

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  Eventually, appellant’s probation was
revoked, which resulted in a ten-year prison sentence.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.  

