Opinion filed July 31, 2014



### In The 

# Eleventh Court of Appeals

__________ 

### No s . 11

- 12

- 00 217

- CR & 11

- 12

- 00218

- CR

__________
JOHNNY DWIGHT HOUSTON , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 104th District Court Taylor County, Texas Trial Court Cause No s . 17097B & 17098B

M E M O R A N D U M O P I N I O N Appellant, Johnny Dwight Houston
, appeals the trial court’s judgment s revoking his community supervision on two convictions for injury to a child

. See
T EX

. P ENAL C ODE A NN

. § 22.04(f) (West Supp. 2013 ). In three issue s in each appeal, he argues that (1) his due process rights have been violated by his inability to challenge the sufficiency of the evidence support ing the revocation of his community supervisio n , (2) the evidence was insufficient to prove that he
absconded from a substance abuse felony punishment facility (SAFPF) , as the2 S tate alleged in its mo tion to revoke
, and (3) the trial court erred when it ordered him to pay the fees of his court

- appointed attorney

. We affirm

. Background Facts Pursuant to a plea agreement, Appellant originally ple a d ed guilty to the
offense s of injury to a child in trial court cause number s 17097B and 17098B

. F or each conviction, t he trial court sentenced Appellant to confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of ten years but then probat ed those sentences in order to place Appellant on community supervision for a term of ten years

. On April 25, 2012, t he State filed a motion to revoke Appellant’ s

com m unity supervision in each cause

. The motions alleged that Appellant violated
the terms and conditions of his community supervision in each case in at least sixteen different ways. 1 At the hearing held on the motions to revoke, Appellant ple a d ed true to all of the State’s allegations except for the allegation that he absconded from th e SAFPF on the night of March 1, 2012. The State presented evidence only on the allegation

t hat Appellant absconded from th e SAFPF . The State relied on Appellant’s plea of

true with respect to the remain ing allegations. At the conclusion of the hearing, t he trial court found all of the State’s allegations to be true. T he trial court revoked Appellant’s community supervision
in both causes and ordered him to serve his original sentence of ten years
confinement for each of his two convictions for injury to a child

. The trial court
ordered the sentences to run concurrently.

1 These allegations included claims that Appellant used prohibited substances, failed to report to his supervision officer, failed to update his place of employment, failed to abide by his curfew, failed to avoid persons and places of disreputable character, failed to complete required community service, and failed to pay court costs and other fees.3 Analysis
In his first issue, Appellant argues that his due process rights were violated because the State was not required to present evidence beyond his plea of true to

prove that he violated the terms of his community supervision. He contends that the statutory protections offered by Article 1.15 of the Texas Code of Criminal
Procedure should be extended to revocation proceedings based on the similarity those proceedings have to crim inal trials where a defendant pleads guilty. See
T EX

. C ODE C RIM

. P ROC

. A NN

. art. 1.15 (West 2005 ); Menefee v. State , 287 S.W.3d 9, 13 (Tex. Crim. App. 2009) (“ No trial court is authorized to render a conviction in a felony case, consistent with Article 1.15, based upon a plea of guilty ‘ without sufficient evidence to support the same. ’ ” ).
T he Texas Court of Criminal Appeals has made it clear that the v iolation of a single condition of community supervision is a sufficient ground to support revocation of community supervision. Moses v. State , 590 S.W.2d 469, 470 (Tex.
Crim. App. 1979). Furthermore, a defendant ’ s plea of true, standing alone, is
suffici ent to support the revocation of community supervision. Id. Thus, if a defendant pleads true to violating any condition of his community supervision, he cannot claim that the evidence is insufficient to support revocation. Mitchel l v. State , 482 S.W.2d 2 21, 222

– 23 (Tex. Crim. App. 1972); Harris v. State , 160 S.W.3d 621, 626 (Tex. App.

— Waco 2 005, pet. struck ). C onsequently, Appellant is challenging the holdings of the Court of Criminal Appeals that a plea of true, standing alone, is sufficient to support the revoc ation of community supervision. We previously addressed the issue raised by Appellant in Johnson v. State
, No. 11

- 11

- 00004

- CR, 2012 WL 3891621
, at *2 (Tex. App.

— Eastland Sep t

. 6, 2012, pet. ref’d) (mem. op., not designated for publication)

. W e held in Johnson that the failure to present this due process contention in the trial c ourt results in a
waiver of the error on appeal. See T EX

. R. A PP

. P. 33.1(a) (stating that, as a4 prerequisite to presenting a complaint for appellate review, a timely request, objection, or motion must be made and ruled upon by the trial court); Pena v.
State , 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (finding that a due process complaint can be waived on appeal). Accordingly, Appellant waived his due process issue by failing to raise it in the trial court. Moreover, our conclusion in Johnson demonstrates that Appellant’s due process complaint fails on the merit s as well. Citing the opinion of our sister court
in Godley v. State , No. 03

- 11

- 00083

- CR, 2012 WL 1660613 (T ex. App

. — Austin May 11, 2012, pet. ref’ d) (mem. op., not designated for publication) , we rejected
the same argument that Appellant makes here. As it did in Johnson and Godley
, binding precedent contr ols our decision in this case. Accordingly, a defendant who pleads true to violating conditions of community supervision cannot later claim
that there is insufficient evidence to revoke that supervision

. We overrule Appellant’s first issue in each appeal

. In his second issue, Appellant argues that the trial court abused its discretion when it revoked his community supervision on the ground that he absconded from
his SAFPF because the evidence was insufficient to support the allegation. A trial
court’ s decision to revoke community supervision is reviewed for an abuse of
discretion. Rickels v. State , 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The State has the burden of showing by a preponderance of the evidence that the defendant committed a violation of the conditions of his community super vision.
Cobb v. State , 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking the community supervision. Cardona v. State , 665 S.W.2d 492, 493

– 94 (Tex. Crim. App. 198 4). The trial court is the sole judge of the credibility of the witnesses and the weight given to their testimony, and we review the evidence in the light most
favorable to the trial court ’ s ruling. Garrett v. State , 619 S.W.2d 172, 174 (Tex.5 Crim. App. [Panel Op.] 1981). Proof of one violation of the terms of community supervision is sufficient to support revocation. Sanchez v. State , 603 S.W.2d 869, 871 (Tex. Crim. App. 1980). A defendant’s true plea provides the court with
sufficient evidence to rev oke his community supervision. Smith v. State , 286 S.W.3d 333, 342 (Tex. Crim. App. 2009). In light of Appellant’s plea of true to fifteen other alleged violations of the terms and conditions of community supervision, we need not consider Appellant’s evidentiary contentions to a single alleged violation. When a trial court finds several violations of community supervision conditions, we affirm the revocation order if the proof of any single allegation is sufficient. S ee Hart v. State , 264 S.W.3d 364, 367 ( Tex. App.

— Eastland 2008, pet. ref’d). The trial court did not abuse its discretion in revoking Appellant’s community supervision because it had
numerous other violations on which it could have based its decision . We overrule
A ppellant’s second issue in each appeal.
In his third issue, Appellant claims that a portion of the judgment s in cause number s 17097B and 17098B should be vacated because they incorrectly assessed
the fees of his court

- appointed attorney against him

. The State does not dispute Appellant’s indigent status but argues that the final judgments do not require Appellant to pay attorney ’s fees

. The State concedes that
, if the evidence establishes that the judgme nts require Appellant to pay attorney ’s fees , the fees should be deleted from the judgment s

. T he trial court’s original judgment s placing Appellant on community supervision requir ed Appellant to pay several fees as a term and condition of his community supervision , including the fees for his court

- appointed attorney . The judgments did not set out a dollar amount owed for the attorney’s fees
, b ut the judgments contained a notation indicat ing that the amount was to be determined
later. T he trial court la ter established the amount of the attorney’s fees to be paid6 by Appellant in subsequent orders amending conditions of community super

vision. 2 The trial court’s subsequent judgments revoking Appellant’s community supervision did not specifically require Ap pellant to pay the assessed costs for attorney’s fees. However, they do provide that he is to be punished “in accordance with the judgment and sentence originally entered in this cause.” As noted previously, the original judgments required Appellant to p ay attorney’s fees. Accordingly, the judgments revoking Appellant’s community supervision seemingly require him to pay the fees of his court

- appointed attorney. Under the authority of Wiley v. State , 410 S.W.3d 313, 318

– 19 (Tex. Crim. App. 2013), we conclude that Appellant has not preserved this issue for appellate
review. T he Court of Criminal Appeals recently held in Wiley that a defendant, whose community superv ision had been revoked, forfeited his challenge to the imposition of court

- appointed attorney ’s fees by failing to bring such a claim in a direct appeal from the order originally imposing community supervision. As noted by the court, “[A]n appellant will not be permitted to raise on appeal from the revocation of his community supervision any claim that he could have brought on an appeal from the original imposition of that community supervision.” Wiley , 410
S.W.3d at 319. As was the case in Wiley , the orders imposing the payment of attorney’s fee s were the original judgments placing Appe llant on community supervision. Under Wiley , Appellant was required to timely appeal these judgments in order to challenge the assessment of court

- appointed attorney’s fees

. 3

2 In its motions to revoke Appellant’s community supervision, the State listed Appellant’s failure to pay the attorney’s fees as one of the allegations against him . Appellant pleaded true to this allegation
, and the trial court implicitly found it to be true.

3 We note that Appellant is challenging the imposition of any attorney’s fees against him rather than the amount of attorney’s fees assessed him. Accordingly, he potentially could have raised this claim in a direct appeal of the judgments imposing community supervision.7 The fact that Appellant specifically waived his right to appeal the judgments imposing commu nity supervision does not change the result. Perez v. State , 424 S.W.3d 81, 85

– 86 (Tex. Crim. App. 2014) (“ Appellant’s waiver of his right to appeal does not excuse his failure to appeal the assessment of court costs at the time of the origi nal imposition of community supervision. ”)

. Because Appellant did not challenge the assessment of attorney’s fees by a direct appeal from the original judgments imposing community supervision, he has waived the issue. We overrule Appellant’s third issue in each appeal

. This Court’s Ruling
W e affirm the judgment s of the trial court.

JOHN M. BAILEY
JUSTICE

July 31, 2014 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.