s motion. After a hearing, the trial court found the allegations to be “true,” adjudged
Appellant guilty of the underlying third degree felony offense, and assessed his punishment at
seven years of imprisonment and court costs. This appeal followed.
1
See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(a) (West Supp. 2013).
EVIDENTIARY SUFFICIENCY
In his first and second issues, Appellant argues the trial court abused its discretion by
revoking his community supervision because the evidence is insufficient to show that he violated a
condition of his community supervision. In his first issue, he contends the condition alleged to
have been violated, i.e., that he not commit an offense against the laws of this State or any other
State of the United States or of any governmental entity, does not appear to have been imposed in
the order of community supervision. In his second issue, he argues that he was entitled to the
affirmative defense of necessity.
Standard of Review and Applicable Law
In community supervision revocation cases, the state has the burden to establish by a
preponderance of the evidence that the terms and conditions of community supervision have been
violated. See Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The preponderance
of the evidence standard is met when the greater weight of the credible evidence before the trial
court supports a reasonable belief that a condition of community supervision has been violated.
Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006).
When the state has met its burden of proof and no procedural obstacle is raised, the
decision whether to revoke community supervision is within the discretion of the trial court.
Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. 1979). Thus, our review of the trial
court’s order revoking community supervision is limited to determining whether the trial court
abused its discretion. Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). When a
trial court finds several violations of community supervision conditions, we affirm the revocation
order if the proof of any single allegation is sufficient. See Hart v. State, 264 S.W.3d 364, 367
(Tex. App.—Eastland 2008, pet. ref’d); Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.—Tyler
2002, no pet.). In other words, if there is some evidence to support the finding of even a single
violation, the revocation order must be upheld. Cochran, 78 S.W.3d at 28 (citing Moore v. State,
605 S.W.2d 924, 926 (Tex. Crim. App. 1980)). A plea of “true,” standing alone, is sufficient to
support a revocation of community supervision. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim.
App. 1979); Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979). Indeed, an
appellant cannot question the sufficiency of the evidence underlying the decision once he has
pleaded “true.” See Cole, 578 S.W.2d at 128; Moore v. State, 11 S.W.3d 495, 498 n. 1 (Tex.
App.—Houston [14th Dist.] 2000, no pet.).
2
Analysis
Here, Appellant pleaded “true” to all of the allegations in the State’s motion that he
violated the terms of his community supervision by possessing a controlled substance. Appellant’s
plea of “true” to any of these violations is sufficient to support the trial court’s revocation order.
See Moses, 590 S.W.2d at 470; Cole, 578 S.W.2d at 128. But even if this were not the law, the
result would not change.
Regarding the conditions of Appellant’s community supervision (his first issue), a
supplement to the clerk’s record filed in this case includes an order imposing conditions of
community supervision signed by Appellant on the day he pleaded guilty to the underlying
offense. This order reveals that the first condition is an order for Appellant to commit no offense
against the laws of this State or any other State of the United States or of any governmental entity.
Moreover, regarding his entitlement to the affirmative defense of necessity (his second issue),
Appellant did not raise necessity during his revocation hearing. Nor did he request that the trial
court consider necessity as an affirmative defense to the allegations in the State’s motion.
Therefore, even if he had not pleaded “true” to the State’s allegations, he would be unable to make
this complaint on appeal. See Suell v. State, No. 12-07-00193-CR, 2008 WL 836557, at *1 (Tex.
App.—Tyler Mar. 31, 2008, no pet.) (appellant not allowed to raise affirmative defense of
entrapment for first time on appeal).
Because Appellant’s plea of “true” to any of the State’s allegations supported the
revocation order, the trial court did not abuse its discretion by revoking Appellant’s community
supervision. Accordingly, we overrule Appellant’s first and second issues.
DISPOSITION
Having overruled Appellant’s first and second issues, we affirm the judgment of the trial
court.
BRIAN HOYLE
Justice
Opinion delivered December 20, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 20, 2013
NO. 12-13-00073-CR
CONLEY WENDT,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 349th District Court
of Houston County, Texas (Tr.Ct.No. 08CR-153)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.