Do Not Publish. TEX. R. APP. P. 47.1

MEMORANDUM OPINION

Opinion by Justice DAVID EVANS.

Jesus Antonio Ponce appeals the revocation of his community supervision probation in two separate family violence cases. In a single issue, appellant argues the trial court abused its discretion in revoking his probation because the probation department's failure to place him on the Mental Health and Mental Retardation ("MHMR") caseload resulted in an impermissible modification to the conditions of his community supervision and violated his right to due process. The State brings one cross-issue requesting that we modify the judgment in trial court cause number F14-33407-J to accurately reflect what occurred in the trial court below. We resolve appellant's single issue against him. We modify the judgment in cause number F14-33407-J as requested by the State and affirm the judgment as reformed. We additionally affirm the trial court's judgment in trial court cause number F12-70299-J.

BACKGROUND

In 2012, appellant was indicted for the offense of continuous violence against the family (the "2012 case"). Appellant pleaded guilty and judicially confessed to the offense. The trial court found the evidence substantiated a finding of guilt, but deferred the finding and sentenced appellant to three years' deferred-adjudication community supervision with a $2,000 fine.

In early 2014, the State moved to revoke appellant's probation and adjudicate guilt in the 2012 case based on multiple alleged violations by appellant of the conditions of his probation. One month later, appellant was indicted for the enhanced offense of assault against a family/household member (the "2014 case). The State and appellant entered into plea agreements in both cases pursuant to which appellant pleaded true to the motion to adjudicate in the 2012 case and pleaded guilty to the charged offense in the 2014 case with a judicial confession. In exchange, the State agreed to recommend a two year extension of appellant's community supervision probation in the 2012 case and a sentence of ten years' confinement, probated for six years, with a $2,000 fine in the 2014 case. The State also agreed to recommend appellant be placed on the "MHMR caseload."

The trial court conducted a consolidated hearing in both cases. During the hearing, the trial court informed appellant that he was not required to follow the plea bargain agreements and, if the agreements were not followed, appellant would be allowed to withdraw his pleas. Appellant acknowledged he understood. Later in the hearing, appellant's counsel questioned him about his understanding of what was going to happen with respect to the conditions of his probations. At the end of this questioning, appellant's counsel stated to appellant

Appellant responded that he understood and that it was what he wanted to do. The trial court then accepted appellant's pleas and, among other things, ordered that appellant submit to a "CATS Evaluation"1 and follow their recommendation. The court told appellant that he was going to be evaluated to determine whether there was an issue with mental retardation or mental illness. Several weeks later, the trial court, signed an order in each case modifying the conditions of appellant's community supervision and placed him on the "Community Control Program (CCP)/High Risk Caseload." Appellant's signature appears on both orders.

On January 11, 2016, the State filed amended motions to revoke appellant's probation or proceed with an adjudication of guilt alleging that appellant had violated many of the conditions of his probation including contacting the victim of the 2014 offense. Appellant entered an open plea of true in each case. At the hearing on the motions, Jack Brown, a court officer for adult community supervision, testified regarding appellant's failure to abide by the conditions of his probation. Brown acknowledged the State had requested that appellant be placed on the MHMR caseload as part of appellant's earlier plea agreement. Brown also acknowledged that appellant was not placed on the MHMR caseload, but was instead placed on the high-risk caseload. At the time of the hearing, appellant was still on the waitlist for the high risk caseload and had not yet started the program.

Appellant's girlfriend and mother testified on appellant's behalf. Both stated that if the trial court continued appellant's probation, they would help him meet the conditions in the future. Appellant also testified and admitted he violated the conditions of his probation, but stated he had a job and was willing to receive training and counselling if his probation was continued. After hearing the evidence, the trial court adjudicated appellant's guilt in the 2012 case and sentenced him to ten years in prison. The trial court further revoked appellant's probation in the 2014 case and sentenced him to ten years in prison to run concurrently with the sentence in the 2012 case. Appellant filed a motion for new trial in the 2012 case arguing that "the verdict was contrary to the law and the evidence." The motion was overruled by operation of law and appellant brought this appeal.

ANALYSIS

In his sole issue, appellant contends the trial court abused its discretion in revoking his probation and the revocation was a violation of his due process rights. Specifically, appellant argues the probation department's failure to place him on the MHMR caseload amounted to an unauthorized modification of the conditions of his community supervision and resulted in his inability to abide by the other conditions ordered by the court.

A review of the record shows that appellant did not object or otherwise bring to the trial court's attention any complaint regarding an alleged modification of the conditions of his community supervision. Nor did appellant make any argument to the trial court that the probation department's failure to place him on the MHMR caseload caused him to violate the other terms of his community supervision. Generally, a party must first complain in the trial court to preserve a complaint for appellate review. See Landers v. State, 402 S.W.3d 252, 254 (Tex. Crim. App. 2013). Even alleged constitutional errors, such as a denial of due process, may be waived by the failure to object at trial. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Because appellant did not raise this issue in the trial court, he has failed to preserve it for review.

In addition, appellant's complaint is based on assertions of fact that are not supported by the record. Appellant contends "[t]he trial court ordered Appellant to be on the MHMR caseload to keep him from making the same mistakes" and "[b]y failing to place Appellant on the MHMR caseload, the probation department modified the conditions of community supervision, of which it had no authority." But the record shows the trial court never ordered appellant be placed on the MHMR caseload. The court informed appellant he would be evaluated to determine what issues needed to be addressed in his community supervision. Several weeks later, the trial court signed orders placing him on the high risk caseload. Appellant's signature also appears on those orders. During closing argument, appellant's counsel stated that appellant was on the waitlist to begin the high risk program. Accordingly, the probation department followed the trial court's orders by assigning appellant to the high risk caseload and the alleged "modification" about which appellant complains did not occur.

Finally, appellant's argument that the probation department's failure to place him on the MHMR caseload caused him to violate the other terms of his community supervision is not well taken. Appellant relies on the case of Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012) to support his argument. In Leonard, the court of criminal appeals concluded the trial court could not revoke the defendant's probation based on a violation caused solely by occurrences beyond his control. Id. at 577, 583 (defendant prevented from successful completion of treatment program by third-party's reliance on inadmissible polygraph examination results). In this case, however, appellant's probation was revoked based on violations that were completely within his control. At the hearing, appellant admitted he had contact with the victim of the 2014 offense. He further testified he failed to report to his community supervision officer because he had transportation problems and then became too scared to go. Appellant presented no evidence that the probation department's failure to place him on the MHMR caseload affected his ability to fulfill the terms of his community supervision. We resolve appellant's sole issue against him.

In a single cross-issue the State requests we modify the judgment in the 2014 case to correctly reflect what occurred in the trial court. The record shows that in cause number F14-33407-J, the trial court adjudicated appellant guilty in 2014 pursuant to a plea bargain agreement and placed him on community supervision. The record further shows that, at the consolidated hearing in 2016, appellant entered an open plea of true to the State's motion to revoke his community supervision. The final judgment signed by the trial court following the 2016 hearing incorrectly indicates that it is a judgment adjudicating guilt and that appellant pleaded true to a motion to adjudicate based on a plea bargain agreement for a ten-year sentence.

The court has the power to modify an incorrect judgment to make the record speak the truth when it has the necessary information before it to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991 pet. ref'd). Because we have the necessary information in the record, we modify the trial court's judgment in cause number F14-33407-J as follows: (1) the title of the judgment is modified to read "Judgment Revoking Community Supervision"; (2) the heading "Plea to Motion to Adjudicate" is modified to read "Plea to Motion to Revoke"; and (3) under the heading "Terms of Plea Bargain," the words "10 YEARS TDCJ; NO FINE" are replaced with "OPEN PLEA." As reformed, we affirm the trial court's judgment in cause number F14-33407-J. We also affirm the trial court's judgment in trial court cause number F12-70299-J.

JUDGMENT

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

JUDGMENT

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

As REFORMED, the judgment is AFFIRMED.