Affirmed as Modified; Opinion Filed November 30, 2015.




                                            In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                    No. 05-14-01628-CR

                        TOREY JABBAR NEWHOUSE, Appellant
                                      V.
                          THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 5
                                  Dallas County, Texas
                          Trial Court Cause No. F-0758402-L

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

       This appeal follows the trial court’s revocation of Torey Jabbar Newhouse’s community

supervision and adjudication of his guilt for a 2007 aggravated robbery with a deadly weapon.

In two issues, Newhouse asserts his counsel was ineffective and the evidence is insufficient to

support the revocation. We modify the trial court’s judgment to reflect the trial court found

Newhouse violated seven of the eight conditions alleged by the State and to reflect a deadly

weapon finding. As modified, we affirm.

                                     I. BACKGROUND

       Newhouse was placed on ten years’ community supervision in March 2009. Diagnosed

with “a potentially severe mental illness, most probably a mood and psychotic disorder caused

by his past abuse of marijuana dipped in embalming fluid,” Newhouse was ordered, as a
condition of supervision, to participate in a “Substance Abuse Punishment Facility Program.”

Also, upon release from that program, he was ordered to participate in a “drug/alcohol

continuum of care treatment plan.”

       On February 17, 2014, after Newhouse failed to return as directed to the residential

program in which he was placed as a part of the “drug/alcohol continuum of care treatment

plan,” the State moved to revoke Newhouse’s community supervision and proceed with

adjudication of guilt. The State asserted Newhouse violated condition (x) of the terms of

community supervision by going “AWOL” from the residential program and also violated

conditions

       •(f) by failing to “work faithfully at suitable employment;”

       •(h) by failing to pay $236 in court costs and fines;

       •(j) by failing to pay $3540 in community supervision fees;

       •(k) by failing to pay $50 to Crime Stoppers;

       •(m) by failing to pay $230 in urinalysis fees;

       •(t) by failing to obtain a “Drug Patch;” and,

       •(v) by failing to complete intensive outpatient counseling.

       Newhouse pleaded true to the allegations he violated conditions (h), (j), (k), (m), (t), and

(v). He pleaded not true to the allegations he violated conditions (f) and (x), and those were tried

to the trial court. Following testimony from Newhouse’s probation officer Joel Salazar that

Newhouse did not report he was working and, while “AWOL,” was treated at a psychiatric

hospital, the trial court found Newhouse violated all conditions “except X.” The trial court

revoked Newhouse’s supervision, adjudicated his guilt, and sentenced him to twenty-five years’

imprisonment.




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                              II. SUFFICIENCY OF EVIDENCE

       Newhouse’s sufficiency argument challenges the seven conditions the trial court found he

violated. Of those seven, he pleaded true to violating six, and it is his pleas of true to those

violations which are the subject of his ineffective assistance of counsel claim. Because a plea of

true to one violation is sufficient to support revocation, see Tapia v. State, 462 S.W.3d 29, 31 n.2

(Tex. Crim. App. 2015), Newhouse asserts his sufficiency challenge “in reliance that the Court

will sustain his ineffective assistance of counsel claim.” However, because he pleaded not true

to violating condition (f), requiring he “work faithfully at suitable employment,” we address the

sufficiency issue first to determine if the revocation is supported independent of the alleged

ineffective assistance.

                                        A. Applicable Law

       In a community supervision revocation proceeding, the burden of proof lies on the State

to establish by a preponderance of the evidence that the defendant violated a condition of his

community supervision. Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013);

Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The State satisfies this burden

when the “greater weight of the credible evidence” before the trial court “create[s] a reasonable

belief that the defendant has violated a condition of his [community supervision].” Rickels, 202

S.W.3d at 763-64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)).

                                      B. Standard of Review

       An appellate court reviews a decision to revoke deferred adjudication community

supervision and proceed to an adjudication of guilt in the same manner as a decision to revoke

ordinary community supervision: for abuse of discretion. See TEX. CODE CRIM. PROC. ANN. art.

42.12, §5(b) (West Supp. 2015); Hacker, 389 S.W.3d at 864-65.             A trial court abuses its

discretion when its decision lies outside the zone of reasonable disagreement. See Tapia v. State,

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462 S.W.3d 29, 41 n.14 (Tex. Crim. App. 2015). In conducting its review, the appellate court

views the evidence in the light most favorable to the trial court’s ruling, bearing in mind the trial

court is the sole judge of the credibility of the witnesses and the weight to give their testimony.

See Hacker, 389 S.W.3d at 865; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel

Op.] 1981). The appellate court will conclude no abuse of discretion occurred if the record

shows a plea of true to, or proof by a preponderance of the evidence of, any of the alleged

violations of the community supervision terms. See Tapia, 462 S.W.3d at 31 n.2; Moore v. State,

605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980).

                                  C. Application of Law to Facts

       To show Newhouse failed to “work faithfully at suitable employment,” in violation of

condition (f), the State offered the testimony of probation officer Salazar. Salazar testified each

time Newhouse reported to Salazar, he was required to complete a “probation sheet” where he

must indicate whether he was working. According to Salazar, each time Newhouse reported,

Newhouse “put dashes [i]nstead of not applicable . . . where it asked him for employment.”

However, Newhouse argues this testimony was insufficient to support the revocation because

Salazar also testified that Newhouse was unable to maintain suitable employment due to his

mental illness. In making this argument, Newhouse relies on the following portion of trial

counsel’s cross-examination of Salazar:

       Q.      And on February 7th, Timberlawn again discharged [Newhouse] to Terrell
               [State Hospital], is that correct?

       A.      Correct.

       Q.      Now, Mr. Newhouse’s medical records also say that because of his
               medical condition, he’s disabled to work; is that correct?

       A.      Not based on any information that I got from Terrell, no.

       Q.      I’m not talking about just the Terrell records. You are his supervisor, is
               that correct?
                                                –4–
       A.      Correct.

       Q.      So that means you have reviewed or you should have reviewed all of his
               medical records, is that correct?

       A.      I’m not able to review every single medical record he has.

       Q.      Okay. But if you would review those medical records and say he is
               disabled because of his medical condition, that would make him unable to
               work at suitable employment, is that correct?

       A.      If I had seen it, yes.

       Contrary to Newhouse’s argument, this testimony does not show Newhouse was unable

to work due to his mental illness. Rather, this testimony reflects Salazar agreed that Newhouse

would be unable to work if Newhouse’s medical records showed he was disabled. However, no

records were given to Salazar for his review, or offered into evidence, showing Newhouse was

disabled. Moreover, Terrell State Hospital was the last hospital in which Newhouse was treated

before the State moved to revoke supervision, and Salazar testified he received no information

from the hospital indicating Newhouse was disabled. As the sole judge of the credibility of the

witnesses’ testimony and the weight to give their testimony, the trial court was free to find

Salazar’s testimony “create[d] a reasonable belief” that Newhouse failed to work by choice, in

violation of condition (f) of his terms of community supervision. See Garrett, 619 S.W.2d at

174. On the record before us, we conclude the State satisfied its burden of proving, with

evidence independent of the pleas of true forming the basis of Newhouse’s ineffective assistance

claim, that Newhouse violated condition (f) as alleged, and there was no abuse of discretion

when supervision was revoked and guilt was adjudicated. Newhouse’s second issue is decided

against him.




                                              –5–
                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

       In his first issue, Newhouse asserts his trial counsel was ineffective in advising him to

plead true to the allegations he violated conditions (h), (j), (k). (m), (t), and (v). Specifically, he

asserts counsel was ineffective for advising him to plead true to the allegations that he violated

conditions (h), (j), (k), and (m) by failing to pay court costs, fines, and the various fees when,

“[d]ue to his [mental] illness, he was unable to maintain suitable employment.” He asserts

counsel was ineffective for advising him to plead true to the allegations he violated condition (t)

by failing to obtain a drug patch and violated condition (v) by failing to complete intensive

outpatient counseling when he was either in the residential program or in the hospital and

available to get the patch and receive counseling. Newhouse contends that but for trial counsel’s

advice to plead true to the specified allegations, he would have pleaded not true and proceeded to

a contested hearing on all alleged violations. He further contends that but for the pleas of true,

his supervision would not have been revoked because there was insufficient evidence to support

the allegations apart from the pleas.

                                         A. Applicable Law

       To prevail on an ineffective assistance of counsel claim, a defendant must show by a

preponderance of the evidence both that counsel’s performance was deficient and the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Smith

v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009). The first prong requires a showing that

counsel’s performance fell below an objective standard of reasonableness under prevailing

professional norms. See Strickland, 466 U.S. at 687-88; Smith, 286 S.W.3d at 340. The second

prong requires a showing of a reasonable probability that but for counsel’s errors, the result of

the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Smith, 286 S.W.3d

at 340. In the context of a community supervision revocation hearing, where the State alleges,

                                                 –6–
and the trial court finds true, multiple violations of the terms of community supervision, the

defendant must demonstrate reasonable grounds exist to overturn each of the findings of true that

led to the revocation of community supervision. See Smith, 286 S.W.3d at 342. This is so

because “‘one sufficient ground for revocation . . . support[s] the trial court’s order revoking’

community supervision.” See id. (quoting Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim.

App. 1978)).

                                 B. Application of Law to Facts

       Having concluded the State satisfied its burden of proving, with evidence independent of

the pleas of true, that Newhouse violated condition (f) by failing to work and the trial court did

not abuse its discretion in revoking supervision on this ground, we necessarily decide

Newhouse’s ineffective assistance claim against him. To prevail on this claim, Newhouse

needed to show the results of the proceeding would have been different had he not pleaded true

to the specified violations. See Smith, 286 S.W.3d at 340. However, this he cannot do.

                           IV. MODIFICATION OF JUDGMENT

       Although the trial court did not find Newhouse violated condition (x) of the terms of

supervision as the State alleged in its motion, the judgment recites Newhouse violated all terms

and conditions of supervision listed in the motion. Further, although the trial court adjudicated

Newhouse guilty as “indicted,” and the indictment alleged Newhouse used and exhibited a

deadly weapon, the judgment does not contain a deadly weapon finding. Because an appellate

court has the authority to modify an incorrect judgment to make the record speak the truth, we

modify the judgment to (1) show the trial court found Newhouse violated conditions (f), (h), (j),

(k), (m), (t), and (v) as set out in the State’s motion and (2) reflect “YES, NOT A FIREARM” in

the section entitled “Findings on Deadly Weapon:”. See TEX. R. APP. P. 43.2(b); Bigley v. State,




                                               –7–
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).

                                      V. 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
141628F.U05




                                              –8–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

TOREY JABBAR NEWHOUSE, Appellant                     On Appeal from the Criminal District Court
                                                     No. 5, Dallas County, Texas
No. 05-14-01628-CR          V.                       Trial Court Cause No. F-0758402-L.
                                                     Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                         Francis and Brown participating.

        Based on the Court’s opinion of this date, we MODIFY the trial court’s judgment to
reflect on page 2, in the paragraph concerning the trial court’s findings, as follows:

(5) While on community supervision, Defendant violated the terms and conditions of community
supervision by violating conditions (f), (h), (j), (k), (m), (t), and (v) as alleged in the State’s
Motion to Revoke Probation or Proceed with an Adjudication of Guilt.

We further MODIFY the section of the trial court’s judgment entitled “Findings on Deadly
Weapon” to reflect “YES, NOT A FIREARM.”

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


Judgment entered this 30th day of November, 2015.




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