Victoria Norton v. State
434 S.W.3d 767
Tex. App.2014Background
- Norton pleaded guilty to theft (state-jail felony); court deferred adjudication and placed her on 5 years deferred-adjudication community supervision in 2007.
- In 2010 the State moved to adjudicate; the court adjudicated guilt, sentenced her to 2 years in state jail, suspended sentence, and reinstated 5 years community supervision.
- In 2013 the State moved to revoke supervision alleging five violations (failure to report, failure to maintain employment, unpaid fees/fines, incomplete community service, failure to attend counseling); Norton pleaded “true” to all five.
- Norton explained inability to work due to depression and recent hysterectomy and had since paid $60 and completed 2.5 hours of community service.
- The trial court revoked supervision and sentenced Norton to two years’ confinement in the State Jail Division.
- Norton appealed, raising (inter alia) claims that the court denied a common-law right of allocution, improperly relied on old violations, lacked authority to impose community service while ordering confinement in a substance-abuse facility, and that the revocation judgment lacks her thumbprint.
Issues
| Issue | Plaintiff's Argument (Norton) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Trial court denied common-law right of allocution | Norton contends she was denied an opportunity to make a statement in mitigation before sentencing | State argues Norton did not preserve error in the trial court | Error not preserved; issue overruled |
| Reliance on earlier violations to revoke supervision | Norton contends revocation relied in part on violations adjudicated in 2010, violating due process | State contends issue not preserved; revocation based on post-2010 violations | Not preserved; issue overruled |
| Revocation based on failure to complete community service when court had ordered confinement in a Facility | Norton argues court lacked authority to impose community service as a condition when also ordering confinement at a substance-abuse facility | State notes Norton pleaded "true" to the allegation and failed to object to the condition in the trial court, thereby accepting the condition as part of the supervision contract | Court rejects Norton’s argument; revocation was within discretion because the plea of "true" to a sufficient ground supports revocation |
| Omission of defendant’s thumbprint from revocation judgment | Norton requests correction to include her right thumbprint as required by art. 42.01 | State contends omission is harmless error | Sustained under Tenth Court precedent; trial court ordered to modify judgment to include thumbprint; judgment affirmed subject to modification |
Key Cases Cited
- McClintick v. State, 508 S.W.2d 616 (Tex. Crim. App. 1974) (preservation requirement for allocution complaint)
- Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009) (exacting standard for preserving complaints; party responsibility)
- Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999) (community supervision is a contractual privilege; conditions accepted if not objected to)
- Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) (one sufficient ground supports revocation)
- Jones v. State, 571 S.W.2d 191 (Tex. Crim. App. 1978) (longstanding rule that a single sufficient ground supports revocation)
- Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. 1982) (preservation requirement for attacking reliance on prior findings)