                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00356-CR
                               NO. 02-12-00357-CR

GLEN LATEL POWE A/K/A GLEN                                             APPELLANT
POWE

                                         V.

THE STATE OF TEXAS                                                           STATE


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        FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                                    OPINION

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      In May 2011, Appellant Glen Latel Powe pled guilty to aggravated robbery

and robbery, and the trial court placed him on deferred adjudication community

supervision. A little more than a year later, in each case, the trial court found ten

allegations in the State’s petition to proceed to adjudication true, and then,

following Appellant’s agreement with the State, revoked his deferred adjudication

community supervision, convicted him of aggravated robbery and robbery, and
sentenced him to forty years’ confinement and twenty years’ confinement

respectively, with the sentences running concurrently.        Appellant brings two

issues on appeal, arguing (1) that the trial court abused its discretion by finding

true two allegations that he had committed deadly conduct and (2) that his

punishment plea was not voluntary and the trial court therefore should have

withdrawn his plea at punishment sua sponte. Because the trial court did not

abuse its discretion by finding at least one allegation in each petition to proceed

to adjudication true and because the trial court did not err by failing to sua sponte

withdraw Appellant’s plea at the punishment hearing, we affirm the trial court’s

judgments.

Petition to Proceed to Adjudication

      The petition to proceed to adjudication in each case alleged eleven

violations of the terms and conditions of Appellant’s deferred adjudication

community supervision. The State abandoned the allegation of failure to report.

Appellant argues that the trial court abused its discretion by finding allegations

number three and five true.        As the State points out, Appellant does not

challenge the sufficiency of the evidence to support the findings of true regarding

the remaining eight allegations.

      An appellate court reviews an order to proceed to adjudication in the same

manner as a decision revoking “straight” or regular community supervision. 1 An


      1
       Tex Code Crim. Proc. Ann. art. 42.12 § 5(b) (West Supp. 2013).


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appellate court reviews an order revoking community supervision for an abuse of

discretion. 2 In a revocation hearing, the State must prove by a preponderance of

the evidence that the defendant violated the terms and conditions of community

supervision as alleged in the petition to revoke. 3 Appellant concedes in his brief

that “there was sufficient evidence to substantiate the adjudication on [grounds

other than those alleged in allegations three and five].” We agree. Proof of a

violation of a single condition is sufficient to support a trial court’s decision to

revoke probation. 4

      But Appellant also summarily argues that “the deadly conduct finding[s] [on

allegations three and five] most likely had some effect” on his punishment. In

light of the fact that the uncontested allegations include

•     three counts of aggravated assault, two allegedly committed against the
      complainants named in the challenged allegations and one that Appellant
      allegedly committed by shooting a third complainant;

•     deadly conduct (by shooting a gun) that Appellant allegedly committed
      against that third complainant;

      2
       Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).
      3
       Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).
      4
       Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. 1978); see
Gobell v. State, 528 S.W.2d 223, 224 (Tex. Crim. App. 1975) (holding revocation
proper because even if his contentions were correct, Gobell’s revocation was
based on two offenses and he challenged only one); Ross v. State, 523 S.W.2d
402, 404 (Tex. Crim. App. 1975) (holding State’s allegation of failure to report to
probation officer was sufficient to revoke despite any showing of deficiency in the
other two violations alleged in the motion to revoke), overruled on other grounds
by Henson v. State, 407 S.W.3d 764, 768 & n.17 (Tex. Crim. App. 2013), cert.
denied, 134 S. Ct. 934 (2014).


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•     aggravated robbery that Appellant allegedly committed against a fourth
      complainant;

•     aggravated robbery (with a gun) and robbery causing bodily injury that
      Appellant allegedly committed against a fifth complainant; and

•     possessing a firearm,

it is difficult to understand how two additional allegations of deadly conduct by

shooting had any perceptible additional negative influence on the sentences the

trial court imposed. Additionally, the sentences the trial court imposed were the

sentences agreed upon by the State and Appellant.

      Given the eight unchallenged “true” findings, we hold that the trial court did

not abuse its discretion by granting the State’s petitions to proceed to

adjudication. We overrule Appellant’s first issue.

Punishment Plea

      After the trial court found the ten live allegations in the petitions to proceed

to adjudication true, Appellant and the State entered into an agreement whereby

(1) he would plead guilty to two new cases, trial court cause numbers 1271018D

and 1270995D, alleged as violations of terms and conditions of his community

supervision in the cases now before this court, (2) his punishment in those two

new cases would be fifteen years’ confinement each, (3) his punishment in the

aggravated robbery and robbery before us would be forty years’ and twenty

years’ confinement respectively, and (4) the four sentences would run

concurrently. The trial court followed the agreement, adjudicated Appellant guilty

of all four cases, and sentenced him in accordance with the agreement.


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      After Appellant had been convicted and sentenced in all four cases and

was serving his sentences, he sent two pro se letters to the trial court specifically

complaining of the forty-year sentence he received for the aggravated robbery

before us and generally complaining that his plea was involuntary. He mentioned

wanting to appeal four times in the two short documents. He did not mention a

motion for new trial or even a “new trial.” The trial court treated Appellant’s

letters as a pro se notice of appeal.

      Appellant appears to argue in his brief that his pleas of guilty in the two

additional cases were involuntary and that the trial court should have sua sponte

(1) withdrawn his guilty pleas in those cases, (2) voided the punishment

agreement in the cases before us, and (3) given him a new trial on punishment.

This court has already dismissed the appeals in the two additional plea-

bargained cases, and mandate has issued. 5 We address those cases only as

they relate to Appellant’s suggestion that his pleas in those cases affect his

punishment agreement in the two revocation cases now on appeal.

      Appellant’s argument fails for multiple reasons. In his letters, Appellant did

not ask the trial court to withdraw his pleas of guilty and did not ask for a new trial

in the additional two cases or in the cases now before us. When the trial court

received the letters, the trial court had already pronounced sentence in all four


      5
      See Powe v. State, Nos. 02-12-00358-CR, 02-12-00359-CR, 2012 WL
4815535, at *1 (Tex. App.—Fort Worth Oct. 11, 2012, no pet.) (mem. op., not
designated for publication).


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cases, and Appellant was already serving each sentence.          The trial court

therefore had no vehicle for withdrawing the guilty pleas in the two additional

cases or for vacating the related sentences in the cases before us. A trial court

cannot grant a new trial on its own motion. 6 Only a defendant can request and

receive a new trial in a criminal case. 7

      Nor, even if we were to construe Appellant’s letters as a motion for new

trial, are the bare assertions contained in them sufficient to create a record

supporting involuntariness where none exists in the appellate record before us.

We overrule Appellant’s second issue.

Conclusion

      Having overruled Appellant’s two issues, we affirm the trial court’s

judgments.




      6
       See Tex. R. App. P. 21.1, 21.4; Zaragosa v. State, 588 S.W.2d 322, 326–
27 (Tex. Crim. App. 1979); Dunn v. State, 176 S.W.3d 880, 886–87 (Tex. App.—
Fort Worth 2005, no pet.); Harris v. State, 958 S.W.2d 292, 293 (Tex. App.—Fort
Worth 1997, pet. ref’d); see also State v. Aguilera, 165 S.W.3d 695, 698 n.9
(Tex. Crim. App. 2005).
      7
      See Tex. R. App. P. 21.1, 21.4; Zaragosa, 588 S.W.2d at 326–27; Dunn,
176 S.W.3d at 885.


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                                    /s/ Lee Ann Dauphinot
                                    LEE ANN DAUPHINOT
                                    JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

PUBLISH

DELIVERED: May 22, 2014




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