                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-15-00148-CR
                             NO. 02-15-00150-CR


KYLE CHRISTOPHER                                                  APPELLANT
HOWARDJOHNSON

                                      V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                 TRIAL COURT NOS. 1370580D, 1370579D

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                       MEMORANDUM OPINION 1

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      Appellant Kyle Christopher HowardJohnson appeals his convictions for

burglary of a habitation and evading arrest or detention in a vehicle. 2 In two


      1
      See Tex. R. App. P. 47.4.
      2
      See Tex. Penal Code Ann. § 30.02(a)(1) (West 2011), § 38.04(a) (West
Supp. 2014).
points, he argues that the trial court abused its discretion and violated his due

process rights by revoking his community supervision and sentencing him to a

term of confinement and that the judgment adjudicating his guilt for burglary must

be modified to delete a restitution requirement. We modify the judgment on the

burglary charge, affirm it as modified, and affirm the judgment on the charge for

evading arrest in a vehicle.

                                Background Facts

      A grand jury indicted appellant with burglary and with evading arrest or

detention in a vehicle. Appellant pled guilty to both offenses. In the process of

doing so, he waived constitutional and statutory rights and judicially confessed.

Under the terms of a plea bargain, in each case, the trial court deferred its

adjudication of his guilt and placed him on community supervision for six years.

In the burglary case, the trial court ordered him to pay $500 in restitution; the

court did not order restitution with regard to the charge for evading arrest.

      In each case, the trial court ordered several conditions of community

supervision and informed appellant in writing that if he failed to comply with them,

his community supervision could be revoked.          As established by the clerk’s

records in these two appeals, the conditions included committing no other

offense, reporting to community supervision authorities on at least a monthly

basis, furnishing proof of employment to his community supervision officer,

remaining within Tarrant County or its contiguous counties, and completing

twenty hours of community service per month until he completed 520 total hours.


                                          2
      Less than four months later, in each case, the State filed a petition for the

trial court to adjudicate appellant’s guilt. In the petitions, the State alleged, in

part, that he had failed to report to his community supervision officer, had failed

to furnish proof of employment, had failed to remain within Tarrant County or

contiguous counties, had failed to participate in community service, and had

removed a GPS monitoring device without the court’s authorization. The State

later filed an amended petition in each case that contained the same allegations.

      The trial court held a hearing on the State’s amended petitions. Appellant

pled true to the allegations that he had failed to report to his community

supervision officer and that he had removed a GPS monitoring device; he pled

not true to all other allegations. The following exchange occurred when appellant

pled true to the GPS-related allegation contained in each amended petition:

            THE COURT: Paragraph 7 [of the State’s amended petitions]
      alleges that you were ordered to participate in and successfully
      complete electronic monitoring home confinement until rescinded by
      the Court . . . . [Paragraph 7A] alleges, in violation of this condition,
      you removed your electronic monitoring device without authorization
      from the Court . . . on or about November 14th, 2014. . . .

            ....

             THE COURT: . . . [T]o Paragraph 7A, you may plead true or
      not true. What is your plea?

            THE DEFENDANT: True.

      Following appellant’s pleas, the State presented evidence showing that he

had been apprised of the conditions of his community supervision on the day he

was placed on community supervision and that he had violated various


                                         3
conditions. Appellant called several witnesses, including his girlfriend and his

mother, who each testified about his character and about their desire for him to

remain unconfined. Appellant also testified and asked to remain on community

supervision.

      After hearing the parties’ closing arguments, the trial court found that

appellant had violated his community supervision conditions by failing to report to

his community supervision officer, by failing to furnish proof of suitable

employment, by failing to remain in Tarrant County or its contiguous counties, by

failing to participate in community service, and by removing the GPS monitoring

device. In both cases, the trial court revoked appellant’s community supervision,

found him guilty, and sentenced him to five years’ confinement. 3 The court also

found appellant guilty of endangering a child by criminal negligence after

revoking his community supervision for that offense, and the court sentenced him

to five years’ confinement for that charge. 4 The court did not impose restitution

with respect to the burglary charge or the evading-arrest charge on the record at

the revocation hearing, but in its judgment on the burglary charge, the court

ordered appellant to pay $500 in restitution. Appellant brought this appeal.

      3
       The trial court ordered the sentences to run concurrently.
      4
       Following appellant’s conviction for that charge, the trial court granted his
motion for new trial and dismissed the charge at the State’s request. We
therefore dismissed appellant’s appeal related to that charge.                  See
HowardJohnson v. State, No. 02-15-00149-CR, 2015 WL 3799127, at *1 (Tex.
App.—Fort Worth June 18, 2015, no pet.) (mem. op., not designated for
publication).


                                         4
                         The GPS Monitoring Condition

      In his first point, appellant contends that the trial court abused its discretion

and violated his right to due process by revoking his community supervision and

determining his punishment “based on a violation of a non-existent term of

[community supervision].” We review an order revoking community supervision

for an abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.

App. 2006); Lawrence v. State, 420 S.W.3d 329, 331 (Tex. App.—Fort Worth

2014, pet. ref’d).   In a revocation proceeding, the State must prove by a

preponderance of the evidence that the defendant violated at least one of the

conditions of community supervision. Lawrence, 420 S.W.3d at 331; Powe v.

State, 436 S.W.3d 91, 93 (Tex. App.—Fort Worth 2014, pet. ref’d). A defendant

has certain due process rights with regard to the revocation of community

supervision. See U.S. Const. amend. XIV, § 1; DeGay v. State, 741 S.W.2d 445,

450 (Tex. Crim. App. 1987) (“The central issue to be determined in reviewing a

trial court’s exercise of discretion in a probation revocation case is whether the

probationer was afforded due process of law.”); Hammack v. State, 466 S.W.3d

302, 306 (Tex. App.—Texarkana 2015, no pet.).

      Appellant contends that the trial court based its revocation and sentencing

decisions on a belief that GPS tracking was a requirement of community

supervision when it was not. He argues that a “review of the record produced by

the clerk indicates no term of [community supervision] ordering him to wear a

GPS monitor.” Although he does not challenge the sufficiency of the evidence to


                                          5
prove that he violated other terms of community supervision 5 and concedes that

the trial court’s adjudication of his guilt was proper, he contends that the

evidence concerning his removal of the GPS device was the driving force of the

trial court’s decision to revoke his community supervision and to sentence him to

five years’ confinement. 6

       After filing his notice of appeal, appellant asked the district clerk to prepare

clerk’s records that included all “conditions of . . . community supervision original

and amended or supplemental [that he] was required to follow.” Despite this

broad request, and despite the fact that the trial court found that appellant

violated a condition of community supervision by removing a GPS monitoring

device without the court’s authorization (based in part on appellant’s plea of true

to that allegation), neither of the clerk’s records for these two appeals establish

that the trial court ever ordered appellant to wear a GPS monitoring device. At

the end of the hearing on the State’s amended petition for the court to adjudicate

appellant’s guilt, before pronouncing appellant’s sentence, the trial court stated to

him,


       5
       Standing alone, a plea of true to any alleged violation of community
supervision is sufficient to support the revocation of community supervision.
Wilkerson v. State, 731 S.W.2d 752, 753 (Tex. App.—Fort Worth 1987, no pet.);
see Perry v. State, 367 S.W.3d 690, 693 (Tex. App.—Texarkana 2012, no pet.).
       6
       Appellant states that he “cannot complain of the [trial] court’s action in
adjudicating him . . . . The complaint on appeal [concerns] the basis on which
the court arrived at the decision to send him to prison instead of allowing him to
remain on probation.”


                                           6
      If we had simply the allegations in [paragraphs] 2, 3, 4, 6, and 8 [of
      the State’s amended petition],[7] the Court would be of the mind that
      you should remain on probation. However, cutting off the [GPS]
      monitor and disappearing for four-and-a-half months is simply not
      something this Court is willing to overlook in the scheme of people
      who should remain on probation, but have violated their probation,
      versus people who should not remain on probation.

      Appellant contends that these comments show that the trial court “placed a

great deal of importance on the removal of the GPS device in determining to not

allow [him] to remain” on community supervision. He asserts that if “no such

term of [community supervision] was in effect, then the consideration of same for

purposes of determining punishment runs afoul of due process.” 8

      For two reasons, we overrule appellant’s argument.        First, the court of

criminal appeals has instructed us that we should not reverse a trial court’s

revocation of community supervision when the court subjectively based the

revocation on an invalid ground as long as there are objectively valid grounds to

support the decision. See Jackson v. State, 508 S.W.2d 89, 90 (Tex. Crim. App.

1974). In Jackson, the trial court revoked probation based on an allegation that

Jackson had committed a new offense.         Id. at 89–90.   On appeal, Jackson

argued that the evidence of his new offense was based only on an inadmissible

      7
        These paragraphs concerned appellant’s alleged use of marijuana, his
failure to furnish proof of employment, his failure to remain in Tarrant County or
its contiguous counties, his failure to complete community service, and his
continuing contact with a child.
      8
       We note that the record from these two appeals does not preclude the
possibility that the trial court ordered a GPS-monitoring condition with respect to
appellant’s charge for endangering a child.


                                        7
oral confession. Id. at 90. The record showed that at the revocation hearing, the

trial court stated that it might not have revoked probation without the oral

confession. Id. Although the court of criminal appeals recognized that the oral

confession was inadmissible, it upheld the revocation because other evidence

supported it.   Id.   The court explained, “Whatever the reasons given for the

judge’s decision to revoke probation in an informal, oral discussion with defense

counsel, if the decision itself be supportable, then it will not be disturbed on

appeal.” Id.

      Following this principle from Jackson, our sister courts have repeatedly

held that regardless of the reasons given by the trial court for revoking

community supervision, if evidence supports the court’s decision, we will not

reverse it. See Parker v. State, No. 01-03-01347-CR, 2005 WL 729491, at *1

(Tex. App.—Houston [1st Dist.] Mar. 31, 2005, no pet.) (mem. op., not

designated for publication); Willis v. State, 2 S.W.3d 397, 399 (Tex. App.—Austin

1999, no pet.); see also Lennox v. State, No. 14-99-00205-CR, 2000 WL 424022,

at *1–2 (Tex. App.—Houston [14th Dist.] Apr. 20, 2000, pet. ref’d) (not

designated for publication) (holding that although a trial court expressly based its

revocation decision on the defendant’s failure to secure or maintain employment

and the evidence was insufficient to support revocation on that ground, the

revocation could be upheld based on the violation of other terms). Appellant

does not challenge that other violations of his community supervision conditions

objectively justify his revocation and sentence. Thus, because objectively-valid


                                         8
reasons support the trial court’s revocation, adjudication, and sentencing

decisions, we will not disturb those decisions. See Jackson, 508 S.W.2d at 90;

Lennox, 2000 WL 424022, at *2.

      Second, the record does not show that the trial court would have

necessarily made different decisions on revocation and sentencing if the

evidence at the revocation hearing had established that appellant’s wearing a

GPS device was not a condition of his community supervision. In explaining why

it was revoking appellant’s community supervision and sentencing him to five

years’ confinement, the trial court relied, in part, on the first allegation in the

State’s first amended petition for adjudication, which concerned his failure to

report to his community supervision officer from November 14, 2014 through

March 2015. The court explained that appellant’s “disappearing for four-and-a-

half months [was] simply not something [the court was] willing to overlook.”

      Furthermore, although the trial court also relied on appellant’s “cutting off

the monitor” as a basis for its revocation and sentencing decisions, the court

linked that act to appellant’s candidacy for community supervision in the future.

While testifying, appellant agreed that when he cut off his GPS monitor, he was

“thumbing [his] nose” at the court, but he represented that he would be willing to

wear a GPS monitor again if the court did not revoke his community supervision.

Thus, even if appellant’s wearing a GPS monitor was not a requirement of his

community supervision but was instead a product of a mistaken belief among

appellant, the State, and the court about the conditions of his community


                                        9
supervision, we cannot conclude that the trial court erred by considering, as to

whether appellant would likely comply with community supervision conditions in

the future, that after he began wearing the monitor, he cut it off and disposed of it

in an attempt to evade his responsibilities. In other words, appellant’s removal

and disposal of the GPS device, which he believed to be an act that violated his

community supervision conditions, was probative of his fitness to remain on

community supervision—as opposed to being sentenced to a term of

confinement—whether or not wearing the device was actually a condition of

community supervision. See Parker v. State, No. 05-13-01535-CR, 2014 WL

7497800, at *2 (Tex. App.—Dallas Dec. 29, 2014, no pet.) (not designated for

publication) (explaining that in a unitary hearing concerning the revocation of

community supervision, the trial court may consider evidence relevant to

sentencing even if the evidence does not relate to the allegations in the petition

to revoke); Moreland v. State, No. 05-11-00426-CR, 2012 WL 3010277, at *2

(Tex. App.—Dallas July 24, 2012, no pet.) (not designated for publication)

(holding that the State was not required to allege in its petition to revoke that the

defendant committed a recent offense to allow the trial court to consider that

offense for sentencing purposes).

      For these reasons, we cannot conclude that the trial court abused its

discretion or violated appellant’s due process rights by revoking his community

supervision, adjudicating his guilt, and sentencing him to five years’ confinement.




                                         10
See U.S. Const. amend. XIV, § 1; Rickels, 202 S.W.3d at 763. We overrule

appellant’s first point.

                                    Restitution

       In his second point, appellant contends that the trial court’s final judgment

on the burglary charge should be reformed to delete the requirement that he pay

$500 in restitution. 9     As explained above, although the trial court ordered

restitution in its deferred adjudication order in the burglary case, the court did not

orally pronounce any restitution requirement when it adjudicated appellant’s guilt

and sentenced him.

       A judgment adjudicating guilt sets aside a fine or restitution requirement

that is contained in an order deferring adjudication and that is not orally

pronounced by the court when it revokes community supervision and convicts

and sentences the defendant. See Taylor v. State, 131 S.W.3d 497, 502 (Tex.

Crim. App. 2004); Alexander v. State, 301 S.W.3d 361, 364 (Tex. App.—Fort

Worth 2009, no pet.). In such a case, we must reform the judgment to delete the

fine or restitution requirement. See Burt v. State, 445 S.W.3d 752, 759–60 &

n.32 (Tex. Crim. App. 2014); Taylor, 131 S.W.3d at 502; Alexander, 301 S.W.3d

at 364. Therefore, because the trial court did not orally pronounce any restitution

requirement when it convicted and sentenced appellant, we must reform the




       9
        The State candidly agrees with this assertion.


                                         11
judgment concerning appellant’s burglary conviction to delete the requirement for

him to pay restitution. We sustain appellant’s second point.

                                  Conclusion

      Having overruled appellant’s first point and having sustained his second

point, we modify the “Judgment Adjudicating Guilt” in the burglary case—

appellate cause number 02-15-00148-CR—to delete the requirement that

appellant pay restitution of $500. We affirm that judgment as modified and affirm

the “Judgment Adjudicating Guilt” in cause number 02-15-00150-CR in all

respects. See Tex. R. App. P. 43.2(a), (b).

                                                  /s/ Terrie Livingston

                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

DAUPHINOT, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 3, 2015




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