Affirm, Opinion Filed January 31, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-01200-CR
No. 05-11-01201-CR
No. 05-11-01210-CR
RONNIE MONTGOMERY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause Nos. F09-20531-H, F09-20347-H, and F11-21157-H
MEMORANDUM OPINION
Before Justices Moseley, Francis and Lang
Opinion by Justice Francis
Ronnie Montgomery appeals his conviction for assault-family violence and the
revocation of his probation for interfering with an emergency telephone call and an earlier
assault-family violence. He contends the trial court abused its discretion by failing to place him
on probation on the new assault charge and by revoking his probation in the other cases. We
affirm.
In February 2009, appellant pleaded guilty to assaulting his girlfriend, a third-degree
felony, and the trial court accepted his plea and placed him on deferred adjudication for four
years. One of his conditions of probation required that he complete a domestic violence
treatment program. Six months later, the State filed a motion to adjudicate guilt. While the
motion was pending, appellant committed a new offense, interfering with the ability of his
girlfriend to make an emergency telephone call, a state jail felony. In April 2010, appellant
pleaded true to the allegations in the motion to adjudicate guilt and pleaded guilty to the charge
of interfering with an emergency telephone call. In both cases, the trial court placed appellant on
regular probation for four years. The trial court again ordered appellant to complete a Batterer’s
Intervention Program and to have no contact with the victim.
While on probation, appellant was charged again with assaulting his girlfriend. The State
filed motions to revoke his probation. At the hearing in August 2011, appellant entered open
pleas of true to the allegations in the motions to revoke and pleaded guilty to the new assault
charge. Appellant admitted that for the first two years of his probation, he had not attempted to
comply with his conditions. However, he said he spent twenty-five days in jail the previous
December and, since that time, had been doing “everything he was supposed to do.” He testified
that he moved from Denton to Dallas in May to alleviate transportation problems that had
affected his ability to comply with his probation and had found a job. He urged the trial court to
continue him on probation. The trial court asked him if he had completed the Batterer’s
Intervention Program, and appellant said he had not started the program because he was arrested
in late June.
At the conclusion of the evidence, the trial judge noted that appellant had been ordered to
complete the Batterer’s Intervention Program in February 2009 and given “plenty of
opportunity” to comply. The trial judge further stated that had appellant completed the program
as ordered, the new offense may not have occurred. He sentenced appellant to three years in
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prison on each assault charge and one year in state jail on the interference charge and ordered the
sentences to run concurrently.
In his first issue, appellant contends the trial court abused its discretion in revoking
probation in the first assault conviction (appeal no. 05-11-01201-CR) because the motion to
revoke is not in the clerk’s record and cannot be found. After briefs were filed in this case, the
Dallas County District Clerk filed a supplemental record containing the motion to revoke. We
therefore conclude this issue is moot.
In his second issue, appellant contends the trial court abused its discretion in revoking his
probation in the assault and interfering with an emergency telephone call cases. Within this
issue, appellant does not challenge the findings that he violated his probation. Rather, he argues
that because he had been doing better in the last six months, the trial court should have given him
“another chance to comply with the terms and conditions of his probation.”
We review a trial court’s decision to revoke probation for an abuse of discretion. Garrett
v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). When the finding of at least
one violation of probation is supported by the evidence and procedural problems are not raised,
the discretion of the trial court to revoke probation is substantially absolute. Flournoy v. State,
589 S.W.2d 705, 708 (Tex. Crim. App. [Panel Op.] 1979).
Here, appellant pleaded true to the allegations contained in both motions to revoke
probation, judicially confessed to the allegations, pleaded guilty to a new assault charge, and
admitted he had contact with the victim in violation of his probation. Ample evidence supports
the trial court’s decision to revoke appellant’s probation, and appellant has not raised any
procedural problems. We therefore will not disturb the trial court’s decision to revoke
appellant’s probation rather than continue, modify, or extend it. We overrule the second issue.
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In his third issue, appellant contends the trial court abused its discretion by denying him
probation in the second assault charge, appeal no. 05-11-01210-CR. He relies on the same facts
as he did in the previous issue.
A defendant has an absolute and unwaiveable right to be sentenced within the proper
range of punishment established by the legislature. Speth v. State, 6 S.W.3d 530, 532-33 (Tex.
Crim. App. 1999). The granting of community supervision is a privilege, not a right. Id. In a
non-jury trial, the decision whether to grant probation is for the trial court, in its sole discretion,
to decide. Burns v. State, 561 S.W.2d 516 (Tex. Crim. App. [Panel Op.] 1978).
Here, appellant was sentenced within the range of punishment set out in the
corresponding provisions of the Texas Penal Code. See TEX. PENAL CODE ANN. §§ 12.34 (range
of punishment for third-degree felony is imprisonment for two to ten years and up to a $10,000
fine); 12.35 (range of punishment for state jail felony is 180 days to two years in state jail and up
to a $10,000 fine). Appellant’s third issue is without merit.
We affirm the trial court’s judgments.
/s/__________________________
MOLLY FRANCIS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
111200F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
Ronnie Montgomery, Appellant On Appeal from the Criminal District Court
No. 1, Dallas County, Texas
No. 05-11-01200-CR V. Trial Court Cause No. F09-20531-H.
Opinion delivered by Justice Francis,
The State of Texas, Appellee Justices Moseley and Lang participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 31st day of January, 2013.
/s/
MOLLY FRANCIS
JUSTICE
5
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
Ronnie Montgomery, Appellant On Appeal from the Criminal District Court
No. 1, Dallas County, Texas
No. 05-11-01201-CR V. Trial Court Cause No. F09-20347-H.
Opinion delivered by Justice Francis,
The State of Texas, Appellee Justices Moseley and Lang participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 31st day of January, 2013.
/s/
MOLLY FRANCIS
JUSTICE
6
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
Ronnie Montgomery, Appellant On Appeal from the Criminal District Court
No. 1, Dallas County, Texas
No. 05-11-01210-CR V. Trial Court Cause No. F11-21157-H.
Opinion delivered by Justice Francis,
The State of Texas, Appellee Justices Moseley and Lang participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 31st day of January, 2013.
/s/
MOLLY FRANCIS
JUSTICE
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Montgomery, Ronnie v. State
Combined Opinion