Cynthia Ann Barfield v. State

NUMBER 13-98-269-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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CYNTHIA BARFIELD,

Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 197th District Court of Cameron County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Yañez and Chavez

Opinion by Justice Yañez

Cynthia Barfield, as part of a plea bargain, pled guilty to forgery in February of 1990, and was placed on probation for nine years. Barfield signed a written waiver and consent to stipulation of testimony, waiver of jury, and plea of guilty to the testimony, which was also signed by her attorney and the prosecuting attorney. This stipulation, however, was not signed by the trial judge. In May of 1995, the State filed a motion to revoke Barfield's probation, alleging that she had failed to report as required by the terms of her probation. On October 1, 1997, the State filed an amended motion to revoke community supervision, alleging that Barfield had committed the offenses of forgery and stealing in Cole County, Missouri, failed to pay fees required by the terms of her probation, and had failed to report to her probation officer for fifty-one separate months from March 1991, through May 1995. On October 8, 1997, following a hearing, the trial judge revoked Barfield's probation and sentenced her to seven years in the Texas Department of Criminal Justice, Institutional Division. The trial court issued findings that Barfield's probation was revoked because of her failure to report and her commission of the crime of forgery in Missouri. We affirm.

Barfield's first issue challenges her original conviction. The general rule is that the validity of an original conviction cannot be challenged on appeal from a revocation order. Whetstone v. State, 786 S.W.2d 361, 363 (Tex. Crim. App. 1990)(citing Burrel v. State, 492 S.W.2d 482 (Tex. Crim. App. 1973); see also Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999)(noting general rule applicable in regular supervision and applying it in the context of deferred adjudication)). The original conviction can be challenged, however, if there was fundamental error committed in obtaining the original conviction. Dinnery v. State, 592 S.W.2d 343, 350 (Tex. Crim. App. [Panel Op.] 1980).

Barfield argues that the error of the trial judge in not signing her stipulation to the evidence in her original trial requires that the original conviction be overturned and the cause be remanded for a new trial. See Tex. Crim. Proc. Code Ann. art. 1.15 (Vernon Supp. 2000). The failure of a trial judge to sign a stipulation to the evidence is trial error, not a fundamental error. McClain v. State, 730 S.W.2d 739, 743 (Tex. Crim. App. 1987); Camacho v. State, 968 S.W.2d 388, 391 (Tex. App.--Corpus Christi 1997, no pet.). Because the failure of the judge to sign the stipulations is not fundamental error, it cannot be raised to attack the original conviction on appeal of a revocation order. See Whetstone, 786 S.W.2d at 363; Burns v. State, 832 S.W.2d 695, 696 (Tex. App.--Corpus Christi 1992, no pet.). We overrule issue number one.

In her second issue on appeal, Barfield argues that the trial court erred in not quashing the motion to revoke. Barfield contends that the motion to revoke probation was not specific as to what months she had failed to pay the fees required by the terms of her probation. According to Barfield, the lack of specificity prevented her from formulating a defense to the allegations of non-payment. The test in determining whether reversible error has occurred when denying a motion to quash a motion to revoke probation is the same test used to determine if an indictment is sufficient:

we must first decide whether the motion to revoke lacked some requisite item of notice, and if so, we next decide whether in the context of the case this had an impact on the defendant's ability to prepare a defense, and finally, the extent of any such impact. In making these determinations, the entire record may be reviewed for prejudice to the defendant's substantial rights.

Labelle v. State, 720 S.W.2d 101, 108 (Tex. Crim. App. 1986). The trial court's findings in the instant case show that Barfield's probation was revoked for failure to report and the commission of the crime of forgery. The court did not revoke probation because of any failure to pay the required fees. Even were Barfield completely unable to defend against the allegation that she failed to pay her fees, there was no prejudice to her. Issue number two is overruled.

In her third issue, Barfield argues that the trial court erred in revoking her probation because there was no evidence to support a finding that she failed to report. This Court has discussed the power of the trial court in dealing with revocation of probation, stating that the decision to revoke probation:

rests within the discretion of the trial court. A single violation of a probation condition is sufficient to support the trial court's decision to revoke probation. The burden of proof in a probation revocation is measured by a preponderance of the evidence. Appellate review of evidence presented at a revocation hearing is in the light most favorable to the trial court's decision.

Herrera v. State, 951 S.W.2d 197, 199 (Tex. App.--Corpus Christi 1997, no pet.)(citations omitted).

The State produced as a witness Plutarco Loredo, the community supervision officer to whom Barfield was assigned. On direct examination and again on cross-examination, Loredo stated that he had never met Barfield and that she had never reported to his office. The terms of Barfield's probation required monthly reports. With Loredo's testimony, the State met its burden to show that Barfield violated the monthly reporting condition of her probation. Therefore, the trial court did not abuse its discretion in revoking Barfield's probation. Point of error number three is overruled.

Because a preponderance of the evidence shows that Barfield violated her reporting requirement, the trial court was within its discretion when it ordered Barfield's probation revoked. Therefore, it is unnecessary for us to consider Barfield's remaining issues. Tex. R. App. P. 47.1.

The judgment of the trial court is AFFIRMED.

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LINDA REYNA YAÑEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 15^th day of June, 2000.