                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00361-CR


DIANNIA SHIRLENE OVERSTREET                                          APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Diannia Shirlene Overstreet appeals the trial court’s judgment

adjudicating her guilty of delivery of a controlled substance, revoking her

community supervision, and assessing a sentence of fifteen years’ confinement.

We overrule issue two and a portion of issue one. We sustain the remaining

portion of issue one and modify the trial court’s judgment to delete two revocation



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       See Tex. R. App. P. 47.4.
grounds not supported by the oral pronouncement of sentence and to reflect the

sentence orally pronounced by the trial court. See Tex. R. App. P. 43.2(b).

                               I. BACKGROUND

      On July 23, 2010, Appellant pleaded guilty under a plea-bargain

agreement to delivery of       over   one   gram   but   under   four   grams   of

methamphetamine. The trial court deferred adjudicating Appellant’s guilt and

placed her on community supervision for six years.       Two of the community-

supervision terms required Appellant to (1) perform 300 hours of community

service “at a rate of no less than 8 hours per week if employed and 24 hours per

week if unemployed” (the community-service term) and (2) attend two Narcotics

Anonymous meetings every week and “provide proof of attendance . . . as

directed by the Hood County [community-supervision department]” (the meeting

term). As part of the plea agreement, Appellant affirmed that she understood the

community-supervision terms and conditions, including the community-service

term and the meeting term.

      On October 14, 2010, the State filed a motion to proceed with an

adjudication of Appellant’s guilt.     Appellant pleaded true to the State’s

allegations. Under the State and Appellant’s second plea-bargain agreement,

the trial court continued Appellant’s community supervision but added certain

terms and conditions. Specifically, the trial court ordered Appellant to enter a

substance-abuse facility and remain for no more than one year. The trial court

extended Appellant’s community-supervision period until July 22, 2018.


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Appellant complied with the additional term and was discharged from the

substance-abuse facility on February 16, 2011.

        On May 15, 2012, the State again filed a motion to adjudicate Appellant’s

guilt, alleging that Appellant failed to pay the appropriate fees and fines and

failed to comply with either the community-service term or the meeting term.

Appellant pleaded not true to the allegations in the motion. The trial court held a

hearing on the State’s motion.

        At the hearing, it was shown that Appellant had completed 150.25

community-service hours, but that her last verified service hours occurred on

August 14, 2011.       Further, Appellant had attended only eight Narcotics

Anonymous meetings, with her last verified attendance occurring on October 18,

2010.    Appellant admitted that she had not properly verified her community-

service hours and that she failed to attend the required meetings. Appellant

asserted that her health problems, the differing reporting requirements in the five

different counties she had resided in, and her lack of transportation interfered

with her compliance with the terms and conditions of her community supervision.

        The trial court concluded that Appellant had failed to comply with the

community-service term and the meeting term, adjudged Appellant guilty,

revoked Appellant’s community supervision, and sentenced her to fifteen years’

confinement. On July 30, 2012, the trial court entered its judgment, reflecting a

fourteen-year sentence and that Appellant had violated the community-service

term, the meeting term, and the terms regarding payment of fees and fines.


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      Appellant filed a notice of appeal from the trial court’s judgment and now

argues that (1) the evidence was insufficient to support the trial court’s

conclusion that Appellant violated the terms and conditions of her community

supervision and (2) the terms and conditions were too vague and indefinite to be

enforced. Appellant contends these errors by the trial court constituted an abuse

of discretion. Appellant further asserts that the trial court’s judgment should be

modified to delete the trial court’s finding of true to the allegations that Appellant

failed to pay the required fines and fees.

                           II. STANDARD OF REVIEW

      A trial court’s determination on a motion to adjudicate is reviewable in the

same manner as the determination on a motion to revoke community

supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp.

2012). We review an order revoking community supervision and adjudicating

guilt under an abuse of discretion standard. See Rickels v. State, 202 S.W.3d

759, 763–64 (Tex. Crim. App. 2006). To justify revocation, the State must prove

by a preponderance of the evidence that the defendant violated the terms and

conditions of community supervision. See Hacker v. State, 389 S.W.3d 860,

864–65 (Tex. Crim. App. 2013). The trial court is the sole judge of the credibility

of the witnesses and the weight to be given their testimony; thus, we review the

evidence in the light most favorable to the trial court’s ruling. See id. at 865.

      If the State fails to produce a preponderance of the evidence to support

adjudication and revocation, the trial court abuses its discretion. See Cardona v.


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State, 665 S.W.2d 492, 493–94 (Tex. Crim. App. 1984). However, proof by a

preponderance of any one alleged violation is sufficient to affirm an order

revoking community supervision and adjudicating guilt. See Bryant v. State, 391

S.W.3d 86, 93 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex.

App.—Fort Worth 2012, no pet.).

                                III. DISCUSSION

                            A. EVIDENCE SUFFICIENCY

      Appellant first argues that the evidence was insufficient to revoke on the

community-service term because “[i]f Appellant completed roughly 150 hours of

her 300 hours over the course of roughly two years, that means Appellant would

still have roughly eight years to complete the remaining 150 hours.”           The

community-service term stated that Appellant was required to complete the 300

community-service hours during her community-supervision term; however, the

term specified that she had to complete the hours at a set rate, i.e., eight hours

per week if employed or twenty-four hours per week if unemployed. Appellant

verified when placed on community supervision that she understood this term.

Although Appellant proffered reasons for her noncompliance with this term, the

trial court obviously did not accept Appellant’s excuses, and we cannot second

guess the trial court’s factual conclusions. See, e.g., Rickels, 202 S.W.3d at 764.

Further, because the community-service term clearly stated the rate at which

Appellant had to complete her hours, the State did not have to wait until the




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community-supervision period expired to determine if Appellant would complete

her 300 hours of community service.

      The evidence that Appellant violated the community-service term is

sufficient to support the trial court’s order. See Cullever v. State, No. 01-09-

00889-CR, 2011 WL 494878, at *4 (Tex. App.—Houston [1st Dist.] Feb. 10,

2011, no pet.) (mem. op., not designated for publication). Thus, we conclude

that the preponderance of evidence shows Appellant violated at least one

condition or term of her community supervision; thus, the trial court did not abuse

its discretion by revoking Appellant’s community supervision and adjudicating her

guilt. See, e.g., Marcum v. State, 983 S.W.2d 762, 767 (Tex. App.—Houston

[14th Dist.] 1998, pet. ref’d) (holding probation officer’s testimony that appellant

did not meet reporting requirement sufficient to revoke); Lozano v. State, No. 03-

07-00597-CR, 2008 WL 3540080, at *2 (Tex. App.—Austin Aug. 14, 2008, no

pet.) (recognizing trial court may disbelieve or not accept appellant’s excuses for

failing to comply with community-supervision conditions) (mem. op., not

designated for publication). We overrule this portion of issue one.

                             B. SPECIFICITY OF TERMS

      Appellant contends that the terms and conditions of her community

supervision were too vague and indefinite to be enforced. See McDonald v.

State, 442 S.W.2d 386, 387 (Tex. Crim. App. 1969). “An award of community

supervision is . . . a contractual privilege”; thus, “by entering into the contractual

relationship without objection, a defendant affirmatively waives any rights


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encroached upon by the terms of the contract.” Speth v. State, 6 S.W.3d 530,

534 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1088 (2000). Accordingly, if a

defendant finds a community-supervision term objectionable, she must complain

at trial in order to give the trial court the opportunity to address the complaint.

See id. at 534–35. 2 Appellant raised no objection to the terms she now asserts

were vague and indefinite. Indeed, she affirmatively stated in her plea-bargain

agreement that she understood the terms. We conclude Appellant has forfeited

this complaint.   See Tex. R. App. P. 33.1(a); Ogbeide v. State, Nos. 02-11-

00146-CR, 02-11-00147-CR, 2012 WL 3736309, at *3 (Tex. App.—Fort Worth

Aug. 30, 2012, no pet.) (mem. op., not designated for publication). We overrule

issue two.

                    C. ORAL PRONOUNCEMENT OF SENTENCE

      Appellant asserts that because the trial court orally stated that it concluded

only the community-service term and the meeting term had been violated, the

judgment must be modified to delete the finding of the trial court that Appellant

had failed to comply with the terms requiring payment of fines and fees. The

State does not dispute Appellant’s modification argument. Indeed, when a trial

judge’s oral pronouncement of sentence conflicts with the subsequent written

      2
       If a defendant complains about a community-supervision term that is
modified without a hearing, an objection to the term may be raised for the first
time on appeal if the defendant was not given an opportunity to object. See
Rickels, 108 S.W.3d at 902. We are not faced with that situation here because
Appellant challenges a term that was not imposed on modification or without
giving her an opportunity to object when imposed.


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judgment revoking deferred-adjudication community supervision, the oral

pronouncement controls. See Taylor v. State, 131 S.W.3d 497, 500, 502 (Tex.

Crim. App. 2004). Here, the trial court orally stated that it found Appellant failed

to comply with only two of the four terms alleged by the State: the community-

service term and the meeting term. Therefore, the trial court’s judgment must be

modified to delete the monetary terms as grounds for the trial court’s revocation

and adjudication. We sustain this portion of issue one.

      Although neither Appellant nor the State raises the issue, we note that the

trial court twice orally stated that Appellant’s sentence was for fifteen years, while

the written judgment reflected a fourteen-year sentence. 3 We have the authority

sua sponte to modify a judgment containing an improper recitation or omission

relating to punishment. See Mendoza v. State, Nos. 02-10-00047-CR, 02-10-

00048-CR, 02-10-00049-CR, 2010 WL 5621447, at *2 (Tex. App.—Fort Worth

Dec. 30, 2010, no pet.) (mem. op., not designated for publication); Asberry v.

State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). As stated

above, the oral pronouncement of sentence controls over the written judgment.

See Taylor, 131 S.W.3d at 500. Thus, the judgment must be modified to conform

the sentence to that which the trial court orally pronounced.




      3
       Appellant’s counsel recognized the discrepancy at oral argument.


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                               IV. CONCLUSION

      We overrule issue two and a portion of issue one.           We sustain the

remaining portion of issue one and modify the judgment to delete the payment

terms (listed as terms and conditions “A.” and “B.” in the judgment) as grounds

for the adjudication and revocation. We also modify the judgment to reflect that

Appellant’s sentence is fifteen years’ confinement as orally pronounced by the

trial court. As modified, we affirm the trial court’s judgment. See Tex. R. App. P.

43.2(b).




                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

GARDNER, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 30, 2013




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