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                              NUMBER 13-10-00581-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

ESTEBAN DELEON,                                                                Appellant,

                                              v.

THE STATE OF TEXAS,                                                             Appellee.


                     On appeal from the 36th District Court
                          of Aransas County, Texas.


                          MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez
       Appellant Esteban DeLeon appeals from a judgment revoking his community

supervision. By nine issues which we renumber as five, DeLeon contends the following:

(1) the judgment places him in double jeopardy; (2) the State failed to show due diligence

in notifying him of its motion to revoke and the arrest warrant; (3) the trial court abused its

discretion in granting the State's motion to revoke his community supervision; (4)
counsel's assistance was ineffective; and (5) the trial court improperly cumulated his

sentences. We affirm, in part, and reverse and remand, in part.

                                           I. BACKGROUND1

        On December 9, 2003, DeLeon was convicted by a jury of aggravated assault with

a deadly weapon, a second-degree felony under section 22.02 of the Texas Penal Code.

See TEX. PENAL CODE ANN. § 22.02 (West 2011). That same day, in the same cause

number, the jury also convicted DeLeon of robbery under section 29.02, also a

second-degree felony. See id. § 29.02 (West 2011). After a punishment hearing, the

jury sentenced DeLeon to two years in the Institutional Division of the Texas Department

of Criminal Justice (TDCJ) for aggravated assault, and the trial court imposed the

recommended two-year sentence.                For the robbery conviction, the jury sentenced

appellant to ten years in the TDCJ, which the trial court suspended as recommended by

the jury. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4 (West Supp. 2011). On

December 10, 2003, DeLeon was placed on community supervision for ten years for the

robbery conviction and was served with his conditions of community supervision. On

October 17, 2005, after DeLeon was released from the TDCJ, having served his two-year

sentence for aggravated assault, the Aransas County Community Supervision

Department (the Department) resumed the community supervision. After a hearing on

November 10, 2005, restitution was determined to be $58,400.

        On March 31, 2006, the State filed a motion to revoke DeLeon's community

supervision, alleging the following six violations: (1) failure to report in person to the

        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                     2
supervision officer as ordered by the court; (2) failure to report a change of address,

change of job, or arrest to the supervision officer within two Department working days; (3)

failure to pay a statutory supervisory fee as ordered; (4) failure to pay court costs as

ordered; (5) failure to pay restitution as ordered; and (6) failure to pay a crime stopper's

fee as ordered. Capias on this motion was issued on March 31, 2006 and served on

DeLeon on August 27, 2010 when he was extradited back to Aransas County from

Honolulu, Hawaii.

       On September 9, 2010, the State filed an amended motion to revoke alleging eight

violations, including the six violations identified above and the following additional

violations: failing to timely report an arrest for operating a vehicle under the influence of

an intoxicant and an arrest for promoting detrimental drugs. The capias on the amended

motion to revoke was issued on September 9, 2010 and served on DeLeon on September

10, 2010.

       The trial court heard the State's amended motion to revoke community supervision

on September 30, 2010. DeLeon appeared with counsel and was admonished by the

trial court.   DeLeon indicated to the trial court that he was satisfied with the

representation provided to him by his counsel. DeLeon pleaded true to the allegations

contained in the first seven paragraphs of the State's amended motion to revoke, and the

State abandoned the eighth violation that alleged an arrest for promoting detrimental

drugs. In support of DeLeon's pleas of true, DeLeon's stipulation and waiver of the

pre-sentence report and his stipulation of the evidence and judicial confession were

admitted as State's Exhibits 1 and 2, respectively. DeLeon also testified at the hearing.

In addition, on the issue of disposition, the trial court admitted a revocation report

                                             3
prepared by the Department as State's Exhibit A.

       After hearing the evidence, the trial court found DeLeon violated the terms and

conditions of his community supervision and revoked his probation. It then sentenced

DeLeon to ten years' confinement in the TDCJ. The trial court denied DeLeon's motion

for reconsideration or reduction of his sentence. This appeal followed.

                                  II. DOUBLE JEOPARDY

       In his first issue, DeLeon asserts that his convictions for both aggravated assault

and robbery constitute double jeopardy. See U.S. CONST., amends. V, XVI. The Fifth

Amendment guarantee against double jeopardy protects against a second prosecution

for the same offense after a conviction or an acquittal. N. Carolina v. Pearce, 395 U.S.

711, 717 (1969); see Benton v. Maryland, 395 U.S. 784, 787 (1969) (explaining that the

Fifth Amendment guarantee against double jeopardy is enforceable against the states

through the Fourteenth Amendment). This guarantee also protects against multiple

punishments for the same offense. Pearce, 395 U.S. at 717. DeLeon claims that he is

being punished twice for a single offense against the same victim in the same episode;

thus, it is the latter protection that DeLeon asserts here. See id.

       DeLeon raises his double jeopardy claim for the first time on appeal. Generally, a

defendant bears the burden of preserving a double jeopardy objection at or before the

time the issue of his guilt is submitted to the finder of fact. See Gonzalez v. State, 8

S.W.3d 640, 642 (Tex. Crim. App. 2000) (en banc).             However, because of the

fundamental nature of double jeopardy protections, an appellant is excused from the

preservation requirement when (1) the undisputed facts show the double jeopardy

violation is clearly apparent on the face of the record, and (2) enforcement of the usual

                                             4
rules of procedural default serves no legitimate state interest. See Langs v. State, 183

S.W.3d 680, 687 (Tex. Crim. App. 2006); Gonzalez, 8 S.W.3d at 643. DeLeon must

satisfy both prongs of this test in order to raise his complaint for the first time on appeal.

Long v. State, 130 S.W.3d 419, 424 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

And, as to the first prong, the critical inquiry is whether the record before the reviewing

court clearly reflects a double jeopardy violation. See id.

       Separate offenses constitute the same offense for purposes of double jeopardy

when each element of the first offense is identical to each element of the second offense.

Blockburger v. United States, 284 U.S. 299, 304 (1932). In Bigon v. State, the Texas

Court of Criminal Appeals broadened a double-jeopardy challenge when it held that

"[u]nder the cognate-pleadings approach . . . , double-jeopardy challenges should be

made even to offenses that have differing elements under Blockburger, if the same 'facts

required [to establish the commission of the offense charged]' are alleged in the

indictment." 252 S.W.3d 360, 370 (Tex. Crim. App. 2008) (quoting Hall v. State, 225

S.W.3d 524, 536 (Tex. Crim. App. 2007)).

       Here, the aggravated assault indictment alleged that on or about June 25, 2008,

DeLeon,

       intentionally, knowingly[,] or recklessly caused serious bodily injury to
       Michael Givens by striking and running over the said Michael Givens with a
       trailer towed behind a Chevrolet Suburban, and said Chevrolet Suburban
       with towed trailer was then and there a deadly weapon in the manner in
       which said Chevrolet Suburban with trailer was then and there being used it
       was capable of causing death or serious bodily injury.

See TEX. PENAL CODE ANN. § 22.02. The robbery indictment alleged that on or about

June 25, 2003, DeLeon, "while in the course of committing theft of property and with intent

to obtain or maintain control of said property, intentionally, knowingly, or recklessly
                                          5
caused bodily injury to Michael Givens by striking the said Michael Givens and knocking

him from a moving vehicle." See id. § 29.02.

        The two offenses for which DeLeon was convicted do not involve identical

elements.     See Blockburger, 284 U.S. at 304.              Moreover, the two offenses do not

involve the same facts required to establish the commission of the offenses

charged—one offense involves DeLeon running over Givens, and the other involves

DeLeon striking Givens and knocking him from a moving vehicle.                        See Bigon, 252

S.W.3d at 370. Therefore, the record before this reviewing court does not clearly reflect

a double jeopardy violation. See Langs, 183 S.W.3d at 687; Gonzalez, 8 S.W.3d at 643;

Long, 130 S.W.3d at 424. Therefore, because DeLeon did not object at trial, he is not

excused from the preservation requirement and has forfeited his right to raise his double

jeopardy claim for the first time on appeal. 2 See Langs, 183 S.W.3d at 687. We

overrule DeLeon's first issue.

                                         III. DUE DILIGENCE

        By his second issue, DeLeon contends that the State failed to show that it

exercised due diligence in notifying him of the revocation motion and the arrest warrant

when the Department knew he was living in Hawaii. DeLeon asserts that when he raised

this contention at the revocation hearing, the State offered nothing to show why it did not

attempt to locate him for over four years after the first motion to revoke was filed.

        Once a defendant raises due diligence in a revocation proceeding, the State must

prove by a preponderance of the evidence that due diligence was used in executing the
        2
         Because DeLeon must satisfy both prongs of the test set out in Langs v. State in order to raise
double jeopardy for the first time on appeal, we need not address the second prong—whether the
enforcement of the usual rules of procedural default would serve no legitimate interest in this revocation
proceeding. See 183 S.W.3d 680, 687 (Tex. Crim. App. 2006); Long v. State, 130 S.W.3d 419, 424 (Tex.
App.—Houston [14th Dist.] 2004, no pet.).
                                                    6
capias and in holding a hearing on the motion to revoke. Peacock v. State, 77 S.W.3d

285, 287 (Tex. Crim. App. 2002). However, "the due diligence requirement does not

apply if the defendant is arrested within the community supervision period." Ballard v.

State, 126 S.W.3d 919, 921 (Tex. Crim. App. 2004) (holding that the trial court correctly

denied the motion to dismiss the revocation proceedings challenging due diligence

because the defendant was arrested before the community supervision period expired);

see also Rangel v. State, No. 13-02-00567-CR, 2005 Tex. App. LEXIS 2636, at *2 (Tex.

App.—Corpus Christi Apr. 7, 2005, no pet.) (mem. op., not designated for publication)

(concluding that when Rangel was arrested within the community supervision period, the

doctrine would not be applicable even if properly raised).

       In this case, DeLeon was given the conditions of his community supervision on

December 10, 2003, and following his release from the TDCJ on October 17, 2005, the

Department resumed supervision on his robbery case.           The hearing on the State's

motion to revoke was held on September 10, 2010, well before DeLeon's community

supervision term would have expired. See Ballard, 126 S.W.3d at 921. Therefore,

DeLeon's due diligence argument fails, and we overrule his second issue.

                      IV. REVOCATION OF COMMUNITY SUPERVISION

       In his third issue, DeLeon complains that the trial court abused its discretion when

it revoked his community supervision for the following reasons: (1) an arrest he allegedly

failed to report within two Department working days; (2) other violations that were not

alleged in the State's motion to revoke; and (3) failure to pay restitution, court costs, and

fines, absent a showing that he had the ability to make such payments or that his failure

was intentional.

                                             7
       We review an order revoking community supervision and adjudicating guilt by

determining whether the trial court abused its discretion in determining whether the

defendant violated the terms of his community supervision. Rickels v. State, 202 S.W.3d

759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.

1984) (en banc); see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b). A trial court abuses

its discretion if it acts without reference to any guiding rules or principles. Montgomery v.

State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). A single violation of a community

supervision condition is sufficient to support the trial court's decision to revoke probation.

Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); Herrera v. State, 951

S.W.2d 197, 199 (Tex. App.—Corpus Christi 1997, no pet.).

       The trial court heard the State's amended motion to revoke community supervision

and accepted DeLeon's pleas of true to the allegations contained in the first seven

paragraphs of the State's amended motion to revoke. The State abandoned the eighth

allegation. The trial court admitted the State's exhibits in support of DeLeon's pleas of

true and heard DeLeon's testimony. After hearing the evidence, the trial court found

DeLeon violated the terms and conditions of his community supervision and revoked his

probation.

       On appeal, DeLeon challenges five of the seven alleged violations to which he

pleaded true. He does not challenge the two remaining allegations—his failure to report

to the supervision officer as ordered by the court and his failure to report a change of

address within two Department working days.              DeLeon's pleas of true to the

unchallenged alleged violations are sufficient to support the trial court's revocation of his

community supervision. See Moore, 605 S.W.2d at 926; Herrera, 951 S.W.2d at 199.

                                              8
We, therefore, conclude that the trial court did not abuse its discretion in granting the

State's motion to revoke DeLeon's community supervision. Accordingly, we overrule

DeLeon's third issue.

                         V. INEFFECTIVE ASSISTANCE OF COUNSEL

       In his fourth issue, DeLeon complains of ineffective assistance of counsel. He

contends that counsel was ineffective for advising him "to plead true [to all of the alleged

violations] when the facts show that some were not, in fact, true." DeLeon asserts that

he should not have pleaded true to the allegation that he failed to make payments

because the evidence established that he made a reasonable effort to pay, that his failure

was unintentional, and that he had an affirmative defense because he was financially

unable to pay the "exorbitant" restitution fees.

       To show ineffective assistance of counsel, a defendant must demonstrate that:

(1) counsel's performance fell below an objective standard of reasonableness; and (2)

there is a reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687-88, 694 (1984). In this case, even were we to conclude that counsel's alleged

advice to DeLeon that he should plead true to the financial violations fell below an

objective standard of reasonableness, we would not conclude that but for such error, the

result of the proceeding would have been different. See id.

       DeLeon's pleas of true to the two non-financial allegations, about which he does

not now complain, were sufficient to support the trial court's revocation of his community

supervision. See Moore, 605 S.W.2d at 926; Herrera, 951 S.W.2d at 199. Therefore,

had counsel advised DeLeon to plead not true to the five remaining alleged violations, the

                                              9
result of the proceeding would have been the same. See Strickland, 466 U.S. at 687-88,

694. Furthermore, DeLeon appears to argue that the trial court imposed a maximum

sentence because he pleaded true to all violations. However, because he does not

develop his argument for this contention, and does not provide citations to authorities and

to the record in support of this argument, it is inadequately briefed. See TEX. R. APP. P.

38.1(i) (requiring an appellant's brief to contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record).

Accordingly, we overrule DeLeon's fourth issue.

                                    VI. SENTENCING

       DeLeon contends by his fifth and final issue that the trial court improperly

cumulated his sentences when it revoked his community supervision and sentenced him

to ten years in prison for robbery, after he had already completed two years in prison on

his conviction for aggravated assault. DeLeon asserts that the cumulated sentence of

twelve years resulted in an unlawful punishment for offenses arising out of the same

criminal episode.

       Texas statutes give a trial court discretion to order that a defendant's sentences

run consecutively under most circumstances. See TEX. CODE CRIM. PROC. ANN. art.

42.08(a) (West Supp. 2011); TEX. PENAL CODE ANN. § 3.03 (West Supp. 2011).

Therefore, we review a decision regarding consecutive sentences under an abuse of

discretion standard. See Macri v. State, 12 S.W.3d 505, 511 (Tex. App.—San Antonio

1999, pet. ref'd).

       In this case, DeLeon contends that the trial court abused its discretion when it

imposed consecutive sentences where the law—penal code section 3.03—required

                                            10
concurrent sentences. See TEX. PENAL CODE ANN. § 3.03 (providing that "[w]hen an

accused is found guilty of more than one offense arising out of the same criminal episode

prosecuted in a single criminal action, a sentence for each offense for which he has been

found guilty shall be pronounced[,]" and the sentences shall run concurrently, subject to

certain provisions not relevant here.); Millslagle v. State, 150 S.W.3d 781, 784 (Tex.

App.—Austin 2004, pet. dismissed) (referring to section 3.03(a) as an exception to the

rule allowing trial court discretion). We agree, but for a different reason.

       Our review of the record reveals three judgments entered in this case, two on

December 10, 2003 and one, the judgment from which DeLeon appeals, on September

30, 2010. The first judgment found DeLeon guilty of aggravated assault and sentenced

him to two years in prison. The second judgment found DeLeon guilty of robbery and

sentenced him to ten years in prison, suspended and probated for ten years. The third

judgment found DeLeon violated the terms of his community supervision for the robbery

conviction and sentenced him to ten years in prison. Importantly, all three judgments

included the following language:       "This sentence shall run concurrently unless

otherwise specified."      We find no language in any of the judgments specifying

otherwise—that the sentence shall run consecutively with any other sentence. Because

it is clear from the language of each judgment that each sentence was to run concurrently,

we conclude that the trial court abused its discretion in allowing the entry of a judgment

that, in effect, cumulated the sentences—a judgment that did not credit DeLeon for the

time he spent in prison serving his two-year sentence for the aggravated assault

conviction, which in this case was from December 10, 2003 to October 16, 2005. We

sustain DeLeon's fifth issue.

                                            11
                                    VII. CONCLUSION

       We affirm, in part, the trial court's judgment revoking DeLeon's community

supervision and sentencing DeLeon to confinement in the TDCJ. We reverse, in part, to

the extent the judgment does not give DeLeon credit for time served in prison for his

aggravated assault conviction, and remand to the trial court with instructions to reform the

judgment to reflect any credit for time served in accordance with this opinion. See

Joseph v. State, 3 S.W.3d 627, 643-44 (Tex. App.—Houston [14th Dist.] 1999, no pet.).



                                                               NELDA V. RODRIGUEZ
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 15th
day of March, 2012.




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