No. 05-10-00402-CR
Opinion Filed March 31, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80165-06.
Before Justices MOSELEY, RICHTER, and LANG-MIERS. Opinion By Justice LANG-MIERS.
ELIZABETH LANG-MIERS, Justice.
Frank William Burns, IV appeals from the adjudication of his guilt for sexual assault of a child. In a single point of error, appellant contends the trial court erred in relying on amended conditions of supervision which were imposed in violation of his procedural due process rights as guaranteed by the Fourteenth Amendment of the United States Constitution. We modify the judgment adjudicating guilt and affirm as modified. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.
Background
Appellant waived a jury and pleaded guilty to sexual assault of a child. See Tex. Penal Code Ann. § 22.011(a)(2)(A) (West Supp. 2010). On May 4, 2006, pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on ten years' community supervision, and assessed a $500 fine. On September 12, 2006, the trial court was notified that appellant was living in McLennan County and the McLennan County Community Supervision and Corrections Department required additional conditions of supervision in order to supervise appellant. The additional conditions were: (1) abide by a curfew by remaining inside your residence seven days a week from 10:00 p.m. to 6:00 a.m.; (2) submit to a polygraph examination anytime during the period of probation; and (3) submit to psychological and/or psychosexual testing administered by psychologists approved by the McLennan County Community Supervision and Corrections Department. On September 15, 2006, appellant signed an "amended conditions of supervision" form that listed the above three conditions. On July 6, 2009, the State petitioned to adjudicate appellant's guilt, alleging appellant violated eight conditions of his community supervision. The State filed an amended petition to adjudicate on January 7, 2010, alleging appellant violated eleven conditions of his community supervision. At a hearing on the amended petition, appellant pleaded not true to violating any of the conditions of his community supervision. After considering the evidence presented, the trial court found five of the allegations true, adjudicated appellant guilty, and assessed punishment at four years' imprisonment. Applicable Law
Appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). An order revoking community supervision must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence that would create a reasonable belief that the defendant has violated a condition of probation. Id. at 763-64. A finding of a single violation of community supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980). Thus, in order to prevail, appellant must successfully challenge all the findings that support the revocation order. See Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978). Discussion
Appellant contends the trial court denied him due process because it relied upon conditions of community supervision that were amended without a hearing. Appellant asserts the original plea agreement did not include the conditions that McLennan County demanded, and the trial court erred by not having a hearing before the conditions were amended and applied. The State responds that the trial court did not deny appellant due process or err in adjudicating his guilt. A trial court may alter or modify the conditions of community supervision at any time during the probationary period. See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (West Supp. 2010). Further, the conditions of community supervision are terms of a contract entered into between the trial court and a defendant. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). Conditions not objected to are affirmatively accepted as terms of the contract. Id. By entering into a contractual relationship without objection, a defendant affirmatively waives any rights encroached upon by the terms of the contract. Id. By signing the amended conditions of community supervision on September 15, 2006 and not raising an objection at that time, appellant has waived any complaint about the amended conditions of community supervision. Moreover, during the hearing, appellant admitted he failed several polygraph tests, was discharged from treatment for non-compliance, accessed the Internet to view pornography and chat with women, possessed adult pornography, purchased alcoholic beverages, and went within 1000 feet of a school. All of these acts violated the terms of his original community supervision. See Sanchez, 603 S.W .2d at 871. We conclude the trial court did not abuse its discretion in revoking appellant's community supervision and adjudicating his guilt. See Rickels, 202 S.W.3d at 763. We overrule appellant's sole point of error. We affirm the trial court's judgment adjudicating guilt.