Jason Anthony Hill v. State

Affirmed and Memorandum Opinion filed December 8, 2009. In The Fourteenth Court of Appeals ___________________ NO. 14-09-00003-CR ___________________ Jason Anthony Hill, Appellant V. The State of Texas, Appellee On Appeal from the 268th Judicial District Court Fort Bend County, Texas Trial Court Cause No. 43,079 MEMORANDUM OPINION This is an appeal from a judgment revoking probation. Appellant, Jason Anthony Hill, entered a plea of “true” to the allegations in the State’s motion to revoke probation and the trial court sentenced him to six years’ confinement in the Texas Department of Criminal Justice, Institutional Division. In two issues, appellant contends the trial court erred by (1) revoking his probation because the evidence was insufficient to support the trial court’s findings, and (2) assessing a punishment not authorized by law. We affirm. Factual and Procedural Background On October 6, 2006, appellant entered a plea of guilty to the offense of aggravated assault. The trial court assessed punishment at ten years of community supervision. Appellant was originally indicted for aggravated assault with a deadly weapon, but pursuant to a plea bargain, appellant entered a plea of guilty to aggravated assault without the deadly weapon finding.[1] On August 1, 2008, the State filed a motion to revoke appellant’s probation, alleging, inter alia, appellant violated conditions of his probation by testing positive for drug use and failing to report in person to the Fort Bend County Community Supervision and Corrections Department for the months of January 2007, April 2008, and May 2008. Appellant entered a plea of “true” to the allegations in the motion. After a hearing on the motion, the trial court found the allegations in the State’s motion to be true and sentenced appellant to six years’ confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant timely filed this appeal. Discussion In his first issue, appellant contends that despite entering a plea of true to all allegations in the State’s motion to revoke, the evidence at the hearing was not sufficient to support the trial court’s finding that the allegations were true. Appellant claims that because he was not asked about and did not admit to the underlying offense, or the allegations in the State’s motion to revoke, the evidence is insufficient. In his second issue, appellant contends the punishment imposed is not authorized by law. Appellant argues because the judgment revoking probation lists the underlying offense as aggravated assault with a deadly weapon and the judgment imposing probation lists the underlying offense as aggravated assault without a deadly weapon finding, his original sentence of probation is void. I. Did the trial court err in revoking appellant’s probation? A. Standard of Review In reviewing a probation revocation, we examine the evidence in the light most favorable to the trial court’s findings to determine whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493–94 (Tex. Crim. App. 1984). The State must prove, by a preponderance of the evidence, that appellant violated the conditions of his probation to succeed on a motion to revoke probation. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The State need not prove every violation alleged; a single violation of a probation condition is sufficient to support the trial court’s decision to revoke probation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). B. Analysis It is well settled law in Texas that the sufficiency of the evidence cannot be challenged in the face of a plea of “true.” See Jiminez v. State, 552 S.W.2d 469, 472 (Tex. Crim. App. 1977) (holding a plea of “true” is alone sufficient to support revocation). By entering a plea of “true,” appellant cannot challenge the sufficiency of the evidence and has provided the proof necessary to uphold the trial court’s revocation of his probation. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979). It is undisputed appellant entered a plea of “true” to the allegations in the State’s motion to revoke probation. Accordingly, appellant’s first issue is overruled. II. Did the trial court err by assessing a punishment not authorized by law? In his second issue, appellant contends his sentence is void because he received community supervision for punishment of an offense that is listed under the Code of Criminal Procedure article 42.12, section 3g, which restricts a trial court’s ability to assess probation as a sentencing option. See Code Crim. Proc. Ann. art. 42.12 § 3g.(a)(2) (Vernon 2006) (providing that community supervision does not apply to offenses where a deadly weapon was used or exhibited during the commission of a felony offense). Specifically, he claims because he pleaded guilty to the offense of aggravated assault with a deadly weapon, a 3g offense, the trial court was prohibited from probating appellant’s sentence. The problem here is that the judgment granting appellant community supervision lists the underlying offense as aggravated assault without a deadly weapon finding. Appellant was indicted for aggravated assault with a deadly weapon, a 3g offense. Id. Pursuant to a plea bargain, the prosecutor dropped the deadly weapon finding, making it possible for the trial court to grant appellant community supervision. Code Crim. Proc. Ann. art. 42.12 § 3(a) (Vernon 2006). Aggravated assault without a deadly weapon finding is not a 3g offense. See Code Crim. Proc. Ann. art. 42.12 § 3g.(a) (Vernon 2006). However, the judgment revoking appellant’s probation lists the underlying offense as aggravated assault with a deadly weapon. This problem was rectified when a judgment nunc pro tunc was entered modifying the judgment revoking probation to reflect the underlying offense as aggravated assault without the deadly weapon finding. A trial court has authority to correct mistakes of errors in judgment or orders after the expiration of the court’s plenary power via entry of a judgment nunc pro tunc. Martinez v. State, 194 S.W.3d 699, 703 n.6 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994)). The force and effect of a judgment nunc pro tunc relates back to the date the original judgment was pronounced. Martinez, 194 S.W.3d at 703 n.6. Because the judgment revoking probation now reflects the underlying offense as aggravated assault without a deadly weapon finding, appellant’s second issue is without merit. Accordingly, appellant’s second issue is overruled. Conclusion Having overruled both of appellant’s issues on appeal, we affirm the judgment of the trial court. /s/ John S. Anderson Justice Panel consists of Chief Justice Hedges and Justices Anderson and Boyce. Do Not Publish — Tex. R. App. P. 47.2(b). [1] As will be discussed below, the trial court was prohibited from granting appellant probation/community supervision where there was a deadly weapon finding. See Code Crim. Proc. Ann. art. 42.12 § 3g.(a)(2) (Vernon 2006).