Elbert Jason Pierce v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00056-CR
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ELBERT JASON PIERCE, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 20-09-11437-CR
________________________________________________________________________

MEMORANDUM OPINION

Elbert Jason Pierce argues that a misunderstanding of the facts deprived him

of a fair hearing on the State’s motion to adjudicate his guilt and revoke his

community supervision, and thus deprived him of due process and due course of

law. Tex. Const. art. I, § 19. According to Pierce, this misunderstanding caused the

trial court to erroneously believe that he was on community supervision for

assaulting his mother in September 2020, when he was in fact on community

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supervision for assaulting his mother’s domestic partner, a member of Pierce’s

household.1 Tex. Penal Code Ann. § 22.01(b)(2)(A); Tex. Fam. Code Ann. § 71.005.

When the State moved to revoke Pierce’s community supervision, Pierce’s May

2022 assault on his mother was one of the grounds alleged for revocation.

Finding no reversible error, we affirm the trial court’s judgment revoking

Pierce’s community supervision and sentencing him to the statutory maximum: ten

years in the Institutional Division of the Texas Department of Criminal Justice.

I. Background

Pierce was charged with assaulting his mother’s domestic partner in 2020.2

Pierce pleaded “guilty” to that charge and was placed on deferred adjudication

community supervision for four years. In 2022, the state alleged Pierce violated the

terms of his community supervision by drinking alcohol, by failing to submit to

several drug tests, and by assaulting his mother. He pleaded “true” to eight of the

grounds for revocation but “not true” to the two grounds that referenced assaulting

his mother. The State therefore moved to adjudicate Pierce’s guilt and revoke his

community supervision. Four witnesses testified at the revocation hearing; their

testimony is summarized below.

1
During cross-examination, however, Pierce testified that he was placed on
probation for assaulting his mother.
2
Information in the record suggests that at that time, Pierce also assaulted his
mother, but that that charge was dismissed as part of a plea bargain.
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A. Testimony of Pierce’s Mother

Pierce’s mother, “Madeline Knowles,” testified that Pierce was angry and

intoxicated when, early one morning in May 2022, he was “banging” on her bedroom

door and demanding to use her cell phone.3 Approximately two hours later, Pierce

returned, seeking Knowles’ help in taping a sheet over a window because he had

destroyed the blinds. At that time, Pierce was “yelling and screaming and cussing,

cussing, cussing.” Pierce threw Knowles’ cell phone, breaking it, and then pushed

her into a bedroom door.

Knowles recalled a recent conversation that became heated when she told

Pierce that he could not live with her after his release, because she “wouldn’t go

through this anymore[,]” and he responded by calling her a crude name. Knowles

further testified that Pierce repeatedly tried to get her to recant her complaint that he

had pushed her, but she refused to do so.

B. Testimony of Elbert Jason Pierce

In his testimony at the revocation hearing, Pierce expressed his surprise at his

mother’s testimony because, according to Pierce, she had planned to complete an

3
We refer to Pierce’s mother by a pseudonym to conceal her identity. See
Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness
and with respect for the victim’s dignity and privacy throughout the criminal justice
process[.]”). See Smith v. State, No. 09-17-00081-CR, 2018 WL 1321410, at *1 n.1
(Tex. App.—Beaumont Mar. 14, 2018, no pet.) (mem op., not designated for
publication).
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affidavit of non-prosecution. Pierce also denied having pushed her, and further

sought to minimize the events of the night in question. Specifically, he denied

kicking in his mother’s bedroom door, but acknowledged that he did push it with his

foot to open it. Pierce also admitted that he broke his mother’s cell phone when he

threw it against a beam, that he “put a few holes in a couple of walls[,]” and that he

struck the coffee table against the floor.

In addition, Pierce testified that he was placed on community supervision for

assaulting his mother, and that he pleaded “guilty” to that charge only because he

thought he needed to do so to be eligible for deferred adjudication, which he

characterized as baseless, stating that he was “on probation for really no reason.”

Pierce also recounted his mental health history, recalling that many years

earlier, he took medication for depression, but was no longer doing so at the time of

the revocation hearing.

C. Testimony of Susana Ochoa

Deputy Ochoa, of the Montgomery County sheriff’s department, responded

to the call for service at Knowles’ residence in May 2022. When she arrived, she

heard “loud banging” coming from inside the house. Upon entering, Ochoa saw

Knowles sitting on the couch, a coffee table on its side, and holes in the walls.

Knowles appeared frightened.

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Ochoa separated Pierce from Knowles to speak to each of them privately, and

eventually charged Pierce with assaulting his mother.

D. Testimony of Destiny King

King, a court liaison officer, authenticated the documentation reflecting

Pierce’s interactions with the probation department. Those records showed that

Pierce had not only used alcohol in violation of his probation but had failed to submit

to multiple scheduled drug tests. Because of Pierce’s failures to observe the

conditions of his probation, his probation officer recommended that his probation be

revoked.

II. Standard of Review

We review the trial court’s order revoking a defendant’s placement on

community supervision for abuse of discretion. Rickels v. State, 202 S.W.3d 759,

763 (Tex. Crim. App. 2006). The State’s burden of proof in a revocation proceeding

is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 874 (Tex.

Crim. App. 1993) (citation omitted). The State satisfies its burden when the greater

weight of credible evidence before the trial court creates a reasonable belief

demonstrating it is more probable than not that the defendant has violated a condition

of his community supervision. Rickels, 202 S.W.3d at 763-64; Joseph v. State, 3

S.W.3d 627, 640 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

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III. Analysis

Pierce did not make the objection at his revocation hearing that he now makes

on appeal. Therefore, he may not raise his complaint on appeal unless he can show

that no complaint was necessary to preserve error. Tex. R. App. P. 33.1(a)(1)(A).

Although the record reflects that the trial court may have misunderstood the reason

underlying Pierce’s community supervision, no objection to such misunderstanding

was made at the hearing. See Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App.

2003) (negating the right to an error-free trial and explaining “[t]he rules that require

a timely and specific objection, motion, or complaint do not apply to two relatively

small categories of errors: violations of ‘rights which are waivable only’ and denials

of ‘absolute systemic requirements.’”). At trial, not such objection was made. The

Court of Criminal Appeals rejected the defendant’s argument, raised for the first

time on appeal, that this misunderstanding necessitated reversal. Id. at 896. We are

persuaded by the rationale of Aldrich and likewise reject Pierce’s analogous

argument.

We overrule Pierce’s sole appellate argument.

IV. Conclusion

Finding no error, we therefore affirm the trial court’s judgment sentencing

Pierce to ten years in the Institutional Division of the Texas Department of Criminal

Justice.

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AFFIRMED.

JAY WRIGHT
Justice

Submitted on December 8, 2023
Opinion Delivered February 21, 2024
Do Not Publish

Before Golemon, C.J., Horton and Wright, JJ.

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