EDWARD WHITEHEAD v. STATE

No. 01-16-00168-CR.

KEON MARK EDWARD WHITEHEAD, Appellant, v. THE STATE OF TEXAS, Appellee.

Court of Appeals of Texas, First District, Houston.


Attorney(s) appearing for the Case

Amy Dianne Martin , for Keon Whitehead, Appellant.

Kim K. Ogg , Daniel C. McCrory , Patricia McLean , for State of Texas.

Panel consists of Justices Jennings, Higley, and Massengale.


Do not publish. TEX. R. APP. P. 47.2(b).

MEMORANDUM OPINION

TERRY JENNINGS, Justice.

After appellant, Keon Mark Edward Whitehead, without an agreed punishment recommendation from the State, pleaded guilty to the offense of sexual assault,1 the trial court deferred adjudication of his guilt and placed him on community supervision for five years. The State, alleging numerous violations of the conditions of his community supervision, subsequently moved to adjudicate appellant's guilt. After a hearing, the trial court found appellant guilty and assessed his punishment at confinement for ten years. In three issues, appellant contends that the evidence is insufficient to support the trial court's finding that he violated a condition of his community supervision, the trial court erred in adjudicating his guilt based on a violation of a condition not alleged in the State's Original Motion to Adjudicate Guilt, and the trial court's judgment should be modified.

We modify the trial court's judgment and affirm as modified.

Background

On March 17, 2014, the trial court placed appellant on community supervision, subject to certain conditions, including:

Avoid injurious or vicious habits. You are forbidden to use, possess, or consume any controlled substance, dangerous drug, marijuana, alcohol or prescription drug not specifically prescribed to you by lawful prescription. You are forbidden to use, consume, or possess alcoholic beverages.2

On August 19, 2014, the State filed a motion to adjudicate appellant's guilt ("Original Motion to Adjudicate Guilt"), alleging that he had violated numerous conditions of his community supervision, but not the condition forbidding him from using, consuming, or possessing alcohol. On October 6, 2014, per the State's request, the trial court dismissed the Original Motion to Adjudicate Guilt.

On October 5, 2015, the State filed another motion to adjudicate appellant's guilt ("Second Motion to Adjudicate Guilt"), alleging that he had violated numerous conditions of his community supervision, including "using an alcoholic beverage which was evidenced by; the presence of Ethyl Sulfate in a urine sample taken [f]rom [appellant] on July 13, 2015 at the Tarrant County Community Supervision and Corrections Department."

At a hearing on the State's Second Motion to Adjudicate Guilt, Tarrant County Community Supervision Officer J. Sims testified that appellant violated a condition of his community supervision by testing "positive for ethanol" on July 13, 2015.

Appellant similarly testified that he tested positive for alcohol use on July 13, 2015 because he had been "drinking alcohol," even though he knew that he was not supposed to be doing so while on community supervision. He explained that he "got with a friend . . . and [they] ended up having a beer" and then he tested positive for alcohol use.

Standard of Review

Appellate review of an order adjudicating guilt is limited to determining whether the trial court abused its discretion. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2016) ("The determination [to adjudicate guilt] . . . is reviewable in the same manner as a [community-supervision] revocation hearing . . . in which an adjudication of guilt had not been deferred."); Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) ("Appellate review of an order revoking probation is limited to abuse of the trial court's discretion."). The trial court's decision must be supported by a preponderance of the evidence. Rickels, 202 S.W.3d at 763-64. The evidence meets this standard when the greater weight of the credible evidence creates a reasonable belief that a defendant has violated a condition of his community supervision. Id.

We examine the evidence in the light most favorable to the trial court's order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Jones v. State, 787 S.W.2d 96, 97 (Tex. App.-Houston [1st Dist.] 1990, pet. ref'd). As the sole trier of fact, a trial court determines the credibility of witnesses and the weight to be given to their testimony. See Garrett, 619 S.W.2d at 174; Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); Jones, 787 S.W.2d at 97.

Adjudication of Guilt

In his second issue, appellant argues that the trial court erred in adjudicating his guilt because the evidence is insufficient to support a finding that he "failed to `avoid injurious and vicious habits.'"

Proof of a single violation is sufficient to support a revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); Akbar v. State, 190 S.W.3d 119, 123 (Tex. App.-Houston [1st Dist.] 2005, no pet.). Here, Officer Sims testified that appellant tested positive for alcohol use on July 13, 2015. Appellant similarly testified that he drank alcohol with a friend, he knew that he was not supposed to drink alcohol while on community supervision, and he tested positive for alcohol use on July 13, 2015. On appeal, appellant now argues that the evidence is legally insufficient to support the trial court's finding that he violated a condition of his community supervision because a "single instance of drinking a beer is not enough to establish an `injurious or vicious habit[].'" See Garcia v. State, 571 S.W.2d 896, 900 (Tex. Crim. App. 1978) ("[P]roof of a single instance of the use of a drug cannot be characterized as a habit. . . .").

The complete text of appellant's community-supervision condition number two states:

(2) Avoid injurious or vicious habits. You are forbidden to use, possess, or consume any controlled substance, dangerous drug, marijuana, alcohol or prescription drug not specifically prescribed to you by lawful prescription. You are forbidden to use, consume, or possess alcoholic beverages.

And the State's Second Motion to Adjudicate Guilt alleged that appellant violated a condition of his community supervision by:

Failing to avoid injurious or vicious habits, by: using an alcoholic beverage which was evidenced by; the presence of Ethyl Sulfate in a urine sample taken [f]rom [appellant] on July 13, 2015 at the Tarrant County Community Supervision and Corrections Department.

Here, the State, in its Second Motion to Adjudicate Guilt, alleged a violation of the latter portion of appellant's community-supervision condition number two, namely that appellant not use alcohol. In other words, although the State's motion was drafted in terms of failure to "avoid injurious or vicious habits," it also alleged the use of alcohol by appellant, contrary to condition number two of his community supervision. See Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977); Bessard v. State, 464 S.W.3d 427, 428-29 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd) (where defendant argued single use of controlled substance insufficient to prove he violated condition of community supervision related to avoiding harmful and vicious habits, court noted, although State's motion to revoke drafted in terms of failure to avoid injurious or vicious habits, it also alleged use of controlled substance contrary to condition of defendant's community supervision); Kirk v. State, No. 01-99-01184-CR, 2001 WL 279211, at *1-2 (Tex. App.-Houston [1st Dist.] Mar. 22, 2001, no pet.) (not designated for publication) (same); see also Muehr v. State, No. 04-03-00125-CR, 2004 WL 1159131, at *2 (Tex. App.-San Antonio May 26, 2004, no pet.) (same).

While a single use of alcohol may not be enough to constitute a "habit[]," a single use of alcohol is enough to support a finding that appellant violated the condition of his community-supervision forbidding alcohol use. Chacon, 558 S.W.2d at 876; Bessard, 464 S.W.3d at 428-29; Chavana v. State, No. 2-07-290-CR, 2008 WL 2553389, at *2-3 (Tex. App.-Fort Worth June 26, 2008, pet. ref'd) (mem. op., not designated for publication); Muehr, 2004 WL 1159131, at *2; Kirk, 2001 WL 279211, at *1-2; cf. Herrera v. State, No. 04-97-00102-CR, 1997 WL 716569, at *1 (Tex. App.-San Antonio Nov. 19, 1997, no pet.) (not designated for publication) (explaining had State only alleged defendant violated condition of probation by engaging in injurious or vicious habits, single use of cocaine insufficient to support revocation, but where State also alleged defendant "violated [a] condition[] of his probation by `us[ing] a controlled substance'" admission to single instance of cocaine use sufficient to support revocation (third alteration in original)).

In Bessard, our sister court was recently faced with a nearly identical issue as that presented here.3 464 S.W.3d at 428-29. There, the State moved to adjudicate the defendant's guilt based on violations of the conditions of his community supervision. Id. at 428. The complete text of the defendant's community-supervision condition number two stated:

2. Avoid injurious or vicious habits. You are forbidden to use, possess, or consume any controlled substance, dangerous drug, marijuana, alcohol or prescription drug not specifically prescribed to you by lawful prescription. You are forbidden to use, consume, or possess alcoholic beverages.

Id.; see also Kirk, 2001 WL 279211, at *2 (same community-supervision condition). And the State, in its motion to adjudicate guilt, alleged that the defendant violated a condition of his community supervision by:

Failing to avoid injurious or vicious habits to-wit; the Defendant did use a controlled substance, namely PHENCYCLIDINE, which was evidenced by the presence of PHENCYCLIDINE GC/MS in a urine sample taken from [the defendant] on October 23, 2013. . . .

Bessard, 464 S.W.3d at 428; see also Kirk, 2001 WL 279211, at *2 (although State's motion to revoke drafted in terms of failure to avoid injurious and vicious habits, also alleged "the use of a controlled substance contrary to condition two of [defendant]'s community supervision").

On appeal, the defendant argued that the trial court erred in adjudicating his guilt because the evidence was insufficient to support a finding that he had failed to "avoid injurious and vicious habits." Bessard, 464 S.W.3d at 428 (internal quotations omitted); see also Kirk, 2001 WL 279211, at *1. The Fourteenth Court of Appeals, however, disagreed, noting that "[a]lthough a single use of an illegal drug may not be enough to constitute a `habit,' a single use [of phencyclidine was] enough to support a finding that [the defendant] violated [the] condition [of his community supervision] forbidding drug use." Bessard, 464 S.W.3d at 429; see also Herrera, 1997 WL 716569, at *1 ("Had the State alleged that [defendant] violated the conditions of his probation by engaging in injurious or vicious habits, a plea of true to a single use of cocaine may have been insufficient to support the trial court's decision to revoke his probation. But here, the State alleged that [defendant] violated the conditions of his probation by `us[ing] a controlled substance.'" (third alteration in original)). Because the preponderance of the evidence established that the defendant used a controlled substance, namely phencyclidine, on a certain date, in violation of latter portion of defendant's community-supervision condition number two, the appellate court held that the trial court did not err in finding that the defendant violated a condition of his community supervision and adjudicating his guilt. Bessard, 464 S.W.3d at 429; see also Muehr, 2004 WL 1159131, at *2 (trial court did not err in finding defendant violated condition of community supervision, where law enforcement officer testified defendant tested positive for cocaine use once and State's motion to revoke, although "drafted in terms of failure to avoid injurious or vicious habits," "also included allegations referring to [defendant]'s use of a controlled substance, namely cocaine"); Kirk, 2001 WL 279211, at *2 (trial court did not err in finding defendant violated condition of community supervision, where he did not deny positive result of narcotics test and State's motion to revoke alleged "the use of a controlled substance contrary to condition two of [defendant]'s community supervision").

Finally, we recognize, as appellant points out, that the trial court's written judgment adjudicating his guilt states that appellant "violated the terms and conditions of community supervision as set out in the State's . . . Motion to Adjudicate Guilt as follows[:] TECHNICAL VIOLATION-DEFENDANT DID THEN AND THERE VIOLATE TERMS AND CONDITIONS OF COMMUNITY SUPERVISION BY FAILING TO AVOID INJURIOUS OR VICIOUS HABITS[.]" However, here, as in Chacon, appellant did not assert in the trial court, nor contend on appeal, that he was misled as to what alleged violations he was called upon to defend against. See 558 S.W.2d at 876. And the trial court did not find that appellant violated a condition of his community supervision separate and distinct from the one alleged by the State in its Second Motion to Adjudicate Guilt. See id.

Officer Sims and appellant both testified that appellant tested positive for alcohol use, on July 13, 2015, and appellant admitted to "drinking alcohol," in violation of his community-supervision condition number two. See Bessard, 464 S.W.3d at 428-29. The record supports, by a preponderance of the evidence, the trial court's finding that appellant violated a condition of his community supervision. See id. at 429; see also Gamble v. State, 484 S.W.2d 713, 715 (Tex. Crim. App. 1972) (defendant's admission violated condition of probation sufficient, standing alone, to justify revoking probation); Rodriguez v. State, 2 S.W.3d 744, 746 (Tex. App.-Houston [14th Dist.] 1999, no pet.) ("Proof by preponderance of the evidence on any of the alleged violations of conditions of [community supervision] is sufficient to support the order of revocation."). Accordingly, we hold that the trial court did not err in finding true a violation of appellant's community-supervision condition number two.

We overrule appellant's second issue.

Original Motion to Adjudicate Guilt

In his first issue, appellant argues that the trial court erred in adjudicating his guilt because the State did not allege in its Original Motion to Adjudicate Guilt that he violated the condition prohibiting him from using, consuming, or possessing alcohol.

The record in this case shows that on March 17, 2014, the trial court placed appellant on community supervision subject to certain conditions. On August 19, 2014, the State filed its Original Motion to Adjudicate Guilt, alleging that appellant violated numerous conditions, but not the condition forbidding him from using, consuming, or possessing alcohol. On October 6, 2014, the State filed a motion to dismiss its Original Motion to Adjudicate Guilt, which the trial court granted. See generally State v. Lopez, No. 05-96-01757-CR, 1997 WL 53356, at *2 (Tex. App.-Dallas Feb. 11, 1997, no pet.) (not designated for publication) ("[T]he effect of the order dismissing the motion to revoke probation was to return the parties to their status before the motion was filed.").

Subsequently, on October 5, 2015, the State filed its Second Motion to Adjudicate Guilt, alleging that appellant violated numerous conditions, including "using an alcoholic beverage which was evidenced by; the presence of Ethyl Sulfate in a urine sample taken [f]rom [appellant] on July 13, 2015 at the Tarrant County Community Supervision and Corrections Department." The trial court then held a hearing on the State's Second Motion to Adjudicate Guilt. And, at that hearing, appellant testified:

[Appellant's counsel:] Now, you understand this is your second MAJ, correct? [Appellant:] Yes, sir.

Here, the record, in its totality, reflects that the trial court adjudicated appellant's guilt based on a violation of a condition of his community supervision as alleged in the State's Second Motion to Adjudicate Guilt.

However, as the State notes in its brief, the trial court's judgment adjudicating appellant's guilt in this case does erroneously reflect a finding that "[w]hile on community supervision[,] [appellant] violated the terms and conditions of community supervision as set out in the State's ORIGINAL Motion to Adjudicate Guilt." As explained above, the State's Original Motion to Adjudicate Guilt was dismissed by the trial court on October 6, 2014. See generally Lopez, 1997 WL 53356, at *2 ("[T]he effect of the order dismissing the motion to revoke probation was to return the parties to their status before the motion was filed."). And the State's Second Motion to Adjudicate Guilt, filed on October 5, 2015, was the only motion to adjudicate heard by the trial court in this case.

"[A]ppellate court[s] ha[ve] the power to correct and reform a trial court judgment `to make the record speak the truth when [they] ha[ve] the necessary data and information to do so, or make any appropriate order as the law and nature of the case may require.'" Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet ref'd)); see also TEX. R. APP. P. 43.2(b). "The authority of an appellate court to reform [an] incorrect judgment[] is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court." Asberry, 813 S.W.2d at 529-30. We conclude that the reference to "the State's ORIGINAL Motion to Adjudicate Guilt" in the trial court's judgment was a clerical error.

Accordingly, we modify the trial court's judgment to delete the word "ORIGINAL" from the portion of the judgment stating, "While on community supervision[,] [appellant] violated the terms and conditions of community supervision as set out in the State's ORIGINAL Motion to Adjudicate Guilt. . . ." See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Aderinboye v. State, No. 05-14-00857-CR, 2015 WL 4656677, at *2-3 (Tex. App.-Dallas Aug. 6, 2015, no pet.) (mem. op., not designated for publication) (modifying trial court's judgment to reflect trial court found allegations true as alleged in amended motion to adjudicate where judgment incorrectly reflected defendant violated conditions of community supervision "as set out in the State's ORIGINAL Motion to Adjudicate"); Jackson v. State, Nos. 05-14-00274-CR, 05-14-00275-CR, 2015 WL 3797806, at *6-7 (Tex. App.-Dallas June 17, 2015, no pet.) (mem. op., not designated for publication) (modifying trial court's judgment, which mistakenly referenced State's Original Motion to Adjudicate Guilt rather than amended motion to adjudicate guilt—"the only motion to adjudicate guilt heard by the trial court").

We overrule appellant's first issue.

Plea to Second Motion to Adjudicate Guilt

In his third issue, appellant argues that the trial court's judgment should be modified because it erroneously reflects that he pleaded "TRUE" to the State's Second Motion to Adjudicate Guilt. The State agrees.

Here, the trial court's judgment does not accurately comport with the record in this case in that it reflects that appellant pleaded "TRUE" to the allegations in the State's Second Motion to Adjudicate Guilt. Instead, the record shows that appellant pleaded "Not true" to the State's allegations.

Accordingly, we modify the trial court's judgment to state that appellant pleaded "Not true" to the allegations in the State's Second Motion to Adjudicate Guilt. See TEX. R. APP. P. 43.2(b); Nolan, 39 S.W.3d at 698 ("[A]ppellate court[s] ha[ve] the power to correct and reform a trial court judgment `to make the record speak the truth when [they] ha[ve] the necessary data and information to do so, or make any appropriate order as the law and nature of the case may require.'" (quoting Asberry, 813 S.W.2d at 529)); see also Torres v. State, No. 01-09-00936-CR, 2011 WL 148055, at *1 (Tex. App.-Houston [1st Dist.] Jan. 13, 2011, no pet.) (mem. op., not designated for publication) (reforming judgment to reflect defendant pleaded not true to allegations in State's motion to adjudicate).

We sustain appellant's third issue.

Conclusion

We affirm the judgment of the trial court as modified.

FootNotes


1. See TEX. PENAL CODE ANN. § 22.011(a)(1)(A) (Vernon 2011).
2. The conditions of appellant's community supervision were amended twice, but the above quoted condition remained constant in each of his "Amended Conditions of Community Supervision."
3. Our court has also previously addressed a nearly identical issue in Kirk v. State, No. 01-99-01184-CR, 2001 WL 279211, at *1-2 (Tex. App.-Houston [1st Dist.] Mar. 22, 2001, no pet.) (not designated for publication).

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