Affirm and Opinion Filed March 17, 2014




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00451-CR

                       JOSEPH MARSHALL GUTIERREZ, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 6
                                   Dallas County, Texas
                           Trial Court Cause No. F11-71025-X

                             MEMORANDUM OPINION
                           Before Justices Moseley, Francis, and Lang
                                   Opinion by Justice Francis
       Joseph Marshall Gutierrez appeals his conviction for indecency with a child. In six

issues, appellant challenges modifications made to his original probation, claims the trial court

abused its discretion by adjudicating him guilty and revoking his probation, and contends he

received ineffective assistance of counsel at trial. We affirm.

        In November 2011, appellant pleaded guilty to exposing his genitals to J.R., a child

younger than seventeen years. The trial court deferred adjudicating guilt, placed appellant on

community supervision for seven years, and assessed a $2000 fine. Appellant’s community

supervision included thirty conditions: (a) through (dd). Five months later, the State filed a

motion to adjudicate, alleging appellant violated seven conditions of his community supervision.
The trial court denied the motion but ordered two additional conditions of probation, (ee) and

(ff).

        In December 2012, the State again filed a motion to adjudicate, alleging appellant

violated five conditions: (a), (h), (j), (l), and (z). After the State withdrew allegation (a),

appellant entered an open plea and judicially confessed to violating the remaining four

conditions. The trial court adjudicated guilt and sentenced appellant to five years in prison.

        Appellant’s first four issues challenge the trial court’s decision to adjudicate his guilt and

revoke his community supervision. Under these issues, appellant first argues the trial court erred

by modifying his terms of community supervision in July 2012 with docket entries instead of a

formal order modifying his probation. He argues that because the docket entries did not formally

change his terms of probation, the trial court could not have found he violated those terms and

adjudicated him guilty.

        The record shows that, on July 16, 2012, the trial court made several entries in the docket

sheet regarding additional terms of probation and conditions (ee) and (ff) were included in the

trial court’s order modifying appellant’s original conditions of community supervision. To the

extent appellant claims the docket entries violated his right to due process and could not be the

basis of adjudicating him guilty, we conclude the docket entries had no bearing on the trial

court’s decision to adjudicate his guilt. The State’s December 2012 motion to proceed with an

adjudication of guilt alleges appellant violated five conditions of probation, but all of those

allegations were contained in the original November 2011 order of deferred adjudication. The

docket entries were nothing more than docket entries. We overrule appellant’s first four issues.

        In his fifth issue, appellant claims the trial court committed constitutional error by

accepting appellant’s plea of true and adjudicating guilt without inquiring in detail about why

appellant failed to pay costs and fines.

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       Three of the four conditions the State alleged in its motion to proceed with adjudication

involved appellant’s failure to pay court costs, fines, supervision fees, and the cost of a

urinalysis. The fourth condition, however, was that appellant participate in counseling through

an approved registered sex offender treatment provider within 45 days from referral. Appellant

pleaded true to all four allegations and testified he had “been working on and off the whole time”

he was on probation. The State presented evidence supporting the allegation that appellant had

not obtained a sex offender evaluation or participated in any type of sex offender treatment since

the time he was initially placed on community supervision in November 2011. Because finding

any one violation true is sufficient to support a trial court’s decision to adjudicate guilt and

sufficient evidence supports the finding he failed to participate in counseling, we need not

address appellant’s complaint regarding the other three conditions. See Smith v. State, 286

S.W.3d 333, 342 (Tex. Crim. App. 2009); Jones v. State, 571 S.W.2d 191, 193−94 (Tex. Crim.

App. [Panel Op.] 1978). We overrule appellant’s fifth issue.

       In his final issue, appellant claims he received ineffective assistance of counsel at trial

because counsel failed to raise the issue of appellant’s inability to pay during the hearing on the

motion to proceed with adjudication. In light of our disposition of issue five, we conclude

appellant’s sixth issue lacks merit. We overrule his sixth issue.

       We affirm the trial court’s judgment.


                                                      /Molly Francis/
Do Not Publish                                        MOLLY FRANCIS
TEX R. App. P. 47                                     JUSTICE
130451F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JOSEPH MARSHALL GUTIERREZ,                         On Appeal from the Criminal District Court
Appellant                                          No. 6, Dallas County, Texas
                                                   Trial Court Cause No. F11-71025-X.
No. 05-13-00451-CR        V.                       Opinion delivered by Justice Francis,
                                                   Justices Moseley and Lang participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 17th day of March, 2014.




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE




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