Jesse Lee Diamond v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-17-00099-CR
JESSE LEE DIAMOND, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th District Court
Hunt County, Texas
Trial Court No. 29396
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
After Jesse Lee Diamond had been placed on one-year deferred adjudication community
supervision for unauthorized discharge reckless endangerment,1 the State moved to adjudicate
Diamond’s guilt,2 and the trial court adjudicated Diamond guilty and sentenced him to one year in
county jail.
Diamond appeals the trial court’s judgment of conviction, urging claims that the trial court
erred in accepting his unknowing and involuntary pleas of true to the State’s alleged violations and
that there was insufficient evidence to support the trial court’s findings of true without considering
Diamond’s erroneously accepted pleas. Because (1) the trial court did not err when it accepted
Diamond’s pleas of true and (2) sufficient evidence supports the adjudication of Diamond’s guilt,
we affirm the trial court’s judgment.
At the beginning of the hearing on the State’s amended motion to adjudicate Diamond’s
guilt, defense counsel stated, “Your Honor, I’m looking at a copy of the amended motion to
adjudicate community supervision . . . [and] [a]s to the -- each and every allegation, 1 through 7,
Mr. Diamond pleads true but true with an explanation and/or we believe [he has an] excuse for the
1
See TEX. WATER CODE ANN. § 7.154 (West 2008). Diamond had been charged originally with the offense of
intentional or knowing unauthorized discharge into or adjacent to a water way, but pled to the lesser-included offense
of unauthorized discharge reckless endangerment.
2
In its amended motion, the State alleged that Diamond violated the terms and conditions of his community supervision
by: (1) failing to report to the community supervision department for the months of March, April, May, June, July,
August, September, and October 2016; (2) failing to pay court costs in the amount $285.00, a fine in the amount of
$600.00, and attorney fees in the amount of $2,280.00, at a combined monthly rate of $528.00; (3) failing to pay a
community supervision fee of $60.00 per month for the months of March, April, May, June, July, August, September,
and October 2016; (4) failing to pay the Crime Stoppers’ fee, assessed in the amount of $50.00, within 180 days;
(5) failing to reimburse the community supervision department $10.00 for the cost of urinalysis testing; (6) failing to
report any changes in address, employment, or arrest; and (7) failing to appear in court on October 18, 2016.
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allegations.” After calling Diamond to the stand, trial counsel asked Diamond if he was told he
could have any witnesses to testify on his behalf at the hearing, to which Diamond responded
affirmatively. Trial counsel then asked, “Now, you heard me tell the Judge that you were pleading
true to each one of these but there were explanations and excuse -- or reasons that it happened or
didn’t happen, correct?” Diamond responded, “Yes, sir.” Diamond then admitted that he failed
to report to the community supervision office for the months of March, April, May, June, July,
August, September, and October 2016. He followed his admission by explaining that his
automobile was not working properly. When the State informed the trial court that it would like
to call witnesses if he was going to give explanations, Diamond’s counsel assured the trial court,
“He did plead true, Judge.” The trial court reiterated, “[H]e pled true,” and then asked Diamond
if he was testifying as to the truth of the allegations or if he was “intending to testify as to the
adjudication or as to punishment?” Diamond conceded that he was testifying as to punishment.
The trial court responded, “Then based on the pleas of true by Mr. Diamond, we’ll find those true
and we’ll proceed -- we’ll adjudicate him guilty and proceed with punishment at this point.”
The State proceeded to call Mariah May, who was the community supervision officer who
instigated the motion to adjudicate guilt. The State began, “And, you’ve understood he’s pled true
to these allegations that you’ve alleged in this motion, correct?” To which May responded, “Yes.”
May was asked why she did not believe Diamond was a good candidate for community
supervision. She answered, “Frankly, Mr. Diamond is just not a good candidate for probation. He
has made no contact to reach out to our department as to why he didn’t report.” May continued,
“It appears that Mr. Diamond continues to be arrested for various reasons, although minor. I just
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don’t believe that he is a very good candidate for probation.” At this point in the hearing, the
procedural posture of the case became an issue:
[Defense Counsel]: Judge, I’m going to object. That’s not listed.
THE COURT: That one is not on this motion.
[Defense Counsel]: That’s not listed, Judge, so we would object to any
testimony about that or that he was arrested.
[The State]: Well, Your Honor, we’re in the punishment phase.
THE COURT: We’re not in the punishment phase.
[The State]: I thought we were in the disposition phase because the --
THE COURT: I tried to go to the disposition --
[Defense Counsel]: Yeah.
THE COURT: -- phase and you interrupted me.
[Defense Counsel]: And said you wanted to put her on the stand.
[The State]: Your Honor, I believe what happened is he pled true, you found
the -- he asked -- Mr. Wilkerson asked are we in the disposition phase, you said
yes, so then I said I would like to go first for punishment because it’s the State’s
motion.
THE COURT: And then I adjudicated him guilty, tried to proceed forward,
and you interrupted and said, no, you wanted to not do it that way, you wanted to
start back from the beginning so we were doing that.
[The State]: That’s fine. Okay.
After the State concluded its questioning of May, the trial court asked defense counsel if he would
like to cross-examine May, to which counsel responded he did not. The trial court asked, “No
further questions as to the -- whether or not I adjudicate Mr. Diamond guilty? That[’s] the question
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right now. That’s where we’re at. Do you have anything else you’d like to present?” Diamond
declined to do so. The trial court then stated, “Based on his pleas of true and the brief testimony
by Ms. May, I will adjudicate him guilty of the offenses. We will proceed to punishment to
determine what is appropriate.” The trial court continued hearing punishment evidence and,
subsequently, sentenced Diamond to one year in county jail.
Diamond contends the trial court committed error when it accepted his pleas of true without
establishing that the pleas were made freely, knowingly, and voluntarily. Diamond maintains the
trial court “believe[d] [he] was not pleading true, but instead intended to present defenses to the
allegations.” Diamond continues, “This would explain why there is no discussion regarding the
consequences of a plea of true.” According to Diamond, when he stated that his plea of true would
be accompanied by “legal excuses,” then “logic would dictate that [Diamond] did not understand
that a plea of true would change the hearing into a unitary proceeding regarding punishment.”
Diamond then claims that, without his pleas of true, the State failed to present sufficient evidence
to support the trial court’s finding that Diamond violated the conditions of his community
supervision.
We review a decision to adjudicate guilt in the same manner as we review a decision to
revoke community supervision—for abuse of discretion. Little v. State, 376 S.W.3d 217, 219 (Tex.
App.—Fort Worth 2012, pet. ref’d) (citing Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006)); see In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.—Texarkana 2003, no pet.); see Act of
May 26, 2013, 83d Leg., R.S., ch. 1160, § 1, 2013 Tex. Gen. Laws 2887, 2887, repealed by Act
of May 26, 2015, 84th Leg., R.S., ch. 770, § 3.01, 2015 Tex. Gen. Laws 2321, 2395 (eff. Jan. 1,
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2017). In a revocation hearing, the trial court is the sole trier of the facts and determines the
credibility of the witnesses and the weight given to their testimony. T.R.S., 115 S.W.3d at 321. A
trial court’s decision to revoke community supervision and to proceed to adjudication is examined
in the light most favorable to the trial court’s judgment. Id.
(1) The Trial Court Did Not Err When It Accepted Diamond’s Pleas of True
While the record reveals confusion on the part of all participants in the hearing on the
State’s amended motion to adjudicate, Diamond has failed to provide us with any authority
supporting his proposition that his request to present “excuses” somehow converted his pleas of
true into pleas of not true, thereby potentially changing the procedural posture of the case.
Likewise, Diamond has provided us no authority for his contention that a trial court is required to
undertake an in-depth discussion about the consequences of a plea of true.3 Although the record
reflects that Diamond pled true to the allegations contained in the State’s amended motion and that
the trial court was well within its discretion to accept his pleas of true, we find it unnecessary to
delve into a lengthy discussion of Diamond’s state of mind or the effect, if any, of the procedural
3
Instead, Diamond contends, “Although no particular recitations are required to meet the due process requirements of
a plea of ‘true’ at a revocation hearing, the record is devoid of indications that the plea was entered knowingly and
voluntarily.” He continues, “Therefore, the plea of ‘true’ in this case, entered by Appellant’s trial counsel, does not
meet the minimum due process requirements for a waiver of those rights.”
The record does not support Diamond’s assertion that he did not intend to plead true. First, and as pointed
out by Diamond, trial counsel stated that, as to “each and every allegation, 1 through 7, Mr. Diamond pleads true.” In
addition to counsel’s statements, Diamond conceded that he was pleading true, but that he wanted to offer “excuses”
for his failure to comply with the terms of his community supervision. Moreover, May testified that she understood
that Diamond had pled true to the allegations against him. Contrary to Diamond’s contention that he unknowingly
and involuntarily pled true to violating the terms of his community supervision, the record is clear that he admitted to
the allegations against him and also sought to convince the trial court that his punishment should be reduced because
he had “excuses” for the violations.
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confusion that occurred during the hearing. This is so because, even if Diamond had entered a
plea of not true, the trial court remained within its power to adjudicate Diamond’s guilt.
(2) Sufficient Evidence Supports the Adjudication of Diamond’s Guilt
The State must prove by a preponderance of the evidence that the defendant violated at
least one of the terms and conditions of community supervision. Cobb v. State, 851 S.W.2d 871,
873 (Tex. Crim. App. 1993). If the State fails to meet its burden of proof, the trial court abuses its
discretion in revoking community supervision. Cardona v. State, 665 S.W.2d 492, 493 (Tex.
Crim. App. 1984). Proof by a preponderance of the evidence as to any one of the alleged violations
of the conditions of community supervision is sufficient to support a trial court’s decision to revoke
community supervision. Marsh v. State, 343 S.W.3d 475, 479 (Tex. App.—Texarkana 2011, pet.
ref’d) (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980)). Here,
the State alleged, among other things, that Diamond failed to report to the community supervision
office for the months of March, April, May, June, July, August, September, and October 2016.
Diamond testified at the beginning of the hearing that he did not report during those months,4 and
his admission was corroborated by May’s testimony that “[Diamond] ha[d] made no contact to
reach out to [her] department as to why he didn’t report.” Regardless of the procedural positioning
of the case, based on (1) Diamond’s admissions that “each and every allegation, 1 through 7” were
true, (2) Diamond’s testimony that he failed to report during the months alleged in the State’s
amended motion, and (3) May’s corroboration that Diamond did not report to the department, there
existed sufficient evidence to support the trial court’s finding that Diamond had violated the terms
4
Diamond also indicated that he was aware that he had a right to call witnesses on his behalf, which he did not do.
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of his community supervision. Thus, the trial court did not err when it adjudicated Diamond guilty
and sentenced him to one year in county jail.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 27, 2017
Date Decided: December 8, 2017
Do Not Publish
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