Nos. 05-02-00156-CR, 05-02-00157-CR.
Opinion Filed January 28, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F01-57302-L, F01-73971-UL. AFFIRM.
Before Justices MORRIS, JAMES, and FITZGERALD.
Opinion By Justice FITZGERALD
Sam Taylor appeals the revocation of his probation. Appellant waived a jury trial and entered a negotiated guilty plea to possession of 3,4-methylenedioxy methamphetamine in an amount of one gram or more but less than four grams (cause no. 05-02-00156-CR) and forgery (cause no. 05-02-00157-CR). See Tex. Health Safety Code Ann. §§ 481.103, 481.116 (Vernon Supp. 2003); Tex. Pen. Code Ann. § 32.21 (Vernon Supp. 2003). Appellant pleaded true to one enhancement paragraph in the forgery case. Pursuant to the plea bargain agreements, the trial court sentenced appellant to two years' confinement, probated for four years, and a $1000 fine for the drug offense, and two years in a state jail facility, probated for four years, and a $500 fine for the forgery. Subsequently, the State moved to revoke appellant's probation in both cases, alleging appellant violated several conditions of probation. Appellant pleaded true to the allegations in a hearing on the motions. The trial court found the allegations true, revoked appellant's probation in each case, and sentenced him to two years' confinement for the drug offense and two years in a state jail facility for the forgery. In two points of error, appellant contends the trial court abused its discretion in revoking his probation in each case, and the trial court lacked jurisdiction in the forgery case because there was no transfer order. We affirm the trial court's judgment in each case.
insufficient evidence
In his first point of error, appellant argues that although he pleaded true to the allegations in the motions to revoke, the evidence was insufficient to sustain the revocations because he was in jail in another county for the first two months of the probationary period. The State argues the trial court did not abuse its discretion in revoking appellant's probation because appellant pleaded true to violating the conditions of his probation. We agree with the State. We review an order revoking probation under an abuse of discretion standard. See Bennett v. State, 476 S.W.2d 281, 282 (Tex.Crim.App. 1972); Lee v. State, 952 S.W.2d 894, 897 (Tex.App.-Dallas 1997, no pet.) (en banc). In making this determination, we examine the evidence in the light most favorable to the trial court's order. See Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981); Lee, 952 S.W.2d at 897. The State must prove by a preponderance of the evidence that the probationer violated the terms and conditions of his probation. See Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App. 1993); Lee, 952 S.W.2d at 901. In a revocation proceeding, the trial judge is the sole trier of the facts, credibility of the witnesses, and the weight to be given the testimony. See Lee, 952 S.W.2d at 897. On October 16, 2001, appellant was placed on probation in both cases. The State filed motions to revoke probation on December 28, 2001, and filed amended motions to revoke probation on January 11, 2002 alleging appellant failed to report (1) in November and December 2001, (2) for a post-sentence interview, and (3) to the collections department to set up a payment plan, and appellant failed to pay costs, fees, and restitution in the forgery case. At the January 18, 2002 revocation hearing, the State offered into evidence appellant's signed plea of true and stipulation of evidence without objection. Appellant testified he did not report or pay fees and restitution because he was arrested and taken to the Collin County jail on an assault charge the same day he was placed on probation. He remained in the Collin County jail for seven weeks. When appellant was released, he called his probation officer and scheduled an appointment. Appellant testified he missed the appointment because he got the date wrong. Appellant further testified that although he knew there was a warrant for his arrest, he did not report to the probation department on January 4, 2002 because he did not have the money to pay the fees and restitution. We conclude the evidence is sufficient to show appellant violated the conditions of his probation. Thus, the trial court did not abuse its discretion in revoking appellant's probation. See Cobb, 851 S.W.2d at 874; Lee, 952 S.W.2d at 901. Accordingly, we overrule appellant's first point of error. no transfer order
In his second point of error, appellant contends the trial court lacked jurisdiction in the forgery case because the case was not properly transferred to its docket. Appellant argues the indictment was returned in the 291st Judicial District Court, and there is no order transferring the case to Criminal District Court No. 5. The State responds stating the fact that having no transfer order in the record is a procedural matter, not a jurisdictional one, and appellant has waived his complaint. We agree with the State. Appellant did not file a plea to the trial court's jurisdiction or in any way complain to the trial court about the lack of a transfer order. Consequently, appellant's complaint concerning this issue, raised for the first time on appeal, is untimely. See Sharkey v. State, 994 S.W.2d 417, 419 (Tex.App.-Texarkana 1999, no pet.). Accordingly, we overrule appellant's second point of error. We affirm the trial court's judgments.