Hockeem Jamal Jefferson v. State ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00054-CR
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HOCKEEM JAMAL JEFFERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 11-12961
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MEMORANDUM OPINION
Claiming the trial court improperly considered grounds alleged in the State’s
amended motion to revoke a community supervision order, Hockeem Jamal
Jefferson appeals from a judgment finding him guilty of robbery. According to
Jefferson, because the trial court began hearing evidence on the State’s original
motion to revoke, filed in October 2012, the State could not subsequently amend
its motion and raise new and different facts in seeking to revoke the community
supervision order. Jefferson also argues that the trial court abused its discretion by
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improperly cumulating his sentence in this case with his sentence in Cause Number
12-15402. We affirm the trial court’s judgment.
In carrying out a plea bargain agreement, Jefferson pled guilty to committing
a robbery that occurred in November 2011. See Tex. Penal Code Ann. § 29.02
(West 2011). Under the terms of Jefferson’s plea agreement, the trial court
deferred the adjudication of Jefferson’s guilt, placed Jefferson on community
supervision for two years, and assessed a fine of $500. In October 2012, the State
filed a motion to revoke, alleging nine grounds in support of its request to revoke.
During a hearing to address the State’s October 2012 motion to revoke, Jefferson
pled “[t]rue” to the State’s allegation that, in September 2012, he had burglarized a
habitation. However, at the conclusion of the hearing, the trial court did not grant
the motion to revoke; instead, the trial court amended the terms of the community
supervision order and reset the case “to review progress in six months.”
In December 2012, the State filed a supplemental motion to revoke, alleging
that Jefferson had violated the terms of the trial court’s community supervision
order by committing a robbery in November 2012. In January 2013, the trial court
conducted a hearing on the December 2012 motion; during this hearing, Jefferson
pled “[n]ot true” to the allegation that he committed a robbery in November 2012.
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After hearing testimony from two witnesses and from Jefferson, the trial
court found that Jefferson violated the terms of the community supervision order
by committing a robbery in November 2012. The trial court then revoked its
community supervision order. At the conclusion of the hearing, the trial court
sentenced Jefferson to twenty years in prison. Additionally, the trial court stacked
Jefferson’s sentence in this case, Cause Number 11-12961, which relates to
Jefferson’s conviction for a November 2011 robbery, on Jefferson’s sentence in
Cause Number 12-15402, which relates to Jefferson’s sentence for another crime,
the burglary of a habitation, which occurred in September 2012.
The record reflects that when the trial court conducted a hearing on the
December 2012 motion, the October 2012 motion was still pending. The record
further reflects that at the time the trial court conducted the hearing on the
December 2012 motion, it had received evidence on the State’s October 2012
motion to revoke. In issue two, Jefferson argues the trial court abused its discretion
by basing its decision to revoke on facts first alleged in the December 2012 motion
when it had previously heard evidence of facts that were relevant to the State’s
original motion to revoke.
Jefferson argues that after beginning a hearing and receiving evidence on the
State’s original motion to revoke, article 42.12 of the Texas Code of Criminal
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Procedure prohibited the State from amending its motion to allege new facts. See
Tex. Code. Crim. Proc. Ann. art. 42.12 § 21(b-2) (West Supp. 2012). The relevant
part of article 42.12, section 21(b-2) states:
In a felony case, the state may amend the motion to revoke
community supervision any time up to seven days before the date of
the revocation hearing, after which time the motion may not be
amended except for good cause shown, and in no event may the state
amend the motion after the commencement of taking evidence at the
hearing.
Id.
“The rationale for the rule prohibiting the amendment of a motion after the
taking of evidence is to prevent the State from adding new or different grounds for
revocation as a result of evidence adduced at the hearing on that particular
motion.” Washington v. State, 731 S.W.2d 648, 649 (Tex. App.—Houston [1st
Dist.] 1987, no pet.). The record shows that the October 2012 motion was still
pending and that the trial court had taken evidence concerning it when the State
filed another motion to revoke that alleged facts not alleged in the State’s original
motion. However, the December 2012 motion was not based on any of the
evidence introduced during the hearing of the October 2012 motion. Instead, the
December 2012 motion concerned a new crime that occurred after the trial court
recessed the hearing on the October 2012 motion.
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The State concedes that the State’s October 2012 motion was pending and
had not been dismissed when the trial court held a hearing on the State’s December
2012 motion. According to the State, Jefferson never objected to proceeding on the
allegations about the November 2012 robbery. The State concludes that by failing
to object, Jefferson waived any complaint regarding whether the trial court was
allowed to proceed on facts first alleged in the State’s December 2012 motion.
The rules of error preservation generally require the complaining party to
show that the complaint presented on appeal was first presented to the trial court in
a timely request, objection, or motion, and to show that the trial court ruled on the
request. Tex. R. App. P. 33.1. By failing to object to the hearing on the December
2012 motion or to the State’s filing of the supplemental motion, Jefferson failed to
preserve issue two for review on appeal.1 See Rogers v. State, 640 S.W.2d 248,
263-64 (Tex. Crim. App. 1982) (op. on second reh’g) (noting waiver when trial
counsel fails to object to procedural deficiencies regarding a second hearing
addressing a probation revocation); Burns v. State, 835 S.W.2d 733, 735 (Tex.
App.—Corpus Christi 1992, pet. ref’d) (holding that the appellant waived any error
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While Jefferson cites Crockett v. State, 840 S.W.2d 160 (Tex. App.—
Houston [1st Dist.] 1992, no pet.) as support for his argument, the defendant in
Crockett preserved error by filing two motions to quash the amended motion to
revoke. Id. at 162.
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by failing to object at the beginning of the hearing when the State moved to amend
the motion to revoke). We overrule issue two.
In issue one, relying on his argument that the State was limited to the facts
that had been alleged in the State’s October 2012 motion, Jefferson argues that the
State failed to prove the facts asserted in the State’s original motion to revoke
during the January 2013 hearing. Jefferson is correct that the record of the hearing
that occurred in January 2013 addresses only the facts alleged in the State’s
December 2012 motion. Nevertheless, Jefferson does not argue that the evidence
was insufficient to support the trial court’s finding that he committed the
November 2012 robbery.
The record from the January 2013 hearing demonstrates that the State
presented two witnesses. Both witnesses addressed the November 2012 robbery.
One of the witnesses, the victim of the robbery, picked Jefferson from a photo-
lineup as one of the people who committed the November 2012 armed robbery.
During the hearing, Jefferson testified that he did not know anything about the
November 2012 robbery, but he was not asked anything about the facts alleged in
the State’s original motion to revoke.
In reviewing the testimony before the trial court, the trial court had the
responsibility to judge the credibility of the witnesses and to determine the weight
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to give the evidence admitted during the hearing. Canseco v. State, 199 S.W.3d
437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Viewing the evidence
about the November 2012 robbery in the light most favorable to the trial court’s
ruling, we conclude that the evidence is sufficient to prove, by a preponderance of
the evidence, that Jefferson violated a condition of his community supervision by
committing another crime, a robbery in November 2012. See Rickels v. State, 202
S.W.3d 759, 763-64 (Tex. Crim. App. 2006); Garrett v. State, 619 S.W.2d 172,
174 (Tex. Crim. App. 1981). And, because Jefferson did not object to proceeding
on the facts alleged in the State’s December 2012 motion prior to or before the
hearing began, the trial court was allowed to consider whether the trial court’s
community supervision order had been violated based on the claim that Jefferson
committed the November 2012 robbery. See Tex. R. App. P. 33.1.
We conclude the evidence before the trial court allowed the trial court to
reasonably find, by a preponderance of the evidence, that Jefferson committed a
robbery, violating the terms of the trial court’s community supervision order. See
Rickels, 202 S.W.3d at 763-64. Because the trial court did not abuse its discretion
by revoking its community supervision order and adjudicating Jefferson’s guilt, we
overrule issue one.
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In issue three, Jefferson argues that we should delete the trial court’s
cumulation order. According to Jefferson, his offense in Cause Number 11-12961
and his offense in Cause Number 12-15402 arose from the same criminal episode.
He also asserts that he was prosecuted in the two cause numbers at issue in a single
criminal action.
Jefferson relies on section 3.03 of the Texas Penal Code to support his
argument. Article 42.08 of the Code of Criminal Procedure gives trial courts the
authority to order that sentences run consecutively or concurrently. Tex. Code
Crim. Proc. Ann. art. 42.08 (West Supp. 2012). However, section 3.03(a) of the
Penal Code limits the trial court’s discretion in cumulating sentences by requiring
that a trial court use a concurrent sentence if (1) the defendant is found guilty of
more than one offense arising from the same criminal episode, and (2) the accused
is prosecuted for the offenses in a single criminal action. Tex. Penal Code Ann. §
3.03(a) (West Supp. 2012). To show that he was entitled to concurrent sentences,
Jefferson must establish that the offenses in Cause Number 11-12961 and Cause
Number 12-15402 arose out of the “same criminal episode,” and he must establish
that he was prosecuted in a “single criminal action.” Reese v. State, 305 S.W.3d
882, 885 (Tex. App.—Texarkana 2010, no pet.).
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Jefferson argues that the record shows that the offenses at issue were
prosecuted in a single criminal action. The record reflects that the trial judge called
each case separately, took the pleas of “[n]ot true” separately, revoked the
community supervision orders separately, and sentenced Jefferson separately in
each case. See Ex parte Pharr, 897 S.W.2d 795, 796 (Tex. Crim. App. 1995)
(concluding that guilty pleas that followed one another but that were adjudicated
separately did not constitute a single criminal action).
Because the record shows the community supervision orders in the causes at
issue were revoked separately and shows the trial court sentenced Jefferson
separately in each cause, the record does not support Jefferson’s claim that the two
offenses were prosecuted in a single criminal action. We conclude the trial court
did not abuse its discretion in cumulating Jefferson’s sentences. See Reese, 305
S.W.3d at 884-85. We overrule issue three. Having overruled all of Jefferson’s
issues, we affirm the trial court’s judgment.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on September 16, 2013
Opinion Delivered October 16, 2013
Do Not Publish
Before McKeithen, C.J., Kreger, and Horton, JJ.
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