                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-12-00317-CR
                                        No. 07-12-00318-CR
                                        No. 07-12-00319-CR


                               STORMY MOORE, APPELLANT

                                                 V.

                             THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 140th District Court
                                     Lubbock County, Texas
                   Trial Court Nos. 2009-425,641, 2009-425,642, 2010-427,182;
                              Honorable Jim Bob Darnell, Presiding

                                         August 23, 2013

                                MEMORANDUM OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

       On May 6, 2011, following open pleas of guilty, Appellant, Stormy Moore, was

convicted of burglary of a habitation 1 and sentenced to ten years confinement

suspended in favor of ten years community supervision in cause numbers 2009-

425,641 and 2010-427,182.           On August 1, 2011, following an open plea of guilty,


1
 TEX. PENAL CODE ANN. § 30.02(a)(3) (W EST 2011). As alleged in the indictments, an offense under this
statute was punishable as a second degree felony. Id. at § 30.02(c)(2).
Appellant was granted deferred adjudication for burglary of a habitation while

committing or attempting to commit the felony offense of robbery 2 and placed on

community supervision for ten years in trial court cause number 2009-425,642.                     In

addition to the standard conditions of community supervision, the trial court ordered, in

all three cases, that Appellant be placed on intensive supervision until he completed

treatment at the Lubbock County Court Residential Treatment Center (CRTC). Less

than a year later, the State filed motions to revoke community supervision and a motion

to proceed with adjudication of guilt alleging as the sole violation that Appellant failed to:


       [p]articipate in all programs, obey all rules and regulations of the Lubbock
       County Court Residential Treatment Center, and follow and complete all
       recommendations regarding treatment and length of stay as set forth by
       the staff of the Facility until successful completion of the treatment
       program or recommendation for unsuccessful discharge is given to the
       Director.

         The trial court held a consolidated hearing on the State’s three motions where

Appellant entered a plea of not true to each motion. Based on the evidence, Appellant’s

community supervision was revoked and the original sentence of ten years confinement

was imposed in cause numbers 2009-425,641 and 2010-427,182. In cause number

2009-425,642, the trial court adjudicated Appellant guilty and sentenced him to twenty-

five years confinement. The sentences were ordered to run concurrently.


       By his first issue, Appellant contends the trial court abused its discretion by

proceeding to adjudication and revoking his community supervision by refusing to

accept recommendations of a probation officer and the director of the probation


2
 TEX. PENAL CODE ANN. § 30.02(a)(3) (W EST 2011). As alleged in the indictment, an offense under this
statute was punishable as a first degree felony. Id. at § 30.02(d).


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department to place him in a different program to address his behavioral issues.

Appellant raises a second issue arguing potential ineffective assistance of counsel but

candidly acknowledges the difficulty in evaluating such a claim on direct appeal and

withholds pursuing that issue at this time. We affirm.


                                      BACKGROUND


      Appellant developed a chemical dependency problem when he was in his mid-

teens which lead to poor judgment and criminal activity. Although not a minor in the

eyes of the law when his legal problems began, he was a teenager at the time of the

underlying proceedings. The trial court granted Appellant community supervision and in

addition to the standard conditions thereof, ordered that he complete treatment at CRTC

to address his behavioral problems. The proceedings before this Court are the result of

Appellant’s unsuccessful discharge from the facility.


                                       TESTIMONY


      At the hearing on the State’s motions, Marcie Payton, a CRTC probation officer,

testified that Appellant was not amenable to treatment and went over a list of infractions

of the rules and regulations committed by him which resulted in a total of eighteen

incident reports in the span of eight months.      Those infractions included trading or

borrowing property with other residents, failing to attend mandatory classes on several

occasions, lying to staff whether he made certain appointments, taking Xanax not

prescribed to him, failing to timely complete an assignment for anger management




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class, cell phone use and various other violations. 3 The violations resulted in sanctions,

loss of furloughs, jail therapy and also caused setbacks in the time in which to complete

the program.


       During cross-examination, Payton confirmed that Appellant did have some

positive results while at CRTC and his attitude was improving. Several months before

his unsuccessful discharge, he was scheduled for a “max gain” discharge which means

a successful completion of the program. Unfortunately, Appellant had six additional

infractions after that period which demonstrated his behavior had not really changed.


       The probation supervisor at CRTC testified that Appellant would not be able to

return to the facility with an unsuccessful discharge.              He opined that Appellant’s

behavioral issues might not be suited to an aftercare program but he could benefit from

an intermediate sanction facility and a more structured environment. He referenced a

program known as Freedom Court with more structure than an aftercare program but

more suitable for someone who had received a max gain discharge, which Appellant did

not receive.


       Appellant’s caseworker testified that she was concerned about his behavioral

issues. She did believe that an intermediate sanction facility or Freedom Court would

be an appropriate alternative for Appellant. However, she acknowledged Appellant’s

fate was left to the discretion of the trial judge.


       After the State rested, the Director of Lubbock County Community Supervisions

and Corrections Department and Appellant’s father testified. The director questioned

3
Appellant’s conduct was more about behavioral issues and not substance abuse or criminal matters.

                                                 4
whether a motion to revoke was the appropriate action for Appellant’s behavioral issues

given that most of the infractions were not of a criminal nature. His opinion was that

Appellant could benefit from an alternative to revocation and close monitoring.

Appellant’s father testified he could provide a home and employment for his son.


                                 STANDARD OF REVIEW


      Whether reviewing the trial court’s decision to revoke community supervision or

an adjudication of guilt, we apply the same standard of review. See TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 5(b) (W EST SUPP. 2012). The sole question before this Court is

whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763

(Tex.Crim.App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984);

Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App. 1983). The State must prove by

a preponderance of the evidence that the probationer violated a condition of community

supervision as alleged in the motion.          Cobb v. State, 851 S.W.2d 871, 874

(Tex.Crim.App. 1993).    If the State fails to meet its burden of proof, the trial court

abuses its discretion in revoking community supervision. Cardona, 665 S.W.2d at 494.

In determining the sufficiency of the evidence to sustain a revocation, we view the

evidence in the light most favorable to the trial court's ruling.   Jones v. State, 589

S.W.2d 419, 421 (Tex.Crim.App. 1979).


                                       ANALYSIS


      Appellant maintains the trial court abused its discretion in revoking community

supervision in two cases and adjudicating him guilty in the third case by refusing to

accept recommendations from a probation officer and the director of the probation

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department to place him in an alternative program to address his behavioral issues. We

disagree.


       One of the key conditions of community supervision in all three of Appellant’s

cases was that he participate in all programs and obey all rules and regulations of the

CRTC program.        The evidence clearly demonstrates that Appellant repeatedly

disobeyed the rules and regulations at CRTC which led to an unsuccessful discharge

from the program. The trial court’s decision to revoke community supervision in cause

numbers 2009-425,641 and 2010-427,182, and adjudicate him guilty of burglary of a

habitation in cause number 2009-425,642, is supported by the evidence. Appellant’s

sole issue before this Court is overruled.


                               REFORMATION OF JUDGMENT


       In reviewing the records to evaluate Appellant’s issue, it came to this Court's

attention that the trial court's judgments revoking Appellant’s community supervision in

cause numbers 2009-425,641 and 2010-427,182 include a clerical error. The summary

portion of both judgments under the heading Plea to Motion to Revoke reflects that

Appellant entered pleas of "TRUE" to the allegation in the motions to revoke when the

reporter's record reveals he entered pleas of "not true" to the allegation.


       This Court has the power to modify the judgment of the court below to make the

record speak the truth when we have the necessary information to do so. TEX. R. APP.

P. 43.2(b). Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). Appellate

courts have the power to reform whatever the trial court could have corrected by a

judgment nunc pro tunc where the evidence necessary to correct the judgment appears

                                             6
in the record. Ashberry v. State, 813 S.W.2d 526, 529 (Tex.App.--Dallas 1991, pet.

ref'd). The power to reform a judgment is "not dependent upon the request of any party,

nor does it turn on the question of whether a party has or has not objected in the trial

court." Id. at 529-30.


       The reporter’s record establishes that Appellant, through his counsel, pleaded

not true to the sole allegation in each motion to revoke. Thus, we reform the Judgment

Revoking Community Supervision After Hearing in cause numbers 2009-425,641 and

2010-427,182 to reflect "NOT TRUE" under Plea to Motion to Revoke.


       As reformed, the trial court’s judgments in cause numbers 2009-425,641 and

2010-427,182 are affirmed. The trial court’s judgment in cause number 2009-425,642 is

also affirmed.


                                               Patrick A. Pirtle
                                                   Justice


Do not publish.




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