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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Joseph Marshall Gutierrez v. State
Combined Opinion