Opinion
No. 05-10-01270-CR No. 05-10-01271-CR
02-22-2012
ANTHONY GLEN MOORES, Appellant v. THE STATE OF TEXAS, Appelle
AFFIRM and Opinion Filed February 22, 2012
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause Nos. 059588 and 059589
MEMORANDUM OPINION
Before Justices Lang, Murphy, and Myers
Opinion by Justice Murphy
Anthony Glen Moores appeals his two convictions for robbery and aggravated assault with a deadly weapon for which he was sentenced to ten-year concurrent sentences and fined $1000 in each case following the trial court's revocation of his community supervision in both cases. See Tex. Penal Code Ann. §§ 12.33, 22.02(a)(2), 29.02(a) (West 2011). Appellant claims in three issues that the trial court did not have jurisdiction to revoke his probation in the robbery case because the State failed to allege an "on or about date" (paragraph B in the State's amended motion to revoke in the robbery case) and that the State failed to prove the allegations for revocation by a preponderance of the evidence in both cases (paragraph A in the State's motions to revoke in both cases). We affirm. BACKGROUND
These robbery and aggravated assault cases arose from a single domestic incident involving the same complainant, Lisa Ashworth, who was appellant's former girlfriend. On May 20, 2010, appellant pleaded guilty in both cases in a single proceeding and was placed on five years' deferred adjudication probation in the aggravated assault case and five years' regular probation in the robbery case. Condition sixteen of appellant's probation in the robbery case and condition fifteen of appellant's probation in the aggravated assault case prohibited appellant from having direct or indirect contact "in any way with the victim, LISA ASHWORTH." Condition sixteen of appellant's probation in the aggravated assault case required appellant to enter and successfully complete a Batterer's Intervention and Prevention Program (BIPP).
Less than three weeks later, the State filed motions to revoke appellant's probation in both cases. The State alleged in paragraph A of each motion that appellant violated condition sixteen of his probation by admitting to his probation officer on or about June 1, 2010 "that he text message[d] to Lisa Ashworth through his mother between the dates of May 22, 2010 and June 1, 2010." On August 6, 2010, the State filed an amended motion to revoke only in the robbery case alleging in paragraph B that appellant failed to comply with condition sixteen of his probation by "[h]aving repeated contact both direct and in-direct [sic] with Lisa Ashworth."
The record therefore reflects the State incorrectly alleged in the aggravated assault case that appellant violated probation condition sixteen, which required appellant to enter and successfully complete BIPP, when a violation of probation condition fifteen (prohibiting contact with Ashworth) was intended.
When the trial court asked why the allegation in paragraph B in the amended motion to revoke in the robbery case was not included in the aggravated assault case, appellant's probation officer testified, "Actually, the two requests that I submitted on both [motions to revoke], the violation of no contact was the only allegation on each case."
The State presented evidence at the revocation hearing that appellant had numerous direct and indirect contacts with Ashworth beginning on May 27, 2010, by calling her, leaving her voice mails, and sending her pictures and text messages. Following this hearing, the trial court revoked appellant's probation in the robbery case based on its findings that appellant violated condition sixteen of his probation as alleged in paragraphs A and B in the motions to revoke in that case. The trial court revoked appellant's probation in the aggravated assault case based on its finding that appellant violated "condition sixteen" of his probation as alleged in paragraph A in the motion to revoke in that case. ANALYSIS
The State has the burden to prove by a preponderance of the evidence that the defendant violated a condition of his probation. See Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006). Appellate courts view the evidence in the light most favorable to the trial court's ruling revoking a defendant's probation and determine whether the trial court abused its discretion. See id.; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). The violation of any condition of probation is sufficient to support a trial court's order revoking probation. See Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009).
In a proceeding to revoke probation, the defendant is entitled to the "rudiments of due process," which include a written revocation motion that fully informs a defendant of the alleged violation of a term of probation. Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. [Panel Op.] 1980). Allegations in a motion to revoke probation, however, need not be stated with the same particularity required in an indictment as long as they clearly set forth the alleged probation violations sufficient to inform the defendant what he is required to defend against. See Labelle v. State, 720 S.W.2d 101, 104 (Tex. Crim. App. 1986).
Allegation Appellant Admitted To Text Messages Through His Mother
Appellant claims in issue one that the State failed to prove by a preponderance of the evidence the paragraph A allegation in the motions to revoke in both cases that he admitted to his probation officer that he texted Ashworth through his mother. The State disagrees, while also acknowledging "the evidence is much more tenuous" regarding whether it proved this allegation by a preponderance of the evidence. The State claims it is unnecessary to address whether it proved the paragraph A allegation that appellant texted Ashworth through his mother because it presented evidence at the revocation hearing that appellant violated his probation in both cases by making direct and indirect contacts with Ashworth. The State claims the variance between this evidence and the paragraph A allegation regarding the admission of texting through appellant's mother is immaterial because it did not operate to appellant's surprise or prejudice. We need not address whether this variance is material, because we conclude the trial court did not abuse its discretion to find the State proved by a preponderance of the evidence the paragraph A allegation that appellant admitted he texted Ashworth through his mother and the underlying elements of conditions sixteen and fifteen prohibiting "direct or indirect" contact with Ashworth.
We note that any failure by the State to prove that appellant admitted texting Ashworth through his mother is immaterial primarily because such an admission to his probation officer was not an element of condition sixteen of his probation in the robbery case and condition fifteen of his probation in the aggravated assault case prohibiting direct or indirect contact with Ashworth. See Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (evidentiary sufficiency measured against elements of an offense).
--------
Appellant's probation officer testified at the revocation hearing that soon after appellant was placed on probation on May 20, 2010, she began receiving complaints from Ashworth through the district attorney's office that appellant had been contacting Ashworth. The probation officer told appellant the contacts had to stop and that this "included getting somebody else, like his mother, to text message for him." Appellant testified that he told his probation officer it was possible his "mother could have been drinking and made those texts." Ashworth also testified and stated that, in addition to the numerous contacts that appellant himself had with her, she also received voice mails and text messages from appellant's mother. Appellant's brother testified he knew their mother texted Ashworth from appellant's phone and "stuff like that" and that Ashworth and their mother "had arguments and stuff like that on [appellant's] phone."
The State argues the following testimony of appellant's probation officer during appellant's cross-examination of her supports the paragraph A allegation that appellant admitted texting Ashworth through his mother.
Q. Ms. Hansard, you're aware that one of the allegations on the motion to proceed with adjudication of guilt is that you said that Mr. Moores admitted that he texted the victim through his mother on certain dates?
A. May I refer back to my notes, Your Honor?
[THE COURT]: Yes.
A. That's correct.
Q. And isn't it true that we had a conversation, you and I and Mr. Moores, this morning in court?
A. Yes.
Q. And did you understand him to say that he was not admitting under any circumstances that he had texted Ms. - the victim through his mother. Correct?
A, During today's conversation, yes.
Q. And that his referring to trying to get his property was an ongoing thing, that he had been trying to get his property for many months; is that correct?
A. That's what he said this morning, yes.
Q. And did he also say that under no circumstances would he admit such a thing because it wasn't true?
A. That's what he said today, yes.
While it may be a close question, we conclude the evidence, viewed in the light most favorable to the trial court's findings that appellant violated his probation as alleged in paragraph A, is sufficient to support these findings under the preponderance-of-the-evidence standard. Though appellant's probation officer testified on cross-examination that appellant denied that morning telling her that he texted Ashworth through his mother, the trial court reasonably may have inferred from the testimony that appellant told his probation officer something different prior to the revocation hearing. Ashworth testified she received text messages from appellant's mother. Appellant's brother testified he knew their mother texted Ashworth on appellant's phone. It was not unreasonable for the trial court to infer under the preponderance-of-the-evidence standard that appellant participated in these text message contacts to Ashworth with and through his mother. Additionally, appellant denied texting Ashworth through his mother and claimed the text messages had been fabricated. The trial court could have disbelieved appellant's testimony denying both the text messages and his alleged admission to his probation officer and, in connection with the other testimony in the case, considered appellant's untruthful statements as evidence of guilt. See Padilla v. State, 326 S.W.3d 195, 201 (Tex. Crim. App. 2010) (rational trier of fact could conclude defendant was untruthful and consider the untruthful statements as evidence of guilt).
Based on the evidence described, we also reject appellant's sufficiency challenge in the robbery case because the evidence supports the trial court's finding that appellant violated his probation as alleged in paragraph B (direct and indirect contacts with Ashworth by appellant himself) in the amended motion to revoke. See Smith, 286 S.W.3d at 342 (violation of any condition of probation sufficient to support trial court's order revoking probation). Issue one is overruled.
Allegation of "Condition Sixteen" in Aggravated Assault Case
Appellant claims in issue two that the revocation order should be reversed because the State failed to prove he violated "condition sixteen" in the aggravated assault case, which requires enrollment and completion of a BIPP program, because the State failed to prove a violation of that condition. This issue presents another variance issue because paragraph A alleged a violation of "condition sixteen" based on appellant's admission of texting Ashworth through appellant's mother, while the substance of the allegation and the State's evidence showed a violation of "condition fifteen." This variance is immaterial because it was a "little mistake" that did not impair appellant's ability to mount a defense or otherwise affect his substantial rights. Byrd v. State, 336 S.W.3d 242, 247-48 (Tex. Crim. App. 2011) (variances not likely to prejudice defendant's substantial rights by failing to give notice or permitting subsequent prosecution for same offense are "little mistakes" that are immaterial); Gollihar v. State, 46 S.W.3d 243, 258 (Tex. Crim. App. 2001) (variance between indictment allegation that defendant stole go-cart model number 136202 and proof at trial go-cart's model number was 136203 was immaterial because needless allegation of wrong model number did not impair defendant's ability to prepare defense). The issue at the revocation hearing under the paragraph A allegation was whether appellant admitted violating his probation and violated his probation by texting Ashworth through his mother-not whether this conduct was a violation of probation condition fifteen or sixteen. See id. Issue two is overruled.
Failure to Allege "On or About"
Appellant claims in issue three that the State's omission of an "on or about" date in paragraph B in its amended motion to revoke in the robbery case failed to vest the trial court with jurisdiction to revoke his probation based on paragraph B. The State's failure to state an "on or about" date in the allegation appellant had repeated contact with Ashworth did not affect the trial court's jurisdiction. See Labelle, 720 S.W.2d at 107 (jurisdiction of trial court not affected when motion to revoke probation fails to state an offense).
In support of his argument the trial court lacked jurisdiction as to paragraph B, appellant relies on the court of criminal appeals' decision in Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995). In Cook, the court decided an indictment that failed to include the defendant's name as the person charged with a crime in that indictment did not meet the constitutional definition of an indictment required in article V, section 12(b) of the Texas Constitution and, therefore, failed to vest the trial court with jurisdiction over the case. Id. at 480.
Cook is inapplicable. The pleading requirements for a motion to revoke probation are not governed by article V, section 12(b) of the Texas Constitution and need not be alleged with the same particularity required in an indictment. See Labelle, 720 S.W.2d at 104. In addition, unlike the indictment in Cook, paragraph B did allege appellant's name as the person who violated condition sixteen of his probation by having direct and indirect contacts with Ashworth.
Appellant also presents a non-jurisdictional argument that the State's failure to allege an "on or about" date failed to apprise him "of when he is alleged to have committed the act, and whether it is within the term of limitations (term of probation)." Appellant did not raise this argument in the trial court. He therefore has not preserved this argument for purposes of appeal. See Cook, 902 S.W.2d at 476; Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990) (defendant required to object to substantive defect in indictment). In addition, any error in the State's failure to allege in paragraph B an "on or about" date was harmless, because the record from the revocation hearing reflects that appellant knew what he was required to defend against and that his contacts with Ashworth that the State proved and relied upon to revoke appellant's probation occurred within the term of appellant's probation. Issue three is overruled, and the trial court's judgment is affirmed in both cases.
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101270F.U05
Court of Appeals
Fifth District of Texas at Dallas JUDGMENT
ANTHONY GLEN MOORES, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01270-CR
Appeal from the 59th Judicial District Court of Grayson County, Texas. (Tr.Ct.No. 059588).
Opinion delivered by Justice Murphy, Justices Lang and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered February 22, 2012.
MARY MURPHY
JUSTICE
Court of Appeals
Fifth District of Texas at Dallas JUDGMENT
ANTHONY GLEN MOORES, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01271-CR
Appeal from the 59th Judicial District Court of Grayson County, Texas. (Tr.Ct.No. 059589).
Opinion delivered by Justice Murphy, Justices Lang and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered February 22, 2012.
MARY MURPHY
JUSTICE