James Ray Barrow v. State

NO. 07-06-0117-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 23, 2007
______________________________
JAMES RAY BARROW, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;
NO. B2969-0410; HONORABLE ED SELF, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant James Ray Barrow appeals from a judgment revoking his community
supervision and imposing sentence pursuant to a conviction for assault on a family
member enhanced by a previous assault against a family member. We affirm.
Background
On October 26, 2004, the State indicted appellant for the offense of assault on a
family member committed on October 7th and enhanced by a prior family violence assault
conviction. Appellant was convicted of the prior offense on September 8, 2004. On
December 22, appellant pled guilty to the offense and was sentenced to three years
confinement in the Institutional Division of the Texas Department of Criminal Justice. The
trial court suspended the sentence and placed appellant on community supervision for
three years. Appellant’s terms and conditions of community supervision were later
amended to include treatment for drug or alcohol abuse by confinement in a substance
abuse felony treatment facility as well as attendance and successful completion of its
treatment programs. Subsequently, the State filed a motion to revoke appellant’s
community supervision alleging that appellant failed to successfully complete the program
at the substance abuse felony treatment facility and failed to refrain from the use of
controlled substances. The trial court found that appellant had violated the conditions of
community supervision, revoked the order placing him on community supervision, and
ordered that appellant serve the sentence of three years confinement in the Institutional
Division of the Texas Department of Criminal Justice.
Appellant appeals the order revoking his community supervision contending that the
trial court did not have jurisdiction to find him guilty of the offense, and that the evidence
was factually insufficient to support the trial court’s finding of true to the alleged violations
of community supervision. We affirm.
Court’s Jurisdiction
In general, the validity of a conviction in which the defendant is placed on
community supervision cannot be raised on appeal from a revocation order. See Burrell
v. State, 492 S.W.2d 482, 484 (Tex.Crim.App. 1973). However, a judgment by a court
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without subject matter jurisdiction is void and can be attacked at any time. See Nix v.
State, 65 S.W.3d 664, 667-68 (Tex.Crim.App. 2001) (en banc). Since appellant contends
that the district court lacks subject matter jurisdiction, appellant’s contention fits within the
void judgment exception and, thus, is properly before this court.
Appellant was indicted for an assault on a family member enhanced by a prior family
violence conviction.1 Appellant contends that a prior conviction used for enhancement
purposes must have been final before the commission of the second assault. Since the
two assaults occurred 29 days apart, appellant contends the time for appealing the first
assault had not yet run and, thus, the first assault was not a final conviction and could not
have been used for enhancement purposes. Without a prior conviction of family violence
to enhance the second assault, appellant contends the assault would be a misdemeanor
and the district court would be without jurisdiction. See TEX . CODE CRIM . PROC . ANN . art.
4.05 (Vernon 2005).
A prior conviction for which the time for filing an appeal has not run prior to the
commission of a second offense may be used for enhancement purposes as long as there
is no evidence that an appeal was ever filed. Woolsey v. State, 314 S.W.2d 298, 300
(Tex.Crim.App. 1958) (one day old conviction used for enhancement purposes). When a
prior conviction is used for enhancement purposes, the trial court must be able to
determine the finality of the prior conviction at the time the trial court is charged with
1
Although an assault on a family member is generally a class A misdemeanor, a
second conviction for assault on a family member is considered a third degree felony. See
TEX . PENAL CODE ANN . § 22.01(b)(2) (Vernon Supp. 2006).
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making a decision affected by the enhancement. See Milburn v. State, 201 S.W.3d 749,
752 (Tex.Crim.App. 2006). In this case, the time for filing an appeal on the first conviction
of family violence assault had expired by the time the case was before the trial court on
December 22. See TEX . R. APP. P. 26.2(a). Thus, the trial judge would know, or could
reasonably suppose, “that an appeal or a motion for new trial had not in fact been filed
because the time for filing would have expired.” Id. (citing Jordan v. State, 36 S.W.3d 871,
876 n.35 (Tex.Crim.App. 2001)). Since the finality of the first assault conviction of family
violence was ascertainable at the time the trial court rendered judgment on the second
family violence assault, the second assault on a family member was properly enhanced to
a third degree felony and the district trial court had jurisdiction. Id. at 753. We overrule
appellant’s first issue.
Probation Revocation
A probation revocation proceeding is neither a criminal nor a civil trial, but is rather
an administrative proceeding. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993).
The State must prove by a preponderance of the evidence that a defendant violated the
terms of his community supervision. See id. Our review of an order revoking community
supervision is limited to determining whether the trial court abused its discretion. See
Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984).
In its amended motion to revoke community supervision, the State alleged that
appellant violated his community supervision in that: (1) “the defendant has failed to
successfully complete the Substance Abuse Felony Treatment Facility; TO WIT . . . the
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defendant was unsuccessfully discharged from the Substance Abuse Felony Treatment
Facility Billy Meeks Transition Treatment Center,” and (2) “the defendant [failed] not [to]
use any controlled substances; TO WIT: A urine sample submitted by the defendant . . .
did test positive for cocaine.” Appellant contends that the evidence is factually insufficient
to establish either violation.
The trial court had evidence that appellant’s urine tested positive for cocaine while
on community supervision. Evidence of a positive urine sample is sufficient evidence to
establish that appellant has failed to refrain from use of controlled substances as required
by community supervision. See Stevens v. State, 900 S.W.2d 348, 352
(Tex.App.–Texarkana 1995, pet. ref’d). A single violation of the conditions of community
supervision is sufficient to support a trial court’s revocation of the community supervision
order. Id. Hence, the trial court did not abuse its discretion in finding that appellant had
violated the terms of his community supervision.
Conclusion
For the foregoing reasons, we affirm.
Mackey K. Hancock
Justice
Do not publish.
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