Darian Christopher Lee Austin v. the State of Texas ( 2024 )


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  •                     In the
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    No. 06-24-00064-CR
    DARIAN CHRISTOPHER LEE AUSTIN, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 202nd District Court
    Bowie County, Texas
    Trial Court No. 19F1099-202
    Before Stevens, C.J., van Cleef and Rambin, JJ.
    Memorandum Opinion by Justice van Cleef
    MEMORANDUM OPINION
    The 202nd Judicial District Court of Bowie County adjudicated Darian Christopher Lee
    Austin’s guilt for unauthorized use of a motor vehicle, sentenced him to twenty-four months’
    confinement in state jail, and ordered him to pay a $1,000.00 fine. On appeal, Austin does not
    challenge the evidence supporting the trial court’s decision to adjudicate his guilt. Instead, he
    complains (1) that he lacked notice of the allegations against him at the adjudication hearing and
    (2) that the judgment fails to specify which allegations the trial court found true.
    Even assuming Austin preserved his notice issue for our review, we find his first
    complaint meritless since the State’s amended motion to adjudicate guilt clearly set forth the
    alleged violations of Austin’s deferred adjudication community supervision.            Because the
    judgment specified that the trial court found all the State’s allegations true, we also find Austin’s
    second complaint meritless. Even so, we will modify the trial court’s judgment to reflect that
    Austin’s guilt was adjudicated based on the State’s amended motion instead of its original
    motion. As modified, we affirm the trial court’s judgment.
    I.       The Record Reflects that Austin’s Two Points of Error Are Meritless
    A plain reading of the appellate record shows that Austin’s two points of error have no
    merit.
    A.     Factual Background
    Austin pled guilty to unauthorized use of a motor vehicle, a state jail felony. See TEX.
    PENAL CODE ANN. § 31.07. Pursuant to a plea agreement with the State, in November 2019, the
    trial court placed Austin on deferred adjudication community supervision for five years and
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    ordered him to pay a $1,000.00 fine. In December 2019, the State filed a motion to proceed with
    an adjudication of Austin’s guilt, which alleged that he violated the terms and conditions of his
    deferred adjudication community supervision by committing the offense of burglary of a
    building. The motion remained pending until December 2023, when the State filed an amended
    motion to adjudicate guilt that incorporated the allegation that Austin had committed burglary.
    The amended motion also alleged that Austin violated the terms and conditions of his community
    supervision four other ways by, among other things, failing to report to his community
    supervision officer from January 2020 until November 2023 and failing to complete his
    community service restitution.
    Hannah McLelland, Austin’s community supervision officer, was the only witness at the
    adjudication hearing. She testified that Austin failed to report to her from January 2020 until
    November 2023. McLelland also testified that Austin failed to perform any community service.
    After finding the State’s allegations true, the trial court revoked Austin’s community supervision,
    adjudicated his guilt, sentenced him to twenty-four months’ confinement in state jail, and
    ordered him to pay a $1,000.00 fine. 1
    B.       Austin Had Notice of the State’s Allegations
    The clerk’s record shows that the State filed its amended motion, which alleged that
    Austin violated the terms and conditions of his community supervision in five separate ways.
    Austin was represented by counsel and does not complain that he did not receive the State’s
    1
    The trial court granted the State’s motion in open court. When asked which allegations it was finding true, the trial
    court discussed its findings on three of the five allegations but did not enter a not true finding on the other two
    allegations. The judgment reflects that the trial court found all five of the allegations in the State’s amended motion
    true. Austin does not challenge the evidence supporting any of the allegations in his brief.
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    amended motion. Instead, Austin complains of lack of notice because neither “[t]he Court, nor
    the State, offered to read the Motion to Appellant at the beginning of the hearing on the Motion,
    therefore not putting Appellant on proper notice of the allegations for his defense.” Austin cites
    nothing to support his position that something other than the State’s amended notice was
    required to provide him with ample notice of the State’s allegations against him at the
    adjudication hearing.
    Austin did not raise any notice issue before the trial court. See TEX. R. APP. P. 33.1
    (discussing what is required to preserve error). Even assuming that Austin’s point is somehow
    preserved, it is meritless since Austin had notice of the State’s amended motion to adjudicate
    guilt, which set forth Austin’s violations of the terms of his community supervision in detail. See
    Cunningham v. State, 
    673 S.W.3d 280
    , 285 (Tex. App.—Texarkana 2023, no pet.). As a result,
    we overrule Austin’s first point of error.
    C.      The Judgment Specified Which Allegations the Trial Court Found True
    Austin argues that the trial court’s judgment does not state which of the State’s
    allegations were found true. We disagree.
    The trial court’s judgment states the following:
    After hearing and considering the evidence presented by both sides, the
    Court FINDS THE FOLLOWING: . . . While on deferred adjudication community
    supervision, Defendant violated the conditions of community supervision . . . as
    follows:
    1.      Defendant shall commit no offense against the laws of this or any State of
    the United States or any other Country; to wit: defendant committed the offense
    of Burglary of Building on or about November 28, 2019, in the County of Bowie,
    State of Texas.
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    2.      Defendant shall commit no offense against the laws of this or any State of
    the United States or any other Country; to wit: defendant committed the offense
    of Failure to Identify Fugitive Intent Give False Info on or about November 28,
    2023, in the County of Dallas, State of Texas.
    3.     Offender failed to report to the Community Supervision Officer on a
    monthly basis or as otherwise directed by the Supervision Officer in charge of the
    case; to wit: defendant failed to report for the months of January 2020-
    November-2023.
    4.      Offender failed to perform 240.00 hours of Community Service
    Restitution at a governmental, charitable, or non-profit organization as assigned
    by the Community Supervision Officer in charge of the case, at a rate of no less
    than eight hours per month, beginning within thirty (30) days of the date placed
    on supervision, to wit: delinquent 240.00.
    5.      Defendant shall pay his fine, if one is assessed, and the costs of Court, in
    one or several sums, and make restitution in any sum the Court shall determine; to
    wit: $268.00 court costs, $1,000.00 fine, and owes a balance of $1,268.00.
    Because the trial court’s judgment specified that it found all five of the State’s allegations
    true, we overrule Austin’s second point of error as meritless.
    II.      We Modify the Judgment to Show that Adjudication Was Based on the State’s
    Amended Motion
    The trial court’s judgment stated, “Defendant violated the conditions of community
    supervision, as set out in the State’s ORIGINAL Motion to Adjudicate Guilt.” Austin notes that
    the trial court’s judgment lists the allegations in the State’s amended motion to adjudicate guilt
    but mistakenly states that the judgment is based on the original motion. 2 “This Court has the
    power to correct and modify the judgment of the trial court for accuracy when the necessary data
    and information are part of the record.” Anthony v. State, 
    531 S.W.3d 739
    , 743 (Tex. App.—
    2
    Without any supporting authority, Austin represents, in conclusory manner, that the trial court’s judgment is void
    because it represented that adjudication was based on the original motion instead of the amended motion to
    adjudicate guilt. Because this clerical error is corrected by modification, nothing suggests that the judgment is void.
    5
    Texarkana 2016, no pet.) (citing TEX. R. APP. P. 43.2(b)); Bigley v. State, 
    865 S.W.2d 26
    , 27
    (Tex. Crim. App. 1993); Asberry v. State, 
    813 S.W.2d 526
    , 529 (Tex. App.—Dallas 1991, pet.
    ref’d)). Because the reporter’s record clearly shows that the trial court’s judgment was based on
    the State’s amended motion, we will modify the trial court’s judgment to reflect that fact.
    III.   Conclusion
    We modify the trial court’s judgment by replacing the phrase indicating that the
    revocation was based on the State’s original motion with the following phrase: “Defendant
    violated the conditions of community supervision, as set out in the State’s AMENDED Motion
    to Adjudicate Guilt.” As modified, we affirm the trial court’s judgment.
    Charles van Cleef
    Justice
    Date Submitted:       September 10, 2024
    Date Decided:         September 25, 2024
    Do Not Publish
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Document Info

Docket Number: 06-24-00064-CR

Filed Date: 9/25/2024

Precedential Status: Precedential

Modified Date: 9/25/2024