Glen Latel Powe A/K/A Glen Powe v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00356-CR
NO. 02-12-00357-CR
GLEN LATEL POWE A/K/A GLEN APPELLANT
POWE
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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OPINION
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In May 2011, Appellant Glen Latel Powe pled guilty to aggravated robbery
and robbery, and the trial court placed him on deferred adjudication community
supervision. A little more than a year later, in each case, the trial court found ten
allegations in the State’s petition to proceed to adjudication true, and then,
following Appellant’s agreement with the State, revoked his deferred adjudication
community supervision, convicted him of aggravated robbery and robbery, and
sentenced him to forty years’ confinement and twenty years’ confinement
respectively, with the sentences running concurrently. Appellant brings two
issues on appeal, arguing (1) that the trial court abused its discretion by finding
true two allegations that he had committed deadly conduct and (2) that his
punishment plea was not voluntary and the trial court therefore should have
withdrawn his plea at punishment sua sponte. Because the trial court did not
abuse its discretion by finding at least one allegation in each petition to proceed
to adjudication true and because the trial court did not err by failing to sua sponte
withdraw Appellant’s plea at the punishment hearing, we affirm the trial court’s
judgments.
Petition to Proceed to Adjudication
The petition to proceed to adjudication in each case alleged eleven
violations of the terms and conditions of Appellant’s deferred adjudication
community supervision. The State abandoned the allegation of failure to report.
Appellant argues that the trial court abused its discretion by finding allegations
number three and five true. As the State points out, Appellant does not
challenge the sufficiency of the evidence to support the findings of true regarding
the remaining eight allegations.
An appellate court reviews an order to proceed to adjudication in the same
manner as a decision revoking “straight” or regular community supervision. 1 An
1
Tex Code Crim. Proc. Ann. art. 42.12 § 5(b) (West Supp. 2013).
2
appellate court reviews an order revoking community supervision for an abuse of
discretion. 2 In a revocation hearing, the State must prove by a preponderance of
the evidence that the defendant violated the terms and conditions of community
supervision as alleged in the petition to revoke. 3 Appellant concedes in his brief
that “there was sufficient evidence to substantiate the adjudication on [grounds
other than those alleged in allegations three and five].” We agree. Proof of a
violation of a single condition is sufficient to support a trial court’s decision to
revoke probation. 4
But Appellant also summarily argues that “the deadly conduct finding[s] [on
allegations three and five] most likely had some effect” on his punishment. In
light of the fact that the uncontested allegations include
• three counts of aggravated assault, two allegedly committed against the
complainants named in the challenged allegations and one that Appellant
allegedly committed by shooting a third complainant;
• deadly conduct (by shooting a gun) that Appellant allegedly committed
against that third complainant;
2
Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).
3
Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).
4
Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. 1978); see
Gobell v. State, 528 S.W.2d 223, 224 (Tex. Crim. App. 1975) (holding revocation
proper because even if his contentions were correct, Gobell’s revocation was
based on two offenses and he challenged only one); Ross v. State, 523 S.W.2d
402, 404 (Tex. Crim. App. 1975) (holding State’s allegation of failure to report to
probation officer was sufficient to revoke despite any showing of deficiency in the
other two violations alleged in the motion to revoke), overruled on other grounds
by Henson v. State, 407 S.W.3d 764, 768 & n.17 (Tex. Crim. App. 2013), cert.
denied, 134 S. Ct. 934 (2014).
3
• aggravated robbery that Appellant allegedly committed against a fourth
complainant;
• aggravated robbery (with a gun) and robbery causing bodily injury that
Appellant allegedly committed against a fifth complainant; and
• possessing a firearm,
it is difficult to understand how two additional allegations of deadly conduct by
shooting had any perceptible additional negative influence on the sentences the
trial court imposed. Additionally, the sentences the trial court imposed were the
sentences agreed upon by the State and Appellant.
Given the eight unchallenged “true” findings, we hold that the trial court did
not abuse its discretion by granting the State’s petitions to proceed to
adjudication. We overrule Appellant’s first issue.
Punishment Plea
After the trial court found the ten live allegations in the petitions to proceed
to adjudication true, Appellant and the State entered into an agreement whereby
(1) he would plead guilty to two new cases, trial court cause numbers 1271018D
and 1270995D, alleged as violations of terms and conditions of his community
supervision in the cases now before this court, (2) his punishment in those two
new cases would be fifteen years’ confinement each, (3) his punishment in the
aggravated robbery and robbery before us would be forty years’ and twenty
years’ confinement respectively, and (4) the four sentences would run
concurrently. The trial court followed the agreement, adjudicated Appellant guilty
of all four cases, and sentenced him in accordance with the agreement.
4
After Appellant had been convicted and sentenced in all four cases and
was serving his sentences, he sent two pro se letters to the trial court specifically
complaining of the forty-year sentence he received for the aggravated robbery
before us and generally complaining that his plea was involuntary. He mentioned
wanting to appeal four times in the two short documents. He did not mention a
motion for new trial or even a “new trial.” The trial court treated Appellant’s
letters as a pro se notice of appeal.
Appellant appears to argue in his brief that his pleas of guilty in the two
additional cases were involuntary and that the trial court should have sua sponte
(1) withdrawn his guilty pleas in those cases, (2) voided the punishment
agreement in the cases before us, and (3) given him a new trial on punishment.
This court has already dismissed the appeals in the two additional plea-
bargained cases, and mandate has issued. 5 We address those cases only as
they relate to Appellant’s suggestion that his pleas in those cases affect his
punishment agreement in the two revocation cases now on appeal.
Appellant’s argument fails for multiple reasons. In his letters, Appellant did
not ask the trial court to withdraw his pleas of guilty and did not ask for a new trial
in the additional two cases or in the cases now before us. When the trial court
received the letters, the trial court had already pronounced sentence in all four
5
See Powe v. State, Nos. 02-12-00358-CR, 02-12-00359-CR, 2012 WL
4815535, at *1 (Tex. App.—Fort Worth Oct. 11, 2012, no pet.) (mem. op., not
designated for publication).
5
cases, and Appellant was already serving each sentence. The trial court
therefore had no vehicle for withdrawing the guilty pleas in the two additional
cases or for vacating the related sentences in the cases before us. A trial court
cannot grant a new trial on its own motion. 6 Only a defendant can request and
receive a new trial in a criminal case. 7
Nor, even if we were to construe Appellant’s letters as a motion for new
trial, are the bare assertions contained in them sufficient to create a record
supporting involuntariness where none exists in the appellate record before us.
We overrule Appellant’s second issue.
Conclusion
Having overruled Appellant’s two issues, we affirm the trial court’s
judgments.
6
See Tex. R. App. P. 21.1, 21.4; Zaragosa v. State, 588 S.W.2d 322, 326–
27 (Tex. Crim. App. 1979); Dunn v. State, 176 S.W.3d 880, 886–87 (Tex. App.—
Fort Worth 2005, no pet.); Harris v. State, 958 S.W.2d 292, 293 (Tex. App.—Fort
Worth 1997, pet. ref’d); see also State v. Aguilera, 165 S.W.3d 695, 698 n.9
(Tex. Crim. App. 2005).
7
See Tex. R. App. P. 21.1, 21.4; Zaragosa, 588 S.W.2d at 326–27; Dunn,
176 S.W.3d at 885.
6
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
PUBLISH
DELIVERED: May 22, 2014
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