Sherman Dale Anderson v. State

IN THE TENTH COURT OF APPEALS No. 10-07-00294-CR Sherman Dale Anderson, Appellant v. The State of Texas, Appellee From the 18th District Court Johnson County, Texas Trial Court No. F40682 MEMORANDUM Opinion Sherman Dale Anderson appeals the revocation of his community supervision for evading arrest with a vehicle and violation of a protective order. He contends in three issues that: (1) the court abused its discretion by revoking his community supervision because there is insufficient evidence to prove he committed a new offense; (2) the court abused its discretion by failing to reduce his sentence under article 42.12, section 23(a) of the Code of Criminal Procedure; and (3) the judgment does not correctly recite the plea he entered to the allegations of the revocation motion. We will modify the judgment and affirm it as modified. Anderson contends in his first issue that the court abused its discretion by revoking his community supervision because there is insufficient evidence to prove he committed a new offense. The court found that Anderson committed five separate violations of his community supervision.[1] However, Anderson challenges the court’s findings with regard to only one of those five violations. “To obtain reversal for insufficiency of the evidence in a probation revocation case, a defendant must successfully challenge each ground on which the trial court relies, because one sufficient ground supports the trial court’s order.” Sterling v. State, 791 S.W.2d 274, 277 (Tex. App.—Corpus Christi 1990, pet. ref’d) (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980)). Because Anderson challenges the sufficiency of the evidence with respect to only one of the five violations found by the court, we overrule his first issue. See Moore, 605 S.W.2d at 926. Anderson contends in his second issue that the court abused its discretion by failing to reduce his sentence under article 42.12, section 23(a). That statute invests a trial court with discretion upon revocation to impose the original sentence, “or if the judge determines that the best interests of society and the defendant would be served by a shorter term of confinement, reduce the term of confinement originally assessed to any term of confinement not less than the minimum prescribed for the offense.” Tex. Code Crim. Proc. Ann. art. 42.12, § 23(a) (Vernon Supp. 2007). Here, one of the offenses for which Anderson was placed on community supervision was the violation of a protective order by committing an assault on his wife. The State offered evidence at the revocation hearing that he had engaged in several instances of assaultive conduct toward her beginning in August 2006. About a week after being placed on community supervision, Anderson assaulted her again, causing severe injuries, and several months later he assaulted her still another time. Based on this record, we hold that the court did not abuse its discretion by declining to reduce the length of Anderson’s sentence. See Cannon v. State, 537 S.W.2d 31, 32 (Tex. Crim. App. 1976) (no abuse of discretion in refusal to reduce sentence where defendant committed burglary less than a month after being placed on probation for burglary). Thus, we overrule Anderson’s second issue. Anderson contends in his third issue that the judgment does not correctly recite the plea he entered to the allegations of the revocation motion. The State agrees and suggests that the judgment be modified accordingly. The judgment recites in pertinent part that Anderson “waived the reading of the motion to revoke, and, upon being asked by the Court as to how the defendant pleaded, entered a plea of True to the allegations in the motion to revoke.” However, the reporter’s record affirmatively reflects that neither statement is true. Anderson did not waive the reading of the allegations, and he entered a plea of “not true” to them.[2] Article 37.12 of the Code of Criminal Procedure requires a trial court to enter “the proper judgment.” Tex. Code Crim. Proc. Ann. art. 37.12 (Vernon 2006); Edwards v. State, 21 S.W.3d 625, 628 (Tex. App.—Waco 2000, no pet.). Among other things, the judgment must accurately recite “[t]he plea or pleas of the defendant.” Tex. Code Crim. Proc. Ann. art. 42.01, § 1(3) (Vernon 2006); see Edwards, 21 S.W.3d at 628 (addressing recital of deadly weapon finding in judgment). Because the quoted portions of the judgment do not accurately reflect what transpired, we sustain Anderson’s third issue. We modify the judgment to reflect that Anderson did not waive the reading of the revocation motion, that the State read the motion, and that Anderson entered a plea of “Not True” to the allegations. See Edwards, 21 S.W.3d at 628. We affirm the judgment as modified. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed August 13, 2008 Do not publish [CR25] [1] The State alleged seven different violations. [2] The first page of the judgment states that Anderson entered a plea of “Not true,” but the quotation above is from the second page. v. Burge, No. 05-99-01217-CV, 2000 Tex. App. LEXIS 6606, at *6-7 (Tex. App.—Dallas Oct. 2, 2000, no pet.) (not designated for publication). We also note that a previously filed lawsuit by Gordon against TDCJ and UTMB, involving the same allegations, is currently pending in United States District Court for the Southern District of Texas, Houston Division, Civil Action No. H-06-2790. 1 I note that if the State and UTMB had been properly served, appellant has not shown how the trial court would have had jurisdiction over them – in essence a waiver of sovereign immunity.