                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00390-CR
                                No. 10-09-00391-CR

JOHN EDISON LASHER,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                         From the 278th District Court
                              Leon County, Texas
                  Trial Court Nos. CM-01-192 and CM-01-193


                          MEMORANDUM OPINION


      John Edison Lasher pled guilty to aggravated sexual assault of a child and was

placed on ten years deferred adjudication community supervision (10-09-00390-CR).

TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2009). At the same time, Lasher pled

guilty to the offense of indecency with a child and was sentenced to ten years in prison

(10-09-00391-CR). TEX. PENAL CODE ANN. § 21.11 (Vernon Supp. 2009). He was later

placed on community supervision for ten years for this offense. In 2005, after the trial

court conducted a hearing on the State’s third amended motion to adjudicate and its
third amended motion to revoke Lasher’s community supervision, Lasher was

sentenced to life in prison for the aggravated sexual assault offense and ten years in

prison for the indecency with a child offense. He appeals both convictions. We affirm.

        Lasher presents the same singular issue for each appeal, that the trial court

denied Lasher due process when the trial court slept while testimony was being

presented during the hearing to revoke Lasher’s community supervision. It is helpful

to a determination of this issue for us to set out Lasher’s brief below. All emphasis and

inserts are as presented in the brief.

                            SUMMARY OF THE ARGUMENT

               The Trial Court DENIED Appellant due process, when the Trial
        Court slept while testimony was being presented during the hearing on
        the State’s Motions to revoke Appellant’s Community Supervision.

                                 STATEMENT OF FACTS

               During the hearing on the State’s Motions to revoke Appellant’s
        Community Supervision, the following colloquy occurred between the
        Trial Court, Appellant’s Counsel MARK R. MALTZBERGER, and witness
        SHELLY RENE MONEHAN. (RPTR. REC. I – 45 – 46).

              MR. MALTZBERGER:          Let me ask you this ma’am. I would like
        you to address the Judge with this. If [Appellant] were released back on
        probation, how can you guarantee this Court that [Appellant] would be
        more successful on probation when [Appellant] was released now?

                  MS. MONEHAN:      He - - like, what do you mean?

                  MR. MALTZBERGER:        Tell the Judge how would that
                       happen?

                  MS. MONEHAN:      Is [the Judge] awake over there?

                  MR. MALTZBERGER:        Excuse me, Your Honor. Excuse
                       me, Judge.

Lasher v. State                                                                    Page 2
                  THE COURT:       What?

                           ARGUMENT AND AUTHORITIES

               The Due Process Clause of the Fourteenth Amendment provides
        that no State may “deprive any person of life, liberty, or property, without
        due process of law.” The touchstone of due process is fundamental
        fairness. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). Here, Appellant
        was denied the opportunity to have the Trial Court evaluate testimony
        when the Trial Court slept while testimony was being presented during
        the hearing on the State’s Motions to revoke Appellant’s Community
        Supervision. Accordingly, this Court should sustain Appellant’s ISSUE
        NUMBER ONE; reverse the Judgments and Sentences of the Trial Court
        below; and remand the Causes to the Trial Court for a new hearing on the
        allegations set out in the State’s Motions to revoke Appellant’s
        Community Supervision.

                               CONCLUSION AND PRAYER

              For the foregoing reasons, Appellant respectfully prays that this
        Honorable Court REVERSE the Judgments and Sentences of the Trial
        Court below; and, REMAND the Causes to the Trial Court for a new
        hearing on the allegations set out in the State’s Motions to revoke
        Appellant’s Community Supervision.

        There are many reasons why Lasher’s issue is overruled. First, no alleged error

is preserved. No objection was made to the alleged incident by either party. See TEX. R.

APP. P. 33.1. Further, the record does not show that the trial court missed any testimony

at all. It is clear from the record that the witness had not begun her answer to the

question proposed. And, after the court replied “what?,” Lasher’s counsel summarized

what he had asked the witness. The witness then answered the question. At best, the

record only shows a momentary lack in concentration by the court.

        Second, the issue is inadequately briefed and presents nothing for review. TEX.

R. APP. P. 38.1(h); see Johnson v. State, 263 S.W.3d 405 (Tex. App.—Waco 2008, pet. ref’d).

Lasher v. State                                                                        Page 3
Lasher cites to one case for the proposition that the touchstone of due process is

fundamental fairness. He fails to explain how this or any other case supports his

argument that he was denied due process by the trial court’s alleged action. Even if this

was a novel argument made by Lasher for which there was no authority directly on

point, Lasher must still provide relevant authority suggesting how the court’s alleged

action violated Lasher’s due process rights. See Tong v. State, 25 S.W.3d. 707, 710 (Tex.

Crim. App. 2000).

        Third, even if the trial court’s alleged action was error, a result we expressly do

not hold, Lasher fails to show that he was harmed. See TEX. R. APP. P. 44.2. In addition

to pleading not true to some of the State’s allegations, Lasher pled true to many of the

State’s allegations of violations of his community supervision alleged in both its motion

to revoke and its motion to adjudicate. Because a plea of true, standing alone, is

sufficient to support the revocation of probation, Cole v. State, 578 S.W.2d 127, 128 (Tex.

Crim. App. 1979), Lasher could not have been harmed by the trial court’s alleged action.

        Accordingly, Lasher’s sole issue is overruled, and the trial court’s judgment is

affirmed.


                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed September 1, 2010
Do not publish
[CRPM]

Lasher v. State                                                                      Page 4
