Sequeasia Turner v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00072-CR
SEQUEASIA TURNER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Sequeasia Turner appeals the trial court’s judgment revoking her
community supervision. Turner pleaded guilty to the offense of forgery—
possessing a check with intent to pass. On August 14, 2006, the trial court
placed Turner on two years’ deferred adjudication community supervision. After
the trial court extended her community supervision on multiple occasions, the
State filed a petition to proceed to adjudication on November 30, 2009. The trial
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See Tex. R. App. P. 47.4.
court adjudged Turner guilty and sentenced her to twelve months’ confinement in
the state jail.
In two points, Turner asserts that the trial court lacked jurisdiction to revoke
her community supervision and that the trial court’s judgment incorrectly reflects
that she pleaded “True” to all paragraphs of the State’s petition to proceed to
adjudication when in fact she only pleaded “True” to paragraphs three and seven.
We will modify the trial court’s judgment and affirm it as modified.
The facts underlying this case are not in dispute. On August 14, 2006, the
State charged Turner with forgery, to wit: possession of a check with intent to
pass. See Tex. Penal Code Ann. § 32.21(d) (Vernon 2009). Turner waived her
right to a jury trial and pleaded guilty, and the trial court placed her on two years’
deferred adjudication community supervision.
The trial court later extended her community supervision on three separate
occasions. Regarding the first extension, on July 8, 2008, the trial court
extended her community supervision one year beginning August 13, 2008. The
July 8 supplement reflects that “[i]f all fees and community service hours are
complete and no further violations occur, the court will release” Turner from
further supervision. The trial court next extended Turner’s community
supervision on June 10, 2009, for one month beginning August 12, 2009. This
order reflected that Turner was required to “re-enroll and successfully complete”
outpatient treatment. The trial court again extended Turner’s community
supervision on August 31, 2009, for three months, with the extension to begin
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September 11, 2009. This final extension order expressed that Turner “[m]ay be
released early from probation once all remaining conditions are complete and
there are no further violations.”
The State filed its petition to proceed to adjudication on November 30,
2009. On February 5, 2010, the trial court conducted a hearing on the State’s
petition. Turner pleaded “Not True” to paragraphs one, two, five, and six, but
pleaded “True” to paragraphs three and seven.2 After the hearing, the trial court
found “True” the allegations in paragraphs one, two, three, five, and seven. The
trial court found “Not True” the allegations in paragraph six. The trial court
adjudicated Turner guilty, revoked Turner’s community supervision, and
sentenced her to twelve months’ confinement in the State Jail Division. Although
the copy of the State’s petition in the clerk’s record, the certificate of proceedings,
and the reporter’s record of the revocation hearing all reflect Turner’s actual
pleas regarding the paragraphs in the State’s petition, the “Judgment
Adjudicating Guilt” states only that Turner pleaded “True” to the State’s motion to
adjudicate. This appeal followed.
In her first point, Turner asserts that we should modify the judgment to
reflect that she pleaded “Not True” to paragraphs one, two, five, and six of the
State’s petition to proceed to adjudication, and “True” to paragraphs three and
seven. We agree.
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The petition did not have a paragraph four.
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Rule 43.2 of the rules of appellate procedure provides that a court of
appeals may modify the trial court’s judgment and affirm it as modified. Tex. R.
App. P. 43.2(b). When an appellate court has the necessary data and evidence
before it for modification, the judgment and sentence may be modified on appeal.
Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986); see Barecky v.
State, 639 S.W.2d 943, 945 (Tex. Crim. App. [Panel Op.] 1982) (holding that
when an appellate court has the same information for modifying the judgment as
the trial court would have were the judgment reversed or the appeal dismissed,
the judgment will be modified on appeal); Jordan v. State, 552 S.W.2d 478, 479
(Tex. Crim. App. 1977) (same); Nelson v. State, 149 S.W.3d 206, 213 (Tex.
App.—Fort Worth 2004, no pet.) (holding that an appellate court may modify a
trial court judgment to make the judgment congruent with the record).
It is clear from the record that Turner pleaded “True” only to paragraphs
three and seven of the State’s petition to proceed to adjudication. Accordingly,
we sustain Turner’s first point and modify the trial court’s judgment adjudicating
guilt to reflect that Turner pleaded “True” to paragraphs three and seven of the
State’s petition and “Not True” to paragraphs one, two, five, and six of the State’s
petition.
In her second point, despite the record reflecting that Turner violated the
terms of her community supervision each time prior to the trial court extending it,
Turner argues that the trial court failed to demonstrate that it had “good cause” to
extend her community supervision. Turner argues that without “good cause,” the
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trial court could not have extended her probation and that, thus, by the time the
State proceeded to adjudication, the trial court lacked jurisdiction to revoke. The
State counters that Turner’s complaint is improperly based on a statute that does
not apply to her state jail felony; rather, the State argues that Turner’s “reliance
upon [Texas Code of Criminal Procedure] art. 42.12, § 22(c) is misplaced as
42.12, § 15(b) is the controlling provision.” We agree with the State.
The trial court placed Turner on deferred adjudication for a state jail felony.
But Turner cites Texas Code of Criminal Procedure 42.12, section 22(c) for the
proposition that the trial court was required to show “good cause” for its
extending her community supervision. As the State points out, however, the
governing provision for a state jail felony like Turner’s is Texas Code of Criminal
Procedure 42.12 section 15(b), not section 22(c). Compare Tex. Code Crim.
Proc. Ann. art. 42.12, § 22(c) (Vernon Supp. 2010) with Tex. Code Crim. Proc.
Ann. art. 42.12, § 15(b) (Vernon Supp. 2010).
Texas Code of Criminal Procedure article 42.12, section 15(b) provides
that “[a] judge may extend a period of community supervision under this section
at any time during the period of community supervision, or if a motion for
revocation of community supervision is filed before the period of community
supervision ends, before the first anniversary of the expiration of the period of
community supervision.” Id. Here, Turner is simply mistaken that the trial court
required a showing of “good cause” and that without such a showing, the trial
court could not have extended her community supervision and thus ultimately
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lacked jurisdiction to revoke it. See Mayfield v. State, 167 S.W.3d 585, 586 (Tex.
App.—Beaumont 2005, no pet.) (discussing trial court’s power to extend state jail
felony community supervision under section 15(b)). The evidence in the record
does not show that the trial court erred in its application of the governing statute.
Therefore, we overrule Turner’s second point.
Having sustained Turner’s first point, we order the judgment modified to
reflect that Turner pleaded “Not True” to paragraphs one, two, five, and six of the
State’s petition to proceed to adjudication and “True” to paragraphs three and
seven of the State’s petition. Having overruled Turner’s second point, we affirm
the trial court’s judgment as modified.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 5, 2011
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