Opinion
Nos. 14-09-00802-CR, 14-09-00803-CR
Opinion filed December 9, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 263rd District Court Harris County, Texas, Trial Court Cause Nos. 1070654, 1127326.
MEMORANDUM OPINION
Appellant Marcus James Payne challenges the trial court's adjudication of his guilt in two separate deferred adjudication aggravated-assault cases. In seven issues, he asserts that the trial court (a) failed to limit the grounds for revocation to the violations the State pleaded; (b) did not function as a neutral and detached hearing body during the revocation proceeding; (c) refused to provide a written statement of the evidence relied on in revoking appellant's probation; (d) denied appellant a fair chance to present his appeal; (e) denied appellant "due course of law" during the revocation proceedings; (f) abused its discretion in evaluating the evidence to support the revocation; and (g) arbitrarily revoked appellant's probation. We affirm.
BACKGROUND
On August 21, 2006, in cause number 1070654, appellant pleaded guilty to aggravated assault with a deadly weapon, alleged to have occurred on or about May 28, 2006. The trial court deferred a finding of guilt, placed appellant on community supervision for five years, and imposed a $750 fine. Less than two years later, on July 11, 2008, appellant pleaded guilty to aggravated assault — serious bodily injury alleged to have occurred on or about July 14, 2007, in cause number 1127326. The trial court again deferred a finding of guilt and placed appellant on community supervision for five years on July 14, 2008. In September 2008, the State filed motions to adjudicate appellant's guilt in both cases, alleging multiple violations of the terms and conditions of his community supervision. In April 2009, the State filed amended motions, in which it alleged the following violations of appellant's community supervision:• The July 14, 2007 aggravated assault (Cause No. 1070654 only);
• A third aggravated assault — serious bodily injury that allegedly occurred on August 17, 2008;
• An assault on another inmate in Harris County Jail on January 10, 2009;
• An assault on another inmate in Harris County Jail on December 25, 2008;
• Failure to report to the Community Supervision Office in August, September, and October 2008;
• Failure to perform his community service hours as ordered by the court;
• Failure to attend the anger management program ordered by the court; and
• Failure to pay Crime Stoppers as ordered by the court (Cause No. 1127326 only).The trial court heard the State's motions to adjudicate on June 15, 2009. At the hearing, Patricia Archer, appellant's community supervision officer, testified. She explained that appellant was assigned to her "mental health caseload" in July 2008. According to Archer, appellant had been diagnosed with bipolar disorder and attention deficit hyperactivity disorder, and he was on medication for both disorders. She explained that appellant did not inform her when he was charged with the third aggravated assault, failed to report to her office as required for the months of September and October, did not perform his community service hours as ordered, and did not begin the anger management treatment program as directed. Archer stated that appellant told her he was unable to perform his community service for August 2008 because he reported to the organization he was supposed to serve after the 15th of the month and the organization refused to allow him to perform his hours. She also explained that appellant's file was forwarded to the court in September because the motion to adjudicate had been filed, but testified that appellant could have reported to her nonetheless. Regarding the anger management course, Archer stated that appellant was approved for the free course in July 2008, but was charged with the third aggravated assault before he could enroll. Finally, she testified that appellant had been involved in fights while he was in jail on the third aggravated assault charge. The complaining witness in the third aggravated assault testified that she and appellant got into an argument while in her car at the drive-through lane of a fast-food restaurant. She explained that after the argument escalated, they both got out of the car. According to the complainant, she pushed appellant because he was yelling in her face. She stated that when she turned to get back into her car, appellant grabbed her head and "slammed" it into the top of her car window. She hit the window with such force that she split her lip badly enough to require seventeen stitches, cracked several of her teeth and knocked one out, and fractured her top jaw bone. On cross-examination, the complainant admitted that she had been drinking earlier that day and evening, but denied that she was intoxicated when the altercation occurred. The State's final witness, Deputy Kathleen Torres, custodian of records for the Harris County Jail Inmate Disciplinary Files, testified that appellant had been found guilty of "fighting" on December 25, 2008. When asked to clarify the difference between fighting and assault in jail, Torres explained:
In an assault, it's normally one inmate instigates it, the other inmate doesn't do anything to defend himself. He either tries to back away, get help, get away from that particular inmate or doesn't have a chance to respond to do anything because he gets knocked out or injured too seriously.
As for a fight, in the inmate handbook, it states mutual combat. Any time — — doesn't matter who started the fight. In the inmate handbook if you choose to defend yourself, hit back, strike back, it is considered a fight in Harris County.Torres also testified that appellant had been found not guilty of the January 2009 assault on an inmate because the report was filed too late to be investigated. After Torres testified, the State rested. Appellant presented the testimony of several witnesses regarding the third aggravated assault. These witnesses, who were either in the car when the assault occurred or present earlier in the evening, testified that the complainant had been drinking and was intoxicated when the altercation occurred and that she later described the incident as an "accident" or "horseplay." Two witnesses were actually in the car when the assault occurred. One of these witnesses testified that the complainant got angry with appellant because he "messed with" the radio in the complainant's car; she ordered him to get out of her car. This witness said the complainant got out of the car and was screaming at appellant; she stated that appellant got out of the car, and the two started pushing each other. This witness testified that appellant started "getting mad" and "he pushed her for the last time, she hit her face on her door[.]" The other witness inside the car related a somewhat similar story, but stated that she did not actually see what occurred once appellant and the complainant got out of the car. Additionally, an officer from a community-service organization, Creative Ministries International, Inc. d/b/a Angelic Resale, testified that appellant was assigned to and performed community-service hours for his organization. He stated, however, that appellant did not perform any community service in June, July, and September 2008. Finally, appellant's mother testified that she had attempted to reach appellant's community supervision officer by phone several times after August 2008, but was unable to do so. She explained that appellant's probation appointment was September 15, 2008, but Hurricane Ike hit so he was unable to go to that appointment. She stated that she continually called his community supervision officer throughout the month and finally spoke to her supervisor around the end of September. She testified that she then discovered that appellant's file had been sent to the District Attorney's office earlier in September, which was why her calls had not been returned. Finally, she explained that when she informed appellant that a warrant had been issued for his arrest in November, he turned himself in. After hearing the evidence and argument of counsel, the trial court concluded that appellant had violated the terms of his community supervision and adjudicated him guilty of both offenses. Specifically, the trial court found that appellant had "commit[ed] an offense against the State of Texas." The trial court sentenced appellant to eight years' confinement for each offense, with the sentences to run concurrently. This appeal followed.