AFFIRMED
MAY 17, 1990
NO. 10-89-199-CR
Trial Court
# 87-696-C
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
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MICHAEL WADIN ISSA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
* * * * * * * * * * * * *
From 54th Judicial District Court
McLennan County, Texas
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O P I N I O N
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On December 11, 1987, Appellant pleaded guilty to theft. See TEX. PENAL CODE ANN. § 31.03 (Vernon 1989). The court deferred adjudication and placed him on probation for five years. See TEX. CODE CRIM. PROC. ANN. art. 42.12(5)(a) (Vernon Supp. 1990). The State filed a motion to revoke Appellant's probation alleging that he had committed a subsequent theft offense. On May 25, 1989, the court held a hearing on the motion to revoke probation, found Appellant guilty, and sentenced him to ten years in jail. Appellant complains that the court erred when it: (1) sentenced him immediately upon finding him guilty, without giving him the opportunity to be heard on punishment; (2) failed to require a written report from a probation officer; (3) did not allow him access to a presentence report; and (4) sentenced him without giving him the opportunity to withdraw his guilty plea. He also asserts that there was no evidence to support a finding that he committed a subsequent offense. The judgment will be affirmed.
During the hearing on the motion to revoke, the State called three witnesses, Appellant cross-examined the witnesses, and the State rested. Appellant also rested without calling any witnesses. The court then heard arguments from both sides. Following argument, Appellant requested permission to call Appellant's probation officer for the purpose of showing that Appellant had difficulty understanding English. This request was denied. Appellant's first point is that the court erred when it sentenced him without giving him the opportunity to present mitigating evidence.
Because Appellant did not call any witnesses when he had the opportunity, and because he did not object on the ground he now asserts on appeal, he has waived any complaint. See TEX. R. APP. PROC. 52; TEX. R. CRIM EVID. 103. Furthermore, even assuming that the error was properly preserved, once a decision to adjudicate guilt is reached, the court may assess punishment immediately. McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. 1978). Point one is overruled.
Appellant's second point is that the court erred when it did not require a written report from a probation officer. This point is overruled because the transcript contains a written report from Sue Lankin, a probation officer, listing the positive and negative events which transpired while Appellant was on probation, and recommending that Appellant's probation be revoked.
Point three is that the court erred when it did not give Appellant access to a presentence investigation report. The transcript contains the presentence investigation report. Furthermore, at the hearing on Appellant's motion for a new trial, Appellant's attorney admitted that he knew the report was available, that he could have seen it if he had requested, and that he never asked to see it because he had "been informed that everything was okay, and [that Appellant] was going to get deferred adjudication." Clearly Appellant was permitted to see the report, he simply chose not to. See TEX. CODE CRIM. WAS. ANN. art. 42.12(9) (Vernon Supp. 1990). Point three is overruled.
Appellant's fourth point is that the court erred when it sentenced him to ten years in prison without: (1) allowing him to withdraw his guilty plea; or (2) following the prior plea-bargain, wherein the State recommended five years in prison. At a probation revocation hearing, the court has the discretion to revoke the probation and proceed as if there had been no probation. Id. at art. 42.12(26)(a). The court did not abuse its discretion when it revoked Appellant's probation and proceeded on his prior guilty plea. Furthermore, a court's decision to proceed to an adjudication of guilt on the original charge will not be disturbed unless there was an abuse of discretion. Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. [Panel Op.] 1979). Here, the court did not abuse its discretion when it adjudged him guilty of the original charge, theft.
Additionally, although under the plea-bargain agreement Appellant was placed on probation for five years, the court did not err when it sentenced Appellant to ten years in prison. See McNew, 608 S.W.2d at 169. Point four is overruled.
Finally, in point five, Appellant argues that there was no evidence to support a finding that he violated a condition of his probation, and no evidence to support the adjudication of his guilt. The State has the burden of proving every element of the offense relied on as a basis for revocation of probation by a preponderance of the evidence. Cross v. State, 586 S.W.2d 478, 481 (Tex. Crim. App. 1979). When sufficiency of the evidence is challenged, the evidence is viewed in the light most favorable to the court's finding. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). Furthermore, the court is the judge of the credibility of the witnesses and the weight to be given their testimony. Id.
Curtis Hand, a probation officer, testified at the revocation hearing that Appellant was on probation. Michael Rozacky, a "unit director" at H.E.B., testified that on December 6, 1988, he observed Appellant leave H.E.B. with $267 worth of groceries after paying only $47. He also stated that none of his employees had been authorized to allow Appellant to have the groceries without paying the entire amount. Tommy Williamson, a service director at H.E.B., claimed that not all the items that Appellant left the store with were "scanned," and that the checker "never touched" most of the items. Williamson waited for Appellant to leave the store, approached him in the parking lot and said: "I don't believe you paid for everything you bought." He then escorted Appellant back into the store and called the police. Based on this evidence and the record as a whole, the State met its burden of proving by a preponderance of the evidence that Appellant committed theft while on probation. Point five is overruled.
Affirmed.
TERRY R. MEANS
DO NOT PUBLISHJustice