Opinion filed June 25, 2009
In The
Eleventh Court of Appeals
__________
No. 11-07-00335-CR
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BRUCE CARLTON WAGGONER, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 15090B
MEMORANDUM OPINION
The trial court revoked Bruce Carlton Waggoner’s community supervision for violating the
terms of his court-ordered supervision, adjudicated his guilt, and imposed a sentence of confinement
for twenty-five years. We affirm.
Background Facts
On May 2, 2005, Waggoner pleaded guilty to the third degree felony offense of possession
of a controlled substance by fraud and true to two enhancement allegations. The trial court placed
Waggoner on deferred adjudication community supervision for ten years. The State filed a motion
to revoke community supervision and adjudicate, alleging that Waggoner had violated a number of
conditions of his community supervision, including failing to report; failing to attend substance
abuse treatment programs; and failing to pay fees, fines, and restitution. Waggoner pleaded true to
all but one of the State’s allegations, and the trial court sentenced him to sixty days confinement and
reinstated his community supervision.
The State filed a second motion to revoke and adjudicate, alleging that Waggoner had
committed a new criminal offense by harassing an individual, had failed to report, and had failed to
pay his fees and restitution. Waggoner pleaded not true. The trial court found that Waggoner had
failed to report to his supervision officer five times, had not completed his 320 hours of community
service, and had not paid a $140 lab fee. The trial court ordered a presentence investigation (PSI)
and a psychological evaluation. After their completion, the trial court held an evidentiary hearing
and sentenced Waggoner to twenty-five years confinement.
Issues on Appeal
Waggoner presents five issues on appeal. He argues initially that the trial court abused its
discretion by revoking his community supervision. Next, Waggoner argues that the trial court
assessed an illegal sentence because it did not make a finding of guilt. Similarly, he asserts that the
trial court assessed an illegal sentence because it did not make a finding of true to the enhancement
allegations. His fourth and fifth issues address the trial court’s use of enhancements during
punishment. Waggoner argues that a 1998 theft conviction could not be used to enhance his current
sentence or, alternatively, that it could not be used twice for enhancement purposes.
Revocation of Community Supervision
Standard of Review.
If the State proves all the elements of a single violation, the trial court is within its discretion
to revoke community supervision. Watts v. State, 645 S.W.2d 461, 463 (Tex. Crim. App. 1983).
The State’s burden of proof is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871,
873 (Tex. Crim. App. 1993). Only when the State fails to meet its burden on every allegation does
the trial court abuse its discretion. Reid v. State, 834 S.W.2d 125, 126 (Tex. App.—Houston [1st
Dist.] 1992, no pet.).
Failure to Report.
The State alleged that Waggoner failed to report to his supervision officer the months of
Novenmber 2006 and January 2007 through April 2007. Waggoner does not deny that he failed to
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report but raises a due diligence defense and a lack of transportation to excuse his absence. Due
diligence does not apply to Waggoner’s case. While lack of transportation is a relevant consideration
at trial, the evidence does not establish that the trial court abused its discretion by finding that
Waggoner violated the conditions of his community supervision.
It is an affirmative defense to a motion to revoke that a “supervision officer, peace officer,
or other officer with the power of arrest under a warrant issued by a judge for that alleged violation
failed to contact or attempt to contact the defendant in person.” TEX . CODE CRIM . PROC. ANN .
art. 42.12, § 24 (Vernon Supp. 2008) (emphasis added). This is referred to as the due diligence
defense. However, the Court of Criminal Appeals has held that the due diligence defense cannot be
raised when a defendant is arrested within the community supervision period. Because Waggoner
was arrested within the community supervision period, the due diligence defense does not apply.
Failing to report to a supervision officer as ordered by a judgment is not excused merely by
an inability to travel. See Valdez v. State, 508 S.W.2d 842, 844 (Tex. Crim. App. 1973) (car failure
in and of itself does not excuse a failure to report); see also Hurd v. State, 483 S.W.2d 824, 824-25
(Tex. Crim. App. 1972) (hospitalization is not an excuse for failing to report when the defendant had
a chance to contact his supervisor upon release but did not). Waggoner’s transportation troubles do
not excuse his failure to report absent evidence that he could not find alternative transportation. We
note that Waggoner was able to travel to Mexico and that he never complained to his supervisor
about a lack of transportation. The trial court was within its discretion to find that Waggoner had
failed to report as required and to revoke his community supervision solely on the basis of this
allegation.
Failure to Complete Community Service.
The State also alleged that Waggoner failed to complete his court-ordered community
service. Waggoner does not deny the failure but claims that a bad back prevented him from doing
so. Waggoner testified that he had several ruptured disks and that his doctor never released him to
return to work. Waggoner had even been denied enrollment to the Cenikor program for drug
rehabilitation due to his back condition. The State notes that Waggoner did not produce a doctor’s
report and that, without one, his excuse was only supported by his self-serving statements. The State
also points to evidence that, despite his back condition, Waggoner was able to steal trailers, water
heaters, furniture, and bathtubs while on community supervision.
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The trial court is the sole trier of fact and is responsible for judging the credibility of
witnesses. Naquin v. State, 607 S.W.2d 583, 586 (Tex. Crim. App. 1980). The trial court could
reasonably disbelieve the severity of Waggoner’s back problems, especially in light of the physical
demands of his criminal pursuits. The trial court, therefore, did not abuse its discretion by revoking
Waggoner’s community supervision solely on this basis. Issue One is overruled.
Absence of Oral Pronouncements
Waggoner contends that the trial court imposed an illegal sentence because it never made an
oral pronouncement of guilty. We agree with the State that a finding of guilt was implied by the trial
court when it revoked probation and ordered a PSI. The lack of an express oral pronouncement of
guilt by the trial court does not render the written judgment void. Villela v. State, 564 S.W.2d 750,
751 (Tex. Crim. App. 1978). In Villela, the trial court assessed punishment without pronouncing
guilt; the Court of Criminal Appeals affirmed the court’s decision. Id. The court held that, “[w]hen
the trial judge, after admonishing the appellant, accepting the appellant’s pleas, and hearing the
State’s evidence, held the assessment of punishment in abeyance and ordered a presentence
investigation, he necessarily implied that he had found the appellant guilty in each case.” Id.; see
also Sanchez v. State, 222 S.W.3d 85, 88 (Tex. App.–Tyler 2006, no pet.) (ordering a PSI implies
a finding of guilt). Because the trial court revoked Waggoner’s community supervision and ordered
a PSI, it impliedly found him guilty. The trial court, therefore, did not assess an illegal sentence.
The second issue is overruled.
Waggoner also argues that his sentence was illegal because the trial court did not make a
finding of “true” regarding two enhancement allegations. Again, we agree with the State that the
record implies that the trial court found the enhancements true.
Waggoner leans on Harris to support his position. Harris v. State, 153 S.W.3d 394 (Tex.
Crim. App. 2005). In Harris, the trial court sentenced the defendant to ten years confinement. Id.
The next day, it recalled the defendant, explained that – because the State had introduced evidence
of prior felony convictions for enhancement purposes – it could not impose a sentence for less than
twenty-five years confinement, and resentenced him to twenty-five years confinement. Id. at 396-97.
The Court of Criminal Appeals held that the trial court’s subsequent attempt to bring Harris back to
court to resentence him with enhancements violated double jeopardy. Id.
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The principles of double jeopardy are not applicable to the case before us. At Waggoner’s
initial plea hearing, the trial court admonished him regarding the effect of the enhancements and, at
the close of the hearing, stated that it was prepared to find the enhancement paragraphs true. At the
motion to revoke hearing, the court sentenced Waggoner to twenty-five years in prison, which the
trial court stated was consistent with the range of punishment. All of these events demonstrate that
the trial court found the enhancement paragraphs true even in the absence of an explicit oral
pronouncement. The record supports a finding of true, and the written judgment is sufficient in the
absence of an oral pronouncement. Additionally, Harvey reminds us of the “rule that an accused,
having entered a plea of ‘true’ to an enhancement paragraph of the indictment, cannot be heard to
complain that the evidence is insufficient to support same.” Harvey v. State, 611 S.W.2d 108, 111
(Tex. Crim. App. 1981). Even if the record does not imply a finding of true, the sentence was still
proper because Waggoner pleaded true to the enhancements. Issue Three is overruled.
Application of Enhancements
1998 State Theft Conviction.
Waggoner complains in his fourth issue that his sentence was illegal because it was
improperly enhanced with a state jail felony. Waggoner’s indictment included two enhancement
allegations. One alleged that he was convicted of theft in 1998. Waggoner acknowledges that he
stipulated to this allegation, that he was admonished that the range of punishment was twenty-five
to ninety-nine years or life, and that he pleaded true to the enhancement paragraphs. However,
Waggoner argues that this conviction was improperly used to enhance his sentence because the 1998
conviction was for a state jail felony. In support of this argument, Waggoner has provided us with
a certified copy of the indictment and judgment from his 1998 case. Waggoner acknowledges that
this documentation is outside the record but contends that our broad authority to correct illegal
sentences provides authority to consider this new documentation.
An appellate court may always notice and correct an illegal sentence. Mizell v. State, 119
S.W.3d 804, 806 (Tex. Crim. App. 2003). However, our review is limited to the evidence before
the trial court at the time of the trial court’s judgment. Whitehead v. State, 130 S.W.3d 866, 872
(Tex. Crim. App. 2004). The Texas Court of Criminal Appeals has held that a writ of habeas corpus
is the proper venue to challenge an illegal sentence when the record on appeal does not show the
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illegality of the sentence. Ex parte Rich, 194 S.W.3d 508, 512 (Tex. Crim. App. 2006). Because
the additional evidence is outside the appellate record, we cannot consider it.
Even if we considered Waggoner’s supplemental evidence, we would reach the same
conclusion. Even though on its face it provides that it was a second degree felony, Waggoner argues
that the 1998 conviction was a state jail felony and contends that it cannot be used for enhancement
according to TEX . PENAL CODE ANN . § 12.42(e) (Vernon Supp. 2008). Section 12.42(e) only limits
the use of some state jail felony convictions, specifically those punished under TEX . PENAL CODE
ANN . § 12.35(a) (Vernon Supp. 2008). Waggoner’s 1998 theft conviction was punishable under
TEX . PENAL CODE ANN . § 12.42(a)(2) (Vernon Supp. 2008) and, therefore, was not excluded by
Section 12.42(e). The conviction could be used to enhance his punishment to habitual offender
status. The sentence imposed was not illegal, and Waggoner’s fourth issue is overruled.
1989 Forgery Conviction.
Waggoner argues that the 1989 forgery conviction was used to enhance the 1998 theft
conviction and, therefore, that it cannot be used to enhance his possession conviction. The State, in
turn, points us to TEX . PENAL CODE ANN . § 12.46 (Vernon 2003). This statute allows a conviction
to be used for subsequent enhancement purposes and does not limit a conviction’s use to only once.
Waggoner cites three cases that hold that a conviction cannot enhance when it is a necessary element
of the current conviction: Wisdom v. State, 708 S.W.2d 840 (Tex. Crim. App. 1986); Ramirez v.
State, 527 S.W.2d 542 (Tex. Crim. App. 1975); Ballard v. State, 149 S.W.3d 693, 696 (Tex.
App.—Austin 2004, pet. ref’d). The 1989 forgery conviction was not a necessary element of the
theft conviction and, therefore, could be used to enhance all subsequent convictions as a matter of
law. Waggoner’s fifth issue is overruled.
Conclusion
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
June 25, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of Wright, C.J.,
McCall, J., and Strange, J.
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