Lee Aulton Jones v. State of Texas

Lee Aulton Jones v. State of Texas

IN THE

TENTH COURT OF APPEALS

No. 10-00-123-CR

     LEE AULTON JONES,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 87th District Court

Freestone County, Texas

Trial Court Nos. 95-054-CR, 95-055-CR and 95-056-CR

                                                                                                                                                                                                                          

O P I N I O N

                                                                                                                

      Lee Aulton Jones pleaded guilty to three counts of theft over fifteen-hundred dollars and under twenty-thousand dollars in November 1996. The court sentenced him to two years’ imprisonment, suspended imposition of sentence and placed him on community supervision for five years. The court revoked Jones’s community supervision in March 2000 and sentenced him to two years’ imprisonment on each cause. Jones complains in two points that: 1) the trial court erred by improperly ordering that trial court cause nos. 95-054-CR and 95-055-CR run consecutively; and 2) the State failed to prove the allegations in the motion to revoke by a preponderance of the evidence.

      Texas Penal Code section 3.03 states that “when the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action” then, notwithstanding the exceptions listed, the sentences shall run concurrently. Tex. Pen. Code Ann. § 3.03(a) (Vernon Supp. 2001). One definition of “same criminal episode” is the commission of two or more offenses where the offenses are the repeated commission of the same or similar offense. See Tex. Pen. Code Ann. § 3.01(2) (Vernon 1994). A defendant is prosecuted in a “single criminal action” whenever the allegations and evidence of more than one offense arising out of the same criminal episode are presented in a single trial or plea proceeding. See LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim App. 1992). The trial court is prohibited from ordering consecutive sentences when the defendant is prosecuted for more than one offense in a single criminal action. Id.

      It is clear from the record that Jones’s three theft offenses arose out of the same criminal episode. It is also clear that Jones was prosecuted in a single criminal action. At the plea proceeding on trial court cause nos. 95-054-CR, 95-055-CR and 95-056-CR, the trial court accepted a single plea of guilty, sentenced Jones to two years’ imprisonment on each cause, suspended sentence and placed him on community supervision for five years for each offense alleged. The State concedes that the cumulation order was improper and agrees that the charged offenses arose from the same criminal episode and were prosecuted in a single plea proceeding. Point one is sustained.

      Jones argues in his second point that the trial court improperly revoked his community supervision because the evidence presented by the State at the hearing on the motion to revoke is insufficient to prove the fifteen allegations by a preponderance of the evidence. However, evidence of a single violation will support a court’s decision to revoke community supervision. See Dunn v. State, 997 S.W.2d 885, 887 (Tex. App.—Waco 1999, pet. ref’d.). We need consider only whether the State adduced sufficient proof of any one violation.

      Although, the State alleged fifteen elements in its motion to revoke, we will focus only on allegation eight, driving while license suspended. The State introduced certified copies of Jones’s driving record which indicated that his license was revoked for delinquent child support, effective August 4, 1999. His license had not been reinstated at the time of certification, February 2, 2000. Jones argues that he could not be prosecuted for driving while license suspended because he did not receive actual notice of revocation. The Transportation Code provides that lack of actual notice of the revocation is an affirmative defense to the prosecution of the offense of driving while license suspended. However, notice is presumed when the State mails the notice in accordance with the law. See Tex. Transp. Code Ann. § 521.457 (Vernon Supp. 2001). The State introduced a certified copy of the certificate of mailing indicating that notice of revocation was sent on August 10, 1999 in accordance with the law. Officer Thomas Echartea testified that he witnessed Jones driving on January 19, 2000 in Fairfield, Texas. He testified that he stopped Jones based on prior knowledge that Jones’s license had been revoked. Jones failed to produce any evidence to counter the presumption of notice under section 521.457. Therefore, we find that the proof adduced by the State on the offense of driving while license suspended is sufficient to support the revocation of Jones’s community supervision. Point two is overruled.

      Accordingly, we modify the judgments in trial court cause nos. 95-054-CR and 95-055-CR to delete the cumulation order. We affirm the judgment as modified. See Tex. R. App. P. 43.2(b). 

                                                                               REX D. DAVIS

                                                                               Chief Justice

 

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Judgment modified and affirmed as modified

Opinion delivered and filed August 29, 2001

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relevant apart from showing character conformity by demonstrating the deceased's intent, motive, or state of mind.  See Hayes v. State, 161 S.W.3d 507 (Tex. Crim. App. 2005); Tate v. State, 981 S.W.2d 189 (Tex. Crim. App. 2003); Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002).  But these cases are inapposite.  Moore did not seek to introduce evidence of specific, violent acts.  He wanted to introduce evidence of prior drug use and drug possession. There is nothing in the record that connects the possession and use of marijuana and cocaine to Hill’s alleged violent acts or that he was the first aggressor.  The proffered testimony is irrelevant, and the trial court did not abuse its discretion in excluding it.  Having determined the proffered evidence was not relevant, we need not review Moore’s complaints under Rules of Evidence 403 or 404.  Moore’s second and third issues are overruled.

Conclusion

            Having overruled each issue, we affirm the judgment of the trial court.

 

                                                                        TOM GRAY

                                                                        Chief Justice

 

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

            (Justice Vance concurs in the judgment)

Affirmed

Opinion delivered and filed December 5, 2007

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