                     COURT OF APPEALS
                      SECOND DISTRICT OF TEXAS
                           FORT WORTH

                          NO. 2-08-026-CR

DERRICK KEITH COOKE                               APPELLANT

                                  V.

THE STATE OF TEXAS                                     STATE
                              ------------

    FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                              ------------

                               AND
                          NO. 2-08-027-CR

EX PARTE DERRICK KEITH COOKE

                              ------------

    FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                               AND
                          NO. 2-08-212-CR

DERRICK KEITH COOKE                               APPELLANT

                                  V.

THE STATE OF TEXAS                                     STATE

                              ------------

        FROM THE 355th DISTRICT COURT OF HOOD COUNTY

                              ------------
                     MEMORANDUM OPINION 1 ON
                PETITION FOR DISCRETIONARY REVIEW

                                    ------------

      After reviewing Appellant’s petition for discretionary review, we withdraw

our May 21, 2009 opinion and judgment and substitute the following.

                                  Introduction

      In these consolidated appeals from Appellant’s adjudication on one

indictment for family assault, his conviction on a second indictment for family

assault, and the denial of his petition for writ of habeas corpus, Appellant

Derrick Keith Cooke argues that enhancing his 2002 family assault adjudication

and 2008 family assault conviction from misdemeanors to felonies by virtue of

a 1999 family assault conviction violated the constitutional prohibition on ex

post facto laws and that the trial court abused its discretion by proceeding to

adjudication on the 2002 offense. We affirm.

                                  Background

1.    The first indictment

      In 2002, a grand jury indicted Appellant for assault causing bodily injury

to a family member. The indictment also alleged a 1999 conviction from New

Mexico for assault causing bodily injury to a family member. Pursuant to a plea

bargain, Appellant pled guilty to the charged offense, which the written plea


      1
          … See Tex. R. App. P. 47.4.

                                         2
admonishments identified as a third degree felony. The trial court placed him

on deferred adjudication community supervision for five years.

2.    The petition to proceed to adjudication and the second indictment

      In August 2007, the State filed a petition to proceed to adjudication,

alleging that Appellant had violated the terms of his deferred adjudication

community supervision by assaulting and causing injury to a family member in

June 2007 and by failing to report to his community supervision officer for

several months in 2003, 2006, and 2007. A grand jury also returned another

indictment for assault causing bodily injury to a family member arising from the

2007 alleged offense. The indictment contained an enhancement paragraph

alleging that Appellant had been convicted of assault causing bodily injury to

a family member in the first case in 2002.

3.    Adjudication on the first indictment

      Appellant pleaded “not true” to the allegations in the State’s petition to

proceed to adjudication. He also filed a petition for writ of habeas corpus,

arguing that penal code sections 22.01(b)(2) and (f)(1), when read together,

violate the constitutional prohibitions on ex post facto laws. Appellant offered

into evidence a “Final Order on Criminal Complaint” from the New Mexico

court, which states that the court found Appellant guilty of aggravated battery

against a household member but deferred sentence, and that Appellant had

                                       3
fulfilled all terms and conditions of the deferred sentence. The trial court denied

his petition.

      At the hearing on the State’s petition, Monica Vickers testified that

Appellant and his wife, C.C., are her neighbors and that C.C. is her friend. She

said that on June 18, 2007, she received a call on her cell phone from C.C.

Vickers testified that when she answered the phone, C.C. did not say anything,

but Vickers could hear Appellant yelling at C.C. and C.C. pleading with

Appellant, and then the line went dead. Vickers said that she called 911.

      Hood County deputy sheriff Robert Weldon testified he responded to

Vickers’s 911 call.    He said that when he arrived, C.C. was crying and

hysterical and said, “Thank God you are here. [Appellant has] been holding me

captive in our bedroom.” Weldon testified C.C. told him that she and Appellant

were arguing and that Appellant hit her on the back and ribs with his closed

fist. Weldon said that C.C. told him that when she tried to leave her bedroom,

Appellant grabbed her by the hair and threw her against the bed and that her

hair looked as though it had been pulled. He testified that he did not see any

injuries on C.C.’s face. Weldon said that C.C. told him she had pain in her

shoulders and ribs, though on cross-examination he conceded that he did not

write anything about pain in his report.




                                        4
      Deputy Brook Dezavala photographed the places on C.C.’s body where

she said Appellant had hit her, and the trial court admitted the photos into

evidence. Dezavala testified that the photos showed redness around C.C.’s

neck running from her collarbone to her left breast and broken skin on her left

shoulder.

      C.C. testified that on the day in question, she and Appellant were arguing

and that Appellant shoved her and either pushed or punched her in the ribs or

back. She admitted to having given a written and signed statement to the

police that Appellant had hit her on the shoulder with a closed fist. She denied

that the photos showed bruises or broken skin on her body.

      Appellant’s father, Joe Cooke, testified that he went to Appellant and

C.C.’s house on the night of the incident and did not see any injuries on C.C.

      Other witnesses testified about other aspects of Appellant’s compliance

or noncompliance with the terms of his deferred adjudication, but we will

forego summarizing their testimony because it is not relevant to the trial court’s

findings.

      The trial court found that Appellant violated the terms of his deferred

adjudication by intentionally or knowingly causing bodily injury to C.C. by

striking her on her shoulder, back, and ribs with his fist; adjudicated Appellant




                                        5
guilty of the 2002 assault; and, after hearing punishment-phase evidence,

sentenced him to three years’ confinement.

4.    Conviction on the second indictment

      Appellant was tried on the second indictment in April 2008.             The

evidence presented at trial was essentially similar to the evidence presented at

the adjudication hearing in the other case. Because the evidence presented at

trial does not figure in Appellant’s sole point relating to that case, we will

forego a detailed analysis of the evidence.      A jury convicted Appellant of

assault causing bodily injury to a family member and assessed punishment of

eight years’ confinement.

                            Ex Post Facto Violation

      In his first point in his direct appeal from the adjudication on the 2002

indictment, his first point in his direct appeal from his 2008 conviction, and his

sole point in his habeas appeal, Appellant argues that application of penal code

sections 22.01(b)(2) and (f)(1)—which he claims the State used to enhance the

2002 assault from a Class A misdemeanor to a third degree felony by virtue of

the 1999 New Mexico family assault—violated the federal and Texas

constitutional prohibitions on ex post facto laws. See U.S. Const. art. I, § 10

(prohibiting ex post facto laws); Tex. Const. art. I, § 16 (same); Tex. Penal

Code Ann. § 22.01(b)(2), (f)(1) (Vernon Supp. 2008). The gist of Appellant’s

                                        6
argument is that the legislature did not amend section 22.01 to allow

enhancement by a deferred adjudication until 1999—after Appellant was found

guilty of family assault in New Mexico but before he pleaded guilty to the 2002

offense in Texas. See Act of June 18, 1999, 76th Leg., R.S., ch. 1158, § 1,

1999 Tex. Gen. Laws 4063, 4063 (amending section 22.01 to add subsection

(f), which allowed enhancement under subsection (b)(2) with a deferred

adjudication for family assault), amended by Act of May 20, 2005, 79th Leg.,

R.S., ch. 788, § 1, 2005 Tex. Gen. Laws 2709, 2709 (current version at Tex.

Penal Code Ann. § 22.01(f)(1) (Vernon Supp. 2008)).

      Appellant’s   2002   conviction   was    not   enhanced   by   a   deferred

adjudication; thus, it does not implicate the deferred adjudication provision of

penal code section 22.01(f)(1).    This is true for two reasons.     First, when

Appellant pleaded guilty to the 2002 offense, he signed a judicial confession

admitting that “any enhancement and habitual allegations set forth in the

indictment are true and correct,” i.e., “that prior to the commission of the

[subsequent offense] the defendant had been previously convicted of an assault

with bodily injury against a member of the defendant’s family or household.”

[Emphasis added.]     See Edison v. State, 253 S.W.3d 303, 305 (Tex.

App.—Beaumont 2008, no pet.) (holding judicial confession to prior family

assault conviction alleged in indictment sufficient to prove prior conviction and

                                        7
enhance current family assault to a felony); see also Wilson v. State, 671

S.W.2d 524, 525 (Tex. Crim. App. 1984) (holding a defendant’s plea of true

to an enhancement paragraph provides legally and factually sufficient evidence

to find the paragraph true beyond a reasonable doubt).

      Second, although Appellant claims the New Mexico offense resulted in

deferred adjudication, the “Final Order on Criminal Complaint” he filed in

support of his argument says otherwise. The New Mexico order specifically

says that Appellant was adjudicated guilty: “This court having previously found

the defendant guilty and having deferred sentencing . . . .” Thus, the New

Mexico court deferred sentencing, not adjudication. See N.M. Stat. Ann. § 31-

20-3 (West 2009) (providing that court may defer sentence “[u]pon entry of a

judgment of conviction” (emphasis added)). Because the State did not enhance

Appellant’s 2002 offense with a deferred adjudication, his argument that the

use of a deferred adjudication to enhance the offense violated the ex post facto

prohibition fails.

      Moreover, even if the 1999 family assault charge had been resolved by

deferred adjudication, enhancing the 2002 offense under the 1999 version of

section 22.01(f) would not violate the ex post facto prohibition. The court of

criminal appeals has “upheld the use for enhancement of convictions which

occurred before the effective date of [a new] enhancement provision on the

                                       8
ground that the enhancements punish the new offense rather than the prior

conviction.”    Scott v. State, 55 S.W.3d 593, 596 (Tex. Crim. App. 2001)

(citing Shaw v. State, 529 S.W.2d 75, 76 (Tex. Crim. App. 1975)); see also

McDonald v. Massachusetts, 180 U.S. 311, 312, 21 S. Ct. 389, 390 (1901)

(“The punishment is for the new crime only, but is the heavier if he is an

habitual criminal. . . . The statute, imposing a punishment on none but future

crimes, is not ex post facto.”); Ex parte White, 211 S.W.3d 316, 320 (Tex.

Crim. App. 2007) (“[E]nhancement statutes penalize the new criminal offense

being enhanced rather than the prior offense used for enhancement[,] and . . .

a statute imposing a punishment on only future crimes is not an ex post facto

violation.”).

      Appellant relies upon Munoz v. State, 133 S.W.3d 836, 837-38 (Tex.

App.—El Paso 2004, no pet.) (citing Scott, 55 S.W.3d at 597–98), to support

his argument that enhancement by the 1999 family assault is an ex post facto

violation.   Both cases are distinguishable.   In Scott, the defendant pleaded

guilty to indecency with a child in 1991 in exchange for deferred adjudication.

Scott, 55 S.W.3d at 595.      The version of the Texas deferred adjudication

statute in effect at the time prohibited the use of a successfully-completed

deferred adjudication to enhance a subsequent offense.       Id.   In 1997, the



                                       9
legislature amended code of criminal procedure article 42.12, section 5(c) to

allow use of a deferred adjudication as provided by penal code section 12.42.

Id. at 596. The same act amended section 12.42 to make a successfully-

completed deferred adjudication count as a conviction for the enhancement of

certain crimes. Id. The defendant was later convicted of aggravated sexual

assault and, under the new version of section 12.42, received a mandatory life

sentence. Id. at 595. The court held that enhancing the sentence with the

prior deferred adjudication violated the ex post facto prohibition because of the

explicit limitation on the collateral consequences of deferred adjudication in the

version of article 42.12 that existed when the defendant pleaded guilty to the

prior offense. “[W]hen a statute explicitly restricts the collateral consequences

of an offense, the defendant is entitled to rely on that restriction. Punishment

for the offense is increased by the removal of the statutory restriction, and such

an increase in punishment constitutes an ex post facto law.” Id. at 597–98;

see also Munoz, 133 S.W.3d at 838 (holding appellant, in pleading guilty in

1997, was entitled to rely on language in article 42.12, section 5(c) prior to its

amendment, that explicitly limited the collateral consequences of deferred

adjudication).

      When there is no such statutory restriction, there is no ex post facto

violation. White, 211 S.W.3d at 320. The difference between this case, on

                                       10
one hand, and Scott and Munoz on the other, is that unlike the 1991 version

of the Texas deferred adjudication statute, the relevant New Mexico statute

contains no such explicit restriction upon which Appellant could have relied in

1999. See N.M. Stat. Ann. § 31-20-8 (West 2009); Rodriquez v. State, 227

S.W.3d 842, 845–46 (Tex. App.—Amarillo 2007, no pet.) (holding New

Mexico deferred sentencing statute did not prohibit use of successfully-

completed probation to enhance subsequent offense; thus, enhancement did

not violate ex post facto prohibition).     Absent such a restriction, Appellant

cannot show an ex post facto violation.

      In his petition for discretionary review, Appellant points out for the first

time that the New Mexico “Final Order on Criminal Complaint” states that the

1999 criminal charges are “dismissed,” and argues that, based on that

language, there was no prior New Mexico “conviction” that could be used to

enhance the 2002 conviction. But the order shows that it was not signed until

October 15, 2007, long after Appellant’s indictment and deferred adjudication

in 2002. Appellant had not successfully completed his New Mexico community

supervision and the 1999 charges had not been dismissed at the time he pled

guilty to the subsequent charges in 2002. For this additional reason, Scott and

Munoz do not apply because they        addressed a prior statutory prohibition

against using a successful dismissal or discharge of deferred adjudications for

                                       11
enhancement of subsequent offenses.        See Martinez v. State, No. 05-00-

00517-CR, 2002 WL 257697, *4 (Tex. App.—Dallas 2002, no pet.) (mem.

op., not designated for publication) (distinguishing Scott because appellant had

not successfully completed deferred adjudication community supervision and

obtained a discharge or dismissal and case thus fell outside scope of previous

explicit statutory prohibition).

      We overrule Appellant’s first point in his direct appeal from his

adjudication on the first indictment and his sole point in his habeas appeal.2

      In his sole point in his direct appeal from his conviction on the second

indictment, Appellant adopts and incorporates by reference his arguments from

the other appeals regarding the putative ex post facto violation.        Having

overruled those arguments, we also overrule his sole point in this third appeal

for the reasons stated above.




      2
       … We express no opinion as to the effect of penal code section
22.01(f)(2)—which the legislature enacted in 2005 and which, for the first
time, specifically authorized enhancement of family assault by out-of-state
convictions for conduct substantially similar to the offenses listed in section
22.01(b)(2)—because Appellant did not address that subsection in the trial
court or on appeal. See Act of May 20, 2005, 79th Leg., R.S., ch. 788, § 1,
2005 Tex. Gen. Laws 2709, 2709 (current version at Tex. Penal Code Ann.
§ 22.01(f)(2) (Vernon Supp. 2008)).

                                      12
                            Sufficiency of Evidence

      In his second point in his direct appeal from his adjudication on the first

indictment, Appellant argues that the trial court abused its discretion by

proceeding to adjudication because the State failed to prove that he violated the

terms of his deferred adjudication by committing another assault causing bodily

injury in 2007.

      Appellate review of the decision to adjudicate guilt is “in the same

manner” as review of the revocation of community supervision. Tex. Code

Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2008). Appellate review of

a community supervision revocation is limited to determining whether the trial

court abused its discretion, and we examine the evidence in the light most

favorable to the trial court’s findings. See Cardona v. State, 665 S.W.2d 492,

493–94 (Tex. Crim. App. 1984). The State must prove by a preponderance of

the evidence that the defendant violated the conditions of community

supervision. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993).

The trial judge is the sole trier of facts and determines the credibility of the

witnesses and the weight to be given to the testimony. See Lee v. State, 952

S.W.2d 894, 897 (Tex. App.—Dallas 1997, no pet.). Sufficient evidence of

one violation is adequate to affirm a trial court’s order revoking community

supervision. See Watts v. State, 645 S.W.2d 461, 463 (Tex. Crim. App. [Panel

                                       13
Op.] 1983); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel

Op.] 1980).

      Appellant argues that C.C.’s testimony at the hearing on the State’s

petition that Appellant had not assaulted her renders the evidence insufficient

to revoke his community supervision and proceed to adjudication. But C.C. also

admitted that she had given police a written statement saying that Appellant

had hit her with his fist. Although C.C.’s trial testimony conflicted with her

earlier statements, the trial court was free to disbelieve her trial recantation.

See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (holding

factfinder free to disbelieve complainant’s trial recantation of earlier statements

and that earlier statements were legally sufficient to support guilty verdict).

      Appellant also argues that the police witnesses “could not tie any injuries

suffered by [C.C.] to assaultive actions allegedly committed by” Appellant. But

Deputy Weldon testified that C.C. told him Appellant had hit her with his fist

and caused her to suffer pain, and Deputy Dezavala testified that the

photographs she took showed redness and broken skin in the areas of C.C.’s

body where C.C. said Appellant hit her.

      Considering all of the evidence in the light most favorable to the trial

court’s decision, we hold that the trial court did not abuse its discretion by




                                        14
concluding that Appellant intentionally or knowingly caused bodily injury to C.C.

by striking her with his fist. We therefore overrule Appellant’s second point.

                                  Conclusion

      Having overruled all of Appellant’s points in all three appeals, we affirm

the trial court’s judgments and its denial of Appellant’s petition for writ of

habeas corpus.

                                                 PER CURIAM

PANEL: GARDNER, J.; CAYCE, C.J.; and MEIER, J.

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

DELIVERED: September 21, 2009




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