Cook v. The State Of Tex.
| Decision Date | 15 December 2010 |
| Docket Number | NO. 12-09-00201-CR,12-09-00201-CR |
| Parties | CURTIS EDWARD COOK, APPELLANT v. THE STATE OF TEXAS, APPELLEE |
| Court | Texas Court of Appeals |
APPEAL FROM THE 173RD JUDICIAL DISTRICT COURT OF HENDERSON COUNTY, TEXAS
Curtis Edward Cook appeals the adjudication of his guilt and revocation of his community supervision for aggravated sexual assault of a child. He raises four issues on appeal. We affirm.
Appellant was charged by indictment in the January 2008 grand jury term in Henderson County, Texas, with the offense of aggravated sexual assault of a child; specifically, his twelve year old granddaughter. He negotiated a formal plea bargain, waived his right to trial by jury, and judicially confessed to committing the offense. On September, 29, 2008, he was placed on ten years of deferred adjudication community supervision.
On February 9, 2009, the State moved to adjudicate Appellant's guilt, alleging that Appellant had violated the terms and conditions of his community supervision. In its motion, the State alleged five violations of the terms and conditions of Appellant's community supervision. Specifically, counts one through five, respectively, alleged that Appellant failed to (1) register as a sex offender in Kaufman County, Texas, on or about January 20, 2009; (2) register as a sex offender in Henderson County, Texas, on or about January 11, 2009; (3) refrain from living within 1, 000 feet of a location where children commonly gather; (4) obtain prior consent to any change of address; and (5) complete ten hours of community service per month.
Appellant pleaded "not true" to the allegations in the State's motion to adjudicate. After an evidentiary hearing on the State's motion, the trial court found count one to be "not true" and the remaining four counts to be "true." Based on these findings, the trial court proceeded to a determination of guilt and found Appellant guilty of the offense of indecency with a child. After a hearing, the trial court sentenced Appellant to thirty years of imprisonment.
In his first issue, Appellant challenges the legal sufficiency of the evidence to support the revocation of his community supervision.
The granting of community supervision is a contractual privilege afforded a defendant whereby the court agrees to extend clemency by granting community supervision in exchange for the defendant's agreement to abide by certain requirements. Speth v. State, 6 S.W.3d 530, 533-34 (Tex. Crim. App. 1999). A trial court has broad discretion to determine the terms and conditions of community supervision to be imposed. See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (Vernon Supp. 2010) (); Speth, 6 S.W.3d at 533. This discretion includes the authority to order community service. Tex. Code Crim. Proc. Ann. art. 42.12, §§ 11(a)(10), 16 (Vernon Supp. 2010).
"At a hearing on an application to revoke [community supervision], guilt or innocence is not at issue, and the trial court need not determine the defendant's original criminal culpability, only whether the [defendant] broke the contract made with the trial court to receive [community supervision]." Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.-Texarkana 2003, pet. refd).
in community supervision revocation cases, the state has the burden to establish by a preponderance of the evidence that the terms and conditions of community supervision have been violated. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The preponderance of the evidence standard is met when the greater weight of the credible evidence before the trial court supports a reasonable belief that a condition of community supervision has been violated. Rickets v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006).
When the state has met its burden of proof and no procedural obstacle is raised, the decision whether to revoke community supervision is within the discretion of the trial court. Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. 1979). Thus, our review of the trial court's order revoking community supervision is limited to determining whether the trial court abused its discretion. Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). When a trial court finds several violations of community supervision conditions, we affirm the revocation order if the proof of any single allegation is sufficient. See Hart v. State, 264 S.W.3d 364, 367 (Tex. App.-Eastland 2008, pet. refd); Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.-Tyler 2002, no pet.).
Similar to the traditional legal sufficiency analysis, we view the evidence in the light most favorable to the trial court's decision to revoke. Hart, 264 S.W.3d at 367. Moreover, in a revocation proceeding, the trial judge is the sole trier of the facts, the credibility of the witnesses, and the weight to be given to witnesses' testimony. Diaz v. State, 516 S.W.2d 154, 156 (Tex. Crim. App. 1974); Aguilar v. State, 471 S.W.2d 58, 60 (Tex. Crim. App. 1971).
Although he pleaded "not true" to all alleged violations of his community supervision, Appellant admits in his brief that the evidence is "technically sufficient" to support the trial court's conclusion that he violated his community service requirement.
The trial court's community supervision order required Appellant to "satisfactorily complete 1000 hours of Community Service Work at the rate of 10 (ten) hours each month beginning October, 2008...." The record shows that Appellant completed sixteen hours in October, eight in November, zero in December, and eight in January. The State filed the motion to adjudicate guilt and to revoke Appellant's community supervision on February 9, 2009.
Donna Ward, Appellant's community supervision officer, testified that no more than eight hours of credit is granted per day. Moreover, Ward testified that the community supervision department does not permit monthly excess to be carried forward to the following month's obligation, but does allow any additional service to credit toward the total 1, 000 hour obligation.
Appellant argues that enforcement of these "ad hoc" rules would violate the contract construction maxim that ambiguous contractual terms must be interpreted against the drafter. Consequently, Appellant contends that he need not actually perform ten hours each month.
Rather, under contract construction principles, he argues that so long as his total community service hours average at least ten hours per month, regardless of how many hours he completes in any given month, he is in compliance with the community service requirement. We need not address the merits of this argument, however, because Appellant fell short of his community service obligation under either measure.
Appellant failed to complete ten hours in November, December, and January, and consequently, he did not complete ten hours "each month." Alternatively, under his proposed measure, Appellant completed only thirty-two hours, and as of the date the State filed its motion to adjudicate Appellant's guilt, he was required to have completed forty hours to be in compliance. Therefore, under either construction of the community service obligation, the State's proof is sufficient to support the trial court's finding that Appellant fell below the required number of hours. See Welch v. State, No. 06-03-00068-CR, 2003 WL 22682595, at *1 (Tex. App.-Texarkana Nov. 14, 2003, no pet.) (mem. op., not designated for publication) ( evidence sufficient to show defendant failed to complete community service hours by averaging less than ten hours per month at time revocation proceedings filed, though not foreclosing community supervision requirement that ten hours be completed each month).
Appellant nevertheless argues that the violation of the community service requirement was a mere technicality and not sufficiently serious to warrant adjudication of Appellant's guilt and revocation of his community supervision. "Courts may revoke community supervision for a violation of any condition, including violations of any single 'technical' condition." Nurridin v. State, 154 S.W.3d 920, 924 (Tex. App.-Dallas 2005, no pet.). Moreover, "[e]very condition of probation is important, and if not complied with, subjects the defendant to potential revocation." Nicholas v. State, No. 12-01-00102-CR, 2002 WL 253837, at *2 (Tex. App.-Tyler Feb. 20, 2002, no pet.) (mem. op., not designated for publication) ( violation of community service hour requirement sufficient to warrant revocation). This includes the community service requirement. Elizondo v. State, 966 S.W.2d 671, 673 (Tex. App.-San Antonio 1998, no pet.).
Since the State's proof is sufficient to support revocation for at least one of Appellant's community supervision conditions, we need not examine the remaining alleged violations. The trial court did not abuse its discretion in revoking Appellant's community supervision. Appellant's first issue is overruled.
In his second issue, Appellant alleges that the evidence is factually insufficient to support the adjudication of his guilt and revocation of his community supervision. Factual sufficiency review is not available in an appeal from a revocation of community supervision. See Hart, 264 S.W.3d at 367; see also Cochran, 78 S.W.3d at 27 (). Appellant's second issue is overruled.
In his third issue, Appellant argues that "the trial court acted upon inadmissible evidence to sentence [Appellant] to an excessively long sentence,...
To continue reading
Request your trial