
                                          NO. 07-10-0119-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL B

                                           FEBRUARY 7, 2011
                                    _____________________________




                                        CHARLES RONALD GATLIN,


                                                Appellant
                                                  v.


                                         THE STATE OF TEXAS,


                                                Appellee
                                    _____________________________

                            FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

                              NO. 5800; HONORABLE LEE WATERS, PRESIDING

                                    _____________________________


                                               Opinion
                                    _____________________________



Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Charles Ronald Gatlin challenges the trial court’s order revoking his probation and  sentencing
him to ten years confinement for the offense of aggravated sexual assault.  In doing so, he  contends
that the sentence is void because a prior adjudication of guilt was rendered outside of the  original
probationary period.  We overrule the issue and affirm the judgment.

      Background
      On November 22, 2000, appellant was placed on deferred adjudication  probation  for  six  years
pursuant to a plea bargain agreement.  The State subsequently sought to  proceed  with  adjudication.
On June 6, 2001, the trial court not only continued to defer the adjudication  of  appellant’s  guilt
but also extended his probation to June 5, 2011, per an agreement  of  the  parties.   In  2008,  the
State again moved to adjudicate appellant’s guilt.  The trial court granted the motion and  convicted
him of aggravated sexual assault.  Then,  the sentence was  suspended,  and  appellant  was  assessed
probation for five years.  Eventually, appellant’s probation was revoked, which resulted  in  a  ten-
year prison sentence.
      Failure to Make Finding of Endangerment to the Public
      Appellant argues that at the time his community supervision was  initially  extended  in  2001,
the trial court did not affirmatively find that the failure to extend his probationary  period  would
endanger the public; thus, it allegedly could not extend his probation.  We disagree.
      According to statute, a trial court  may  extend  the  community  supervision  of  a  defendant
granted deferred adjudication for aggravated  sexual  assault  at  any  time  during  the  period  of
community supervision.  Tex. Code Crim. Proc. Ann. art. 42.12 §22A(a) (Vernon Supp. 2010).   However,
doing so depends upon whether at a hearing it “determines that the  defendant  has  not  sufficiently
demonstrated a commitment to avoid future criminal behavior and that the  release  of  the  defendant
from supervision would endanger the public . . . . ”  Id. §22A(b).   Appellant  argues  that  such  a
determination must be made manifest by an actual affirmative finding.  And, because no  such  finding
was uttered or executed by the trial judge here, it could neither extend  his  community  supervision
or ultimately sentence him to prison after the original  term  of  supervision  expired.   Sadly,  he
cites no authority supporting that conclusion.  Nor did we find any.   This may be because the  plain
wording of the statute in question says nothing about a “finding” or the trial court’s  execution  of
one.  It simply permits the modification of the probationary term if the court “determines” that  the
prerequisites exist.  And, while a finding would encompass a determination, a determination does  not
necessarily encompass a “finding,” as the latter term is understood in legal jargon.
      Moreover, when the legislature has wanted the trial court to  execute  an  affirmative  finding
after making a particular determination, it has so specified.  One need only  read  articles  42.012,
42.013, 42.014, and 42.015 of the Texas Code of Criminal Procedure to realize  that.   Through  each,
we are told that if the trial court “determines” a particular fact  exists,  it  must  also  make  an
“affirmative finding” of that fact.  Id.; see Cameron v. Terrell & Garrett,  Inc.,  618  S.W.2d  535,
540 (Tex. 1981)  (noting one rule of statutory construction to  be  that  the  legislature’s  use  of
particular verbiage in one part of a statute while omitting it from another evinces  an  intent  that
the provision omitting the word should not be read as including it).   Given  that  judges  lack  the
authority to add in what the legislature left out of a statute, we conclude that §22A(b)  imposes  no
obligation upon a trial court to make affirmative findings relating to the existence of  the  factors
expressed in that statute.
      Finally, appellant does not argue that the trial court lacked sufficient evidentiary  basis  to
determine that the criteria of §22A(b) were met.  So, we need not address that.
      Accordingly, we affirm the judgment.

                                        Brian Quinn
                                        Chief Justice
Publish.
