In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00184-CR
______________________________
GENE EVERETT MOORE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 36,389-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Gene Everett Moore, seventy-four years old at the time of trial, was charged with two counts of aggravated sexual assault and was released on his bond of $100,000.00. Moore then entered a plea of guilty and elected to have a jury assess his punishment. (1)
In the midst of the punishment hearing, at the close of the morning's testimony, and after the jury had been recessed for the day, the court stated that it had a concern about the sufficiency of the $100,000.00 bond (the amount of which had been set by a different magistrate) that had been posted at the time of Moore's arrest, about nine months before trial. The court noted that even though Moore was not disqualified from receiving community supervision, he was faced with the real prospect of long-term incarceration. Further, during the morning's testimony, it was shown that when Moore had been arrested, he had his clothes and money packed, giving the appearance that he was intending to leave. The court then acknowledged that Moore had not failed to appear each time he was required to be in court and asked for comment from counsel concerning the adequacy of the existing bond. After hearing counsels' arguments (during which Moore's counsel objected to an increase in the bond by noting that Moore's past conduct did not suggest that the bond was insufficient to assure his attendance at court and that it would make it difficult for counsel to complete his trial preparation with his witnesses for the next day without Moore's assistance), the court raised Moore's appearance bond to $500,000.00. The punishment hearing resumed the next morning.
In his sole point of error on appeal, Moore argues that the decision by the trial court to raise the bond in mid-trial was "not a reasoned, decision but a gag reflex."
Moore correctly observes that the rules governing the setting of the amount of bond for a defendant are set out in Article 17.15 of the Texas Code of Criminal Procedure:
The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
(1) The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
(2) The power to require bail is not to be so used as to make it an instrument of oppression.
(3) The nature of the offense and the circumstances under which it was committed are to be considered.
(4) The ability to make bail is to be regarded, and proof may be taken upon this point.
(5) The future safety of a victim of the alleged offense and the community shall be considered.
Tex. Code Crim. Proc. Ann. art. 17.15 (Vernon 2005).
Moore is also correct in pointing out that factors to be considered in applying these rules include (1) the length of the potential sentence which might be received, (2) the nature of the offense with which the defendant has been charged, (3) the defendant's work record, family ties, and length of residency, (4) the conformity by the defendant with previous bond conditions, (5) the amount of other outstanding bonds, and (6) aggravating factors involved in the offense. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. [Panel Op.] 1981).
In this case, the trial court apparently was strongly swayed by the evidence presented during the half day of trial. The only evidence that this seventy-four-year-old man might abscond was the testimony that before he was originally arrested (some nine months before trial commenced), he had his clothes packed and his money ($660.00) readily available as if for flight. It was upon this testimony (and, perhaps, the general drift of the testimony at trial which might have given some indication of what kind of sentence might have been expected to be meted out by the jury) that the trial court indicated led it to believe that Moore might now, on the eve of sentencing, attempt to vanish.
There is no precise standard for appellate review of bond settings. Ex parte Pemberton, 577 S.W.2d 266, 267 (Tex. Crim. App. [Panel Op.] 1979); In re Hulin, 31 S.W.3d 754, 758 (Tex. App.--Houston [1st Dist.] 2000, orig. proceeding). The fact that the existing bond had proven entirely adequate up to the last day of the trial provides a strong suggestion that it would remain so. However, the court did verbalize its concern and explained reason for that newly developed concern that Moore (who had the immediacy of a potential lengthy sentence looming overhead) might now be a flight risk where he had not been one previously. There is authority for a trial court to alter the terms of release under bond. See Tex. Code Crim. Proc. Ann. art. 17.09, § 3 (Vernon Supp. 2008) (providing that if the trial judge or magistrate "finds that the bond is defective, excessive or insufficient in amount, or that the sureties, if any, are not acceptable, or for any other good and sufficient cause, such judge or magistrate may . . . require the accused to give another bond in such amount as the judge or magistrate may deem proper"); see also Tex. Code Crim. Proc. Ann. art. 17.15 (setting forth rules for fixing amount of bail); Martin v. State, 176 S.W.3d 887, 904-05 (Tex. App.--Fort Worth 2005, no pet.); Hulin, 31 S.W.3d at 760 (indicating likelihood of lengthy prison sentence is factor to be considered in determining amount of pretrial bond sufficient to secure presence of accused at trial). But see Meador v. State, 780 S.W.2d 836, 837 (Tex. App.--Houston [14th Dist.] 1989, no pet.) (holding trial court abused discretion by revoking appellant's bond of $100,000.00 and increasing amount of bond required to $200,000.00 because appellant was three to five minutes late to court and appeared without his attorney). In this kind of ruling, we do not look to determine if the action of the trial court is what we would have done under the same circumstances but, rather, whether the trial court abused its discretion.
However, in this matter, it is not necessary for us to determine the question of whether the order raising the bond was an abuse of judicial discretion. We fail to see how the actions of the trial court affected this trial. Although there were statements by Moore's attorney concerning some difficulties that Moore's incarceration for the remainder of the day might pose in trial preparation, there was no evidence presented concerning this issue. Even viewing it retrospectively, although the incarceration brought about by raising of the bond created inconvenience and consternation, there is nothing to show that Moore's defense was substantially harmed by this course of action. Under the circumstances, Moore simply began his permanent incarceration a day earlier than he would have otherwise. Having been convicted of the crime with which he was charged, he would have been incarcerated from the time the jury returned its verdict of imprisonment. From that time forward, Moore was no longer incarcerated under bond awaiting trial; the bond set by the trial court is no longer in effect. Accordingly, the issues of whether the trial court should have had his bond kept at the same pretrial level and whether it was an abuse of discretion to have raised it five-fold during the trial are moot.
We affirm the judgment.
Bailey C. Moseley
Justice
Date Submitted: March 19, 2009
Date Decided: March 20, 2009
Do Not Publish
1. Assessing punishment is precisely what the jury did, assessing it at life imprisonment.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00232-CR
______________________________
REGENA NELL ECHOLS GALLAGHAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court
Lamar County, Texas
Trial Court No. 22083
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
MEMORANDUM OPINION
Regena Nell Echols Gallaghan[1] appeals the revocation of her community supervision for the underlying offense of forgery of a financial instrument, repeat offender, and resulting sentence of six years imprisonment. The States motion to revoke community supervision alleged that Gallaghan acquire[d] or otherwise exercise[d] control over, property, to-wit: electronics, of the value of less than $1,500, from Josh Benedict, representative of Wal-Mart, the owner thereof, without the effective consent of the owner, and failed to pay court costs, community supervision fees, Crimestoppers program fee, attorneys fees, a $500.00 fine, and restitution pursuant to her conditions of community supervision.
Gallaghan complains that the indictment for the underlying forgery conviction was fundamentally defective because the indictment was for writing forged checks to McCoys Lumber but the checks were apparently to Cavenders. Thus, Gallaghan asserts the position that she was, therefore, tried for a crime for which she was not indicted, and the conviction is, therefore, void. Gallaghan further asserts that the evidence is insufficient to prove that she stole from Wal-Mart (an act which would be a violation of one of the conditions of her community supervision). Finally, Gallaghan maintains that even if the evidence showed that she failed to pay the court costs, community supervision fees, Crimestoppers program fee, attorneys fees, a $500.00 fine, and restitution, there was insufficient evidence to demonstrate that she had the ability to pay those funds.
I. The Underlying Forgery Indictment Was Not Fundamentally Defective
In this case, count two[2] of the indictment alleged Gallaghan pass[ed] to Brian Prichard, as a representative of McCoys Lumber Company, a forged writing knowing such writing to be forged, and such writing had been so made that it purported to be the act of Sammy Carroll or Oletha Davis, who did not authorize the act. Again, the indictment included copies of the checks. However, the checks were made out to Cavenders instead of McCoys Lumber and contained the allegedly forged signature of Osterbuhr, not Carroll or Davis, as stated in the written count. Pursuant to a plea bargain, Gallaghan pled guilty to the indictment. The trial courts judgment listed Cavenders Boot City as the victim of the offense.
Gallaghan cites to several cases in her brief for the proposition that she may complain on appeal from a community supervision revocation proceeding that the underlying indictment was fundamentally defective.[3] These cited cases are from a time when failure to object to a defect of substance did not waive error on appeal; [t]he reasoning was that an indictment that contained a substantive defect was void and therefore insufficient to invoke the jurisdiction of the court. Teal v. State, 230 S.W.3d 172, 175 (Tex. Crim. App. 2007). This is no longer the law. Id. A charge is fundamentally defective if it authorizes a conviction on a set of facts that do not constitute an offense. Zuckerman v. State, 591 S.W.2d 495, 496 (Tex. Crim. App. [Panel Op.] 1979). The proper test to determine if a charging instrument alleges an offense is whether the allegations in it are clear enough that one can identify the offense alleged. If they are, then the indictment is sufficient to confer subject matter jurisdiction. Teal, 230 S.W.3d at 180.
Gallaghan does not complain that the indictment failed to allege the offense of forgery. Instead, she complains that the indictment set forth a different forgerythat of Carroll or Davis instead of Osterbuhr.
Thus, Gallaghans complaint is one covered by Article 1.14 of the Texas Code of Criminal Procedure.
If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.
Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005). Because Gallaghan failed to object to the defect in the underlying proceeding, her argument has been waived. Teal, 230 S.W.3d at 178 ([A]ll substantive defects in indictments are waiveable under the statutes and these defects do not render the indictment void.). Moreover, Teal instructs us to look at the indictment as a whole, not to its specific formal requisites. Id. at 180. Because the indictment incorporated the checks (which contained the proper victim of the offense and the correct name of the signature forged), Gallaghans argument that she was convicted for committing an offense against a different person from the complaint in the offense on trial, must fail.
We overrule this point of error.
II. Trial Court Did Not Abuse Its Discretion in Revoking Community Supervision
Next, Gallaghan complains that the evidence was insufficient to prove that she violated her community supervision by committing another offense.
A. Standard of Review
We will review the trial courts decision to revoke community supervision for an abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.Texarkana 2003, no pet.). The trial court does not abuse its discretion if the order revoking community supervision is supported by a preponderance of the evidence; in other words, if the greater weight of the credible evidence would create a reasonable belief that the defendant has violated a condition of his community supervision. Rickels, 202 S.W.3d at 76364; T.R.S., 115 S.W.3d at 32021.
Considering the unique nature of a revocation hearing and the trial courts broad discretion in the proceedings, the general standards for reviewing sufficiency do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.Texarkana 2003, pet. refd). Instead, we review the trial courts decision regarding community supervision revocation for an abuse of discretion and examine the evidence in a light most favorable to the trial courts order. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); T.R.S., 115 S.W.3d at 321; Pierce, 113 S.W.3d at 436 (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981)). If a single ground for revocation is supported by a preponderance of the evidence and is otherwise valid, then no abuse of discretion is shown. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); T.R.S., 115 S.W.3d at 321 (citing Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.Texarkana 1995, pet. refd)).
B. Gallaghans Testimony Leads to the Finding that She Committed Theft
Gallaghan argues that her plea of true to the States motion to revoke community supervision was not a plea as to each and every allegation. Following this argument further, Gallaghan maintains that the State was required to introduce evidence to prove either that (1) she committed an offense in violation of the terms of her community supervision by a preponderance of the evidence, or (2) she had not only the responsibility to pay the court costs, community supervision fees, Crimestoppers program fee, attorneys fees, $500.00 fine, and restitution ordered by the court, she possessed the ability to do so.
Gallaghan filed a written plea to the motion to revoke community supervision, in which she acknowledged in writing that each and every allegation contained in the Petition was true.[4] In open court, Gallaghan was asked:
THE COURT: In Cause Number 22083, which is a motion to revoke your community supervision, Im looking at a document entitled written plea admonishments on motion to revoke community supervision or petition to proceed to adjudication. Its dated today. It bears you and Mr. Massars signatures. Im going to show you this document and ask you, do you recall signing this document?
THE DEFENDANT: Yes, sir.
. . . .
THE COURT: . . . . Now, you understand, in each of these documents there is a judicial confession. In the motions to revoke youre stating that you violated the terms and conditions of your probation. And in the theft of property of under 1,500 with two priors, youre confessing to the fact that you did commit that offense and that you have two prior convictions. Do you understand that?
THE DEFENDANT: Yes, sir.
. . . .
THE COURT: . . . . In Cause Number 22083, which is a motion to revoke your community supervision, how do you plead, true or not true?
THE DEFENDANT: True.
The theft allegation contained within the motion to revoke Gallaghans community supervision gave rise to a separate prosecution for theft, in which Gallaghan also pled guilty.[5] A plea of true, standing alone, is sufficient to support the revocation of community supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979).
In addition to Gallaghans testimony, her husband, John, testified as well. John related that Gallaghan had anger issues and became angry upon discovering that DVDs she had purchased from Wal-Mart were messed up. John testified further that, She went to take them back; they refused to take them because they were already opened. Well, she got upset and she did what she had to do. Gallaghan explained that she got very angry, went and got the three same movies and I traded them out. She testified that her action in attempting to take the new DVDs was very stupid.[6]
Considering the record in a light most favorable to the trial courts ruling, we find that the greater weight of the credible evidence could create a reasonable belief that Gallaghan committed theft in violation of the condition of community supervision requiring her to abstain from committing an offense against the laws of Texas, we affirm the trial courts judgment. Therefore, the trial court did not abuse its discretion in revoking Gallaghans community supervision.[7]
III. Conclusion
We affirm the trial courts judgment.
Bailey C. Moseley
Justice
Date Submitted: June 28, 2011
Date Decided: July 15, 2011
Publish
[1]The courts judgment in companion case number 06-10-00231-CR refers to Gallaghan Regena Echols, and in cause number 06-10-00233-CR, she is referred to as Regena Nell Gallaghan. To avoid confusion, we list Gallaghans full name in this opinion as well as in our opinions in the above-referenced companion cases.
[2]Count one of the States indictment for the underlying offense of forgery alleged that Gallaghan altered or executed a check so it is purported to be the act of Jill Osterbuhr, who did not authorize the act. The indictment contained a copy of the check purporting to bear Jill Osterbuhrs signature. Gallaghan does not complain about the indictment relating to this count.
[3]See Morgan v. State, 571 S.W.2d 333 (Tex. Crim. App. 1978).
[4]Gallaghan asserts that her written judicial confession was not introduced as evidence at the trial courts hearing and cannot be considered. We disagree. The written confession signed by Gallaghan was made as part of plea admonishmentsStates Exhibit No. 1filed with the district clerk and included in the clerks record that is before us. We review the entire record when reviewing complaints regarding sufficiency of the evidence. Jackson v. Virginia, 443 U.S. 307, 334 (1979).
[5]Gallaghans pleas on her motion to revoke in this cause, as well as a motion to revoke in another cause for an underlying offense of credit/debit card abuse, and the separate theft charge arising from the Wal-Mart incident were all heard simultaneously. Filing separate briefs, Gallaghan appealed the trial courts revocation of community supervision for credit/debit card abuse in our cause number 06-10-00231-CR, as well as her conviction for theft in cause number 06-10-00233-CR.
[6]Gallaghan argues that her testimony did not establish that she left the store with the DVDs or that the offense was committed in the county where the trial [was] sought. However, theft is unlawful appropriation, or taking, of property with the intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03(a) (West 2011). [A]sportation--the act of carrying away or removing property--is not an element of statutory theft. Hawkins v. State, 214 S.W.3d 668, 670 (Tex. App.Waco 2007, no pet.); see Nautilus Ins. Co. v. Steinberg, 316 S.W.3d 752, 756 (Tex. App.Dallas 2010, pet. denied) (citing Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App. 1982)); see also Edwards v. State, 440 S.W.2d 648, 649 (Tex. Crim. App. 1969). Also, because the conditions of Gallaghans community supervision prevented her from committing an offense against the laws of this State, or any other State or of the United States, the theft was not required to be committed in Lamar County for the purposes of the revocation proceeding.
[7]Because the ground alleging Gallaghan violated her community supervision by committing theft was supported by a preponderance of the evidence, we need not reach Gallaghans complaints that the State failed to prove she had the ability to pay the court costs, community supervision fees, Crimestoppers program fee, attorneys fees, $500.00 fine, and restitution imposed by the conditions of community supervision.