                                                                               PD-1091-15
                                                              COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                             Transmitted 9/16/2015 2:42:21 PM
                                          ORAL ARGUMENT      REQUESTED
                                                              Accepted 9/22/2015 10:45:20 AM
                                                                               ABEL ACOSTA
                          CAUSE NO. PD-1091-15                                         CLERK


                IN THE COURT OF CRIMINAL APPEALS
                     FOR THE STATE OF TEXAS

                                  *****

           BEDROS NOBAR MINASSIAN, Petitioner / Appellant

                                    VS.

              THE STATE OF TEXAS, Respondent / Appellee

                                  *****

             On Petition from a Decision of the Court of Appeals
               for the Fifth District of Texas, Dallas Division
                        in Cause No. 05-13-00936-CR


               PETITION FOR DISCRETIONARY REVIEW




                             THOMAS G. PAPPAS
                             BURLESON PATE & GIBSON, L.L.P.
                             TEXAS BAR CARD NO. 15455300

                             900 Jackson Street, Suite 330
                             Dallas, Texas 75202
                             Telephone: (214) 871-4900
September 22, 2015
                             Facsimile: (214) 871-7543
                             Email: tpappas@bp-g.com

                             COUNSEL FOR PETITIONER/APPELLANT
                             BEDROS NOBAR MINASSIAN
                                           TABLE OF CONTENTS

                                                                                                                       Page

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Identity of Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Court of Appeals Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Grounds for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Reason for Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Certificate of Compliance .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Appendix “A”. . . . . . . . . . . . . . . . . . . . Opinion and Judgment dated July 16, 2015




                                                               i
                             IDENTITY OF PARTIES


Bedros Nobar Minassian, Petitioner

ATTORNEY FOR PETITIONER
Thomas G. Pappas
Burleson, Pate & Gibson, L.L.P.
900 Jackson Street, Suite 330
Dallas, Texas 75202

ATTORNEYS FOR STATE

Appellate attorneys:
Susan Hawk
Michael Casillas
Dallas County District Attorney's Office
133 N. Riverfront Blvd., LB 19
Dallas, Texas 75207

Revocation hearing attorneys:
Craig Watkins
David Bunger
Dallas County District Attorney's Office
133 N. Riverfront Blvd., LB 19
Dallas, Texas 75207

Lisa C. McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711

PRESIDING JUDGE
Honorable Teresa Hawthorne
203rd Criminal District Court
133 N. Riverfront Blvd., 7th Floor
Dallas, Texas 75207




                                           ii
                                        INDEX OF AUTHORITIES

Cases:

Cobb v. State, 851 S.W.2d 871 (1993) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

Johnson v. State, 386 S.W.3d 347 (Tex.App.-Amarillo 2012, no pet.). . . . 2, 3, 4, 5


Statutes and Rules:

Texas Rules of Appellate Procedure

Rule 4.1 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Rule 68.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv




                                                             iii
              STATEMENT REGARDING ORAL ARGUMENT

      The Petitioner requests oral argument.

                          STATEMENT OF THE CASE

      The Petitioner was charged by Indictment with the offense of Felony Driving

While Intoxicated (DWI 3rd). The Petitioner pled guilty on July 8, 2008 and was

sentenced to five (5) years in the Texas Department of Criminal Justice probated for

a period of ten (10) years. On June 27, 2012, a Motion to Revoke Probation was

filed. Subsequent to that, four (4) Amended Motions to Revoke Probation were filed.

The latest was filed on March 5, 2013. (CR at 58-59). On March 29, 2013, the

hearing was held on the most recent Motion to Revoke. The Petitioner pled not true.

The State proceeded on two (2) of the allegations. The Court found the allegations

to be true, revoked the Petitioner’s probation and sentenced him to nine (9) years in

the Texas Department of Criminal Justice. (CR at 60-64).

                 STATEMENT OF PROCEDURAL HISTORY

      The Court of Appeals for the Fifth District of Texas at Dallas in an Opinion

dated July 16, 2015 affirmed the revocation of the Petitioner’s community

supervision and sentence of nine (9) years in the Texas Department of Criminal

Justice. A Petition for Discretionary Review is timely filed if a request for extension

is filed by August 17, 2015 and the Petition for Discretionary Review is filed by

September 16, 2015. Rules 4.1 and 68.2(a) of the Texas Rules of Appellate

Procedure.

                                          iv
                                               ORAL ARGUMENT REQUESTED

                             CAUSE NO. PD-1091-15

                   IN THE COURT OF CRIMINAL APPEALS
                        FOR THE STATE OF TEXAS

                                      *****

            BEDROS NOBAR MINASSIAN, Petitioner / Appellant

                                         VS.

                  THE STATE OF TEXAS, Respondent / Appellee

                                      *****

              On Petition from a Decision of the Court of Appeals
                for the Fifth District of Texas, Dallas Division
                           in Cause No. 05-13-00936


                  PETITION FOR DISCRETIONARY REVIEW

      COMES NOW, BEDROS NOBAR MINASSIAN, Petitioner herein, and

Appellant before the Court of Appeals for the Fifth District of Texas at Dallas, Texas,

and seeks discretionary review from this Honorable Court from an opinion affirming

his conviction.

                        COURT OF APPEALS OPINION

      The Court of Appeals reviewed the transcript and some of the evidence (the

Petitioner’s “probation file” was offered and allowed into evidence over the

Petitioner’s objection, but was not made part of the appellate record) of the Trial

Court’s proceeding and determined that the State met its burden of proving that the

                                          1
Petitioner violated the terms of his community supervision.

                           GROUNDS FOR REVIEW

      1.    The Court of Appeals erred in upholding the Trial Court’s finding where

            there was no evidence that the person before the Court was the same

            person that was placed on probation.

      2.    The Court of Appeals erred in upholding the Trial Court’s finding that

            the State met its burden of proving that the Petition violated the terms

            of his community supervision by traveling outside Dallas County

            without having first obtained written permission by admitting “into”

            evidence an unmarked probation file under the guise of a custodian of

            the business record exception to the hearsay rule.

                            REASONS FOR REVIEW

      The Petitioner’s probation was without sufficient proof of violation of his

conditions of probation. He was sentenced to nine (9) years in prison.

      On the issue of the Petitioner’s identity, the Appellate Court failed to properly

apply the law as set out by the Court of Criminal Appeals in Cobb v. State, 851

S.W.2d 871 (1993) in that the Appellate Court failed to apply a no-evidence standard

to proof of the Petitioner’s identity. Johnson v. State, 386 S.W.3d 347 (Tex.App.-

Amarillo 2012, no pet.). The Court improperly relied on the wrong standard from

Johnson (waiver for failure to assert) when the proper Johnson standard clearly

supports the Petitioner’s claim of no evidence.

                                          2
      The Appellate Court failed to properly apply the law as it applies to the hearsay

testimony of a community supervision officer (Mr. Pacheco) who had no knowledge

of the Petitioner except from the duplicates of a file not properly authenticated or

offered into evidence. Since improperly admitted hearsay operates as having no

evidentiary value, the State failed to meet its burden of proof on violation of out of

county travel standard.

                                    ANALYSIS

                                          I.

      The Appellate Court ruled that “the State must still prove the probationer’s

identity but failure to do so will not result in error on appeal unless the probationer

raises the issue at trial.” Johnson v. State, 386 S.W.3d 347, 350 (Tex.App.-Amarillo

2012, no pet.). However, the Appellate Court relied on the wrong legal standard.

The proper standard is a “no evidence” standard. Where, as here, the Trial Court had

no evidence that the Defendant before it was the same Defendant who was placed on

probation and given the Conditions of Probation in 2008. The proper Appellate Court

ruling should be reversal. Especially where the Court of Criminal Appeals explicitly

addresses the necessity of proving the violation. Cobb v. State, 851 S.W.2d 871

(1993).

      The Appellate Court cites Johnson as standing for the premises that failure to

raise identity waives the issue. That is not accurate. Johnson states “the record here,

therefore contains evidence to support the Trial Court’s conclusion that the State

                                          3
established by a preponderance of the evidence that the appellant is the individual

who was placed on community supervision by order signed April 23, 2003, for

murder in trial court cause number 44,703-B ... The Trial Court did not abuse its

discretion by finding that a preponderance of the evidence established that appellant

was the individual subject to the terms and conditions of the 2003 order placing him

on community supervision.”

      There was no evidence at the revocation hearing to establish that the man in

court is the same man given the conditions of probation and placed on probation in

2008. A comparison between the evidence presented on identity on Johnson and the

absence of identity evidence in the Petitioner’s case highlights how fundamentally

flawed the Trial Court’s ruling was:

      1.     In Johnson, the Court addressed the defendant, who admitted he was the

             same man who was placed on probation.

             “Court:      And Mr. Johnson, are you the same Lavalle Raphael

                          Johnson who was here originally on April 23rd of 2003

                          and pled guilty to murder?

             Defendant: Yes sir.”

In the Petitioner’s case, there are no such admissions.

      2.     In Johnson, the defendant’s probation officer testified and identified the

             defendant as the person he supervised. In the Petitioner’s case, the State


                                          4
            did not bring a community supervision officer who had any knowledge

            of the case or who had ever supervised the Petitioner. The witness was

            only familiar with the name of the Petitioner. (RR 3 at 10).

      3.    In Johnson, there were originals of documents introduced into the file.

            In the Petitioner’s case, the State was only able to produce duplicates

            (RR 3 at 11) and the file was never properly authenticated, offered into

            evidence, or made a part of the record.

                                        II.

      A probation file was admitted into evidence over the Petitioner’s objection

when that file was not properly authenticated or marked or even offered into

evidence. Any testimony from that file would be inadmissible hearsay which has no

evidentiary value.

           Q:   (By Mr. Bunger) Sir, are you the custodian of the

                business records for the Dallas County Community

                Service Supervision and Corrections Department?

           A:   (By Mauricio Pacheco) I am.

           Q:   And is this the regular course of business of Dallas

                County to keep these kinds of records?

           A:   It is.

           Q:   And you have before you the actual file on Bedros


                                        5
      Minassian; is that correct?

A:    That’s correct.

Q:    Are you familiar with Mr. Minassian?

A:    Just the name only.

Q:    Name only?

A:    Yes.

Q:    And did an employer, a representative of Dallas County

      CSCD make these records as part of their course of

      business in the Community Service Department? Is that

      correct?

A:    Yes, that’s correct.

Q:    And were records made at or near the time the events

      described therein occurred?

A:    Yes.

Q:    And did the person making the records or entries have

      actual knowledge of these events as part of the conduct of

      the business of doing?

Mr. Pappas: Well, Your Honor, I’m going to object. He doesn’t

             know what they did or didn’t have actual

             knowledge of. He doesn’t know anything other


                               6
              than the name of the defendant here. That calls for

              speculation on the part of this witness.

Mr. Bunger:         Your Honor, it’s a standard to get the

                    evidence in the file that’s used to keep up

                    with what’s going on with Minassian’s case

                    as it’s being maintained throughout his term

                    of probation.

The Court: Objection overruled.

Mr. Bunger:         Thank you, Your Honor.

Q:   (By Mr. Bunger) Now, are these duplicates or originals

     in the documents there in the file?

A:   Specifically what are you talking about?

Q:   The content of that file, is that the original documents or

     duplicates?

A:   Duplicates.

Q:   Okay. Do you know where the originals may be kept?

A:   Do not. Court jacket perhaps but I’m not sure where they

     are right now.

Q:   Is there anything in the file that indicates written

     permission to travel outside of Dallas County?


                                7
A:   No.

Q:   Is there any – are there any identification of vehicles as

     part of his conditions under paragraph – I believe it’s

     paragraph Q – that indicate what vehicles Mr. Minassian

     has that are equipped with the interlock device, is there

     any record in there that indicates those vehicles?

A:   I have no knowledge of that.

Q:   You have no knowledge of that. So you can’t testify as

     to what – any vehicles Mr. Minassian has reported to his

     probation officer as part of his record as to what vehicles

     may have or may not have interlock devices on it?

A:   That’s correct.

Q:   And you have no record in which he has been granted

     permission to leave Dallas County; is that correct?

A:   That’s correct.

Q:   Is it a condition of probation that he not leave Dallas

     County?

A:   It is a condition.

Q:   Is it also a condition of his – under his probation terms,

     it was July 8, 2008, I believe, that he not operate a motor


                              8
                  vehicle without a deep lung breath analysis mechanism?

          A.      That’s correct.

          Q:      Is that correct?

          A:      That’s correct.

(RR 3 at 9-12).

          Q:      (By Mr. Pappas) Now, a couple questions. At some point

                  between 2008 and today, Dallas County adult probation

                  went online and began to keep their records or probation

                  officer notes online on the computer. Is that correct?

          A:      (By Mr. Pacheco) I’m not sure about the exact date but I

                  would say, yes.

          Q:      Okay. Andy you have before you a file there; is that

                  correct?

          A:      That’s correct.

          Q:      Okay. And do you print out the things that are on line

                  and add those to the file or not?

          A:      I do not personally. I just look at the computer for notes.

          Q:      And you don’t have any independent knowledge of this

                  case?

          A:      I do not.


                                           9
           Q:     You just were given the guy’s name and told to pull his

                  probation file?

           A:     Pretty much, yes.

           Q:     So you can’t tell us whether what’s on the computer is

                  also contained on – what’s in the file?

           A:     I could not.

(RR 3 at 13).

      Without the file that was discussed, there is no way to know exactly what was

done or not done by the Community Supervision Officer vis-a-vis its Probationer.

What can be said with certainty is that the testifying witness, Mr. Pacheco, had no

personal or first-hand knowledge regarding the Petitioner. Therefore, his hearsay

testimony has no evidentiary value as to any of the elements of the alleged violation

of traveling outside the county. Merely because the probation revocation proceedings

are not a jury trial does not excuse the State or the Trial Court from following

evidentiary rules and the law. Mr. Pacheco gave hearsay from “duplicates” (unknown

originals) in a probationer’s file, a file that was never offered into evidence, much less

marked and numbered as an exhibit. Further, that file appeared to be, in part, a paper

file and, in part, a computer file. Finally, nothing from that file made its way into the

record for the Trial Court or the Appellate Court to review. As such, Mr. Pacheco’s

improper hearsay testimony can only be treated as having no evidentiary value.


                                           10
Therefore, the State’s proof of a violated probation condition fails as a matter of law

under the no-evidence standard.

      This Court must insist by its rulings that courts follow rules and that people not

be sent to prison when the courts fail to follow those rules. A review of the Appellate

Court’s ruling will clarify and reinforce a trial court’s necessity of following the law

in probation revocation proceedings.

                              PRAYER FOR RELIEF

      The Petitioner respectfully prays that this Court grant the Petition for

Discretionary Review, after briefing and argument, reverse the Court of Appeals’

opinion, and reinstate his probation.

                                        Respectfully submitted,

                                        /s/ Thomas G. Pappas
                                        _______________________________
                                        THOMAS G. PAPPAS
                                        TEXAS BAR CARD No.15455300
                                        BURLESON PATE & GIBSON, L.L.P.

                                        900 Jackson Street, Suite 330
                                        Dallas, Texas 75202
                                        Telephone: (214) 871-4900
                                        Facsimile: (214) 871-7543
                                        Email: tpappas@bp-g.com

                                        COUNSEL FOR PETITIONER /
                                        APPELLANT BEDROS NOBAR
                                        MINASSIAN




                                          11
                            CERTIFICATE OF SERVICE

      This will certify that a copy of the foregoing was delivered via electronic filing
and/or certified mail, return receipt requested to the following:

Susan Hawk                                              Lisa C. McMinn
Michael Casillas                                        State Prosecuting Attorney
Craig Watkins                                           P.O. Box 13046
David Bunger                                            Austin, Texas 78711
Dallas County District Attorney's Office
133 N. Riverfront Blvd., LB 19
Dallas, Texas 75207

DATED the 16th day of September, 2015.

                                          /s/ Thomas G. Pappas
                                          _______________________________
                                          THOMAS G. PAPPAS


                         CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this Brief contains 2,085 words (excluding the caption, identity of parties, table of
contents, table of authorities, signature, proof of service, certification, and certificate
of compliance). This is a computer-generated document created in WordPerfect,
using 14-point typeface for all text. In making this Certificate of Compliance, I am
relying on the word count provided by the software used to prepare the document.

DATED the 16th day of September, 2015.

                                          /s/ Thomas G. Pappas
                                          _______________________________
                                          THOMAS G. PAPPAS




                                            12
APPENDIX “A”
Affirmed as Modified; Opinion Filed July 16 , 2015.




                                           In The
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                    No. 05-13-00936-CR

                        BEDROS NOBAR MINASSIAN, Appellant

                                             V.

                            THE STATE OF TEXAS, Appellee

                     On Appeal from the 194th Judicial District Court
                                  Dallas County, Texas
                          Trial Court Cause No. F-0854609-P

                           MEMORANDUM OPINION
                          Before Justices Lang, Brown and Whitehill
                                   Opinion by Justice Lang

       This is an appeal from a judgment revoking community supervision. In July 2008,

Bedros Nobar Minassian was convicted of third degree felony driving while intoxicated and

placed on community supervision for five years. See TEX. PENAL CODE ANN. §§ 49.04(a),

49.09(b)(2) (West Supp. 2014). On the State’s motion, the trial court revoked Minassian’s

community supervision and sentenced him to nine years’ imprisonment.          In two issues,

Minassian asserts the State failed to meet its burden of proving he violated the terms of his

community supervision. We affirm the trial court’s judgment.
                                                         I. BACKGROUND

           The State moved to revoke Minassian’s community supervision in June 2012 based on

alleged violations in February 2012 of certain terms of community supervision. The State

amended its motion four times and proceeded at the revocation hearing on allegations in its

March 3, 2013 motion that Minassian violated, “on or about February 12, 2012 through February

19, 2012,” condition (g), requiring, in relevant part, he obtain written permission from the trial

court or supervising officer before traveling outside Dallas County, and violated, “on or about

February 12, 2012 and the week to follow,” condition (q), requiring he not drive unless the car is

equipped with a deep lung breath analysis mechanism.1 The State did not call Minassian’s

supervision officer as a witness. However, Mauricio Pacheco, the custodian of business records

for the community service supervision and corrections department testified that the terms of

community supervision included Minassian not travel outside Dallas County without written

permission and that he not drive a car that was not equipped with a deep lung breath analysis

mechanism or interlock device. Pacheco also testified nothing in Minassian’s paper or electronic

file reflected Minassian had obtained written permission to travel outside the county, but he

could have received verbal permission.

           The State also called Secret Service special agent Troy Sarria and Minassian’s friends

James Epstein and Anna Saenz-Taylor. These witnesses testified they had seen Minassian

driving without the required interlock device on more than one occasion. Sarria specifically

recalled seeing Minassian drive without the device in 2012 on a day when it was “warm

outside,” and Epstein specifically recalled seeing Minassian drive without the device in February

2012. According to Epstein, he and Minassian drove from Chicago to Dallas during that month.

     1
        The State also alleged he violated condition (a), prohibiting him from violating state laws, condition (j), requiring him to pay community
supervision fees, and condition (o), prohibiting him, in part, from consuming alcohol. The parties do not dispute the State abandoned these
allegations.



                                                                      –2–
          Minassian did not call any witnesses. but offered, without objection, the district clerk’s

computer log of the trial court’s activity as an exhibit. This exhibit reflected that on January 5,

2010, the trial court signed an “interlock removal order.”2

                                                II. MOTION TO REVOKE

          Minassian’s two issues assert the State’s proof had “numerous holes” and did not satisfy

the required preponderance of the evidence standard. Specifically, he contends the State failed to

(1) ask the trial court to take judicial notice of its file; (2) establish he was the same person who

had been convicted and placed on probation; (3) establish he was served with the community

supervision terms or “even what [those terms] were;” and (4) establish any violation occurred

during the alleged time frame. He further asserts, with respect to the allegation that he violated

condition (q) by driving without the required interlock device, that the district clerk’s log of the

trial court’s activity specifically showed the trial court ordered removal of the device. With

respect to the allegation that he violated condition (g), he asserts also that the State failed to

“offer the probation file into evidence or bring[] a supervision officer who had actually

supervised [his] probation.”

                                      A. Applicable Law and Standard of Review

          An appellate court reviews a trial court’s order revoking community supervision for

abuse of discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). Because the

trial judge is the sole judge of the witnesses’ credibility and the weight to give the evidence, in

determining whether the trial court abused its discretion, an appellate court reviews the evidence

in the light most favorable to the order. See id.; Lee v. State, 952 S.W.2d 894, 897 (Tex. App.—

Dallas 1997, no pet.) (en banc) (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App.


     2
       This order is contained in the clerk’s record and states removal of the interlock device was authorized because Minassian’s car “was
inoperable.”



                                                                  –3–
[Panel Op.] 1981)). An appellate court will conclude the trial court abused its discretion if the

State failed to meet its burden of proving by a preponderance of the evidence that the probationer

violated the terms of community supervision. Lee, 952 S.W.2d at 897. The State meets its

burden when the greater weight of the credible evidence creates a reasonable belief that the

probationer violated the terms of community supervision during “a time period anterior to the

filing of the motion to revoke and within the period of probation.” See Rickels v. State, 202

S.W.3d 759, 763 (Tex. Crim. App. 2006) (quoting Scamardo v. State, 517 S.W.2d 293, 298

(Tex. Crim. App. 1974)); Diaz v. State, 516 S.W.2d 154, 156 (Tex. Crim. App. 1974). Because

the execution of the sentence of a probationer is delayed contingent upon the successful

completion of the community supervision conditions, a probation revocation hearing is an

extension of the original sentencing hearing, and proof of the judgment of conviction and terms

of community supervision is unnecessary. Cobb v. State, 851 S.W.2d 871, 873-74 (Tex. Crim.

App. 1993). The State must still prove the probationer’s identity, but failure to do so will not

result in error on appeal unless the probationer raises the issue at trial. Id; Johnson v. State, 386

S.W.3d 347, 350 (Tex. App.—Amarillo 2012, no pet.) (citations omitted). When, as here, the

State’s motion to revoke alleges multiple violations of the terms of community supervision,

proof of any one of the alleged violations is sufficient to support the revocation order. See Smith

v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009).

                                  B. Application of Law to Facts

       Minassian argues the State had to offer his file into evidence or call his supervision

officer in order to establish the terms of community supervision and that he was served with

those terms and establish either of the alleged violations occurred during the time period alleged.

However, the State’s burden was to prove by a preponderance of the evidence that Minassian

violated condition (g) or condition (q) prior to the June 2012 filing of the motion to revoke and

                                                –4–
within the five-year period of probation that began in July 2008. See Smith, 286 S.W.3d at 342;

Diaz, 516 S.W.2d at 156; Lee, 952 S.W.2d at 897.        Viewing the evidence in the light most

favorable to the trial court’s ruling, we conclude the State met its burden. Minassian’s identity

was not at issue at trial, and Pacheco’s and Epstein’s testimonies established Minassian traveled

outside Dallas County without written permission. Their testimony “created a reasonable belief”

that Minassian violated condition (g) of the terms of community supervision and was sufficient

to support the trial court’s order revoking Minassian’s community supervision. We decide

Minassian’s issue challenging the State’s proof with respect to the allegation that he violated

condition (g) against him. In light of this, we do not address his issue challenging the State’s

proof with respect to condition (q). See Smith, 286 S.W.3d at 342.

                           III. MODIFICATION OF JUDGMENT

       We note the judgment incorrectly recites that Minassian pleaded true to the allegations in

the motion to revoke and that the trial court found Minassian violated the conditions of

community supervision as set out in the “State’s Original Motion to Revoke Community

Supervision.” Because an appellate court has the authority to modify an incorrect judgment to

make the record speak the truth, we modify the judgment to reflect Minassian pleaded not true

and was found to have violated the conditions of community supervision as set out in the State’s

March 3, 2013 “Motion to Revoke Community Supervision.” See TEX. R. APP. P. 43.2(b);

Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526,

529-30 (Tex. App.—Dallas 1991, pet. ref’d).




                                              –5–
                                     IV. CONCLUSION

       As modified, we affirm the trial court’s judgment.




                                                    /Douglas S. Lang/
                                                    DOUGLAS S. LANG
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47
130936F.U05




                                              –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

BEDROS NOBAR MINASSIAN, Appellant                     On Appeal from the 194th Judicial District
                                                      Court, Dallas County, Texas
No. 05-13-00936-CR         V.                         Trial Court Cause No. F-0854609-P.
                                                      Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                          Brown and Whitehill participating.

       Based on the Court’s opinion of this date, we MODIFY the trial court’s judgment as
follows:

       (1) in the section entitled “Plea to Motion to Revoke:,” the plea of “TRUE” is
       replaced with “NOT TRUE;” and,

       (2) the statement in the judgment that “The Court FINDS Defendant has violated
       the conditions of community supervision as set out in the State’s ORIGINAL
       Motion to Revoke Community Supervision as follows:

              See attached Motion to Revoke Community Supervision.”

       is replaced with “The Court FINDS Defendant has violated the terms of
       community supervision as set out in the State’s March 3, 2013 Motion to Revoke
       Community Supervision.”

As MODIFIED, we AFFIRM the trial court’s judgment.


Judgment entered this 16th day of July, 2015.




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