Dirden v. State

• Court: Texas Court of Appeals
• Writing for the Court: LEANNE JOHNSON Justice
• Decision Date: 07 December 2016
• Docket Number: NO. 09-16-00086-CR,09-16-00086-CR
• Citation: Dirden v. State, NO. 09-16-00086-CR (Tex. App. Dec 07, 2016)
• Parties: LAWRENCE RAY DIRDEN II, Appellant v. THE STATE OF TEXAS, Appellee

LAWRENCE RAY DIRDEN II, Appellant v. THE STATE OF TEXAS, Appellee

NO. 09-16-00086-CR

Court of Appeals Ninth District of Texas at Beaumont

Submitted on October 11, 2016

December 7, 2016

On Appeal from the 9th District Court Montgomery County, Texas

Trial Cause No. 12-01-00324-CR

MEMORANDUM OPINION

In four issues, Lawrence Ray Dirden II ("Lawrence" or "Appellant") challenges the trial court's revocation of his community supervision. We affirm. Lawrence was indicted for Aggregate Theft in an amount in excess of $200,000, a first degree felony.¹ See Tex. Penal Code Ann. §§ 31.03, 31.09 (West 2011 and Supp. 2016). In the amended indictment, the State alleged that Lawrence

. . . unlawfully appropriate[d] property, by acquiring or otherwise exercising control over the property, to wit: money, in the aggregate value of $200,000 or more, from Isaac Martin III, and/or Martin Wood Company, Inc. and/or Stoneham Mill, Inc., the owner, from account number(s) 1003706 and 1047786 at First Bank of Conroe, N.A., with the intent to deprive the owner of the property, and said property was obtained pursuant to one scheme or continuing course of conduct which began on January 28, 2008[,] and continued until on or about December 16, 2008.

On April 28, 2014, the jury returned a guilty verdict against Lawrence as charged in the indictment. Before the sentencing and entry of a judgment, the State and Lawrence reached an agreement wherein Lawrence agreed to "10 years probated over 10 years, [and] $350,000 to be paid within 180 days of [September 17, 2014,] and $125,000 to be paid over the next 10 years." On September 17, 2014, pursuant to the agreement between the State and Dirden, the trial court sentenced Lawrence to ten years' confinement in the TDCJ, to be probated, with a list of conditions of probation and with a requirement as agreed between the parties that Lawrence pay restitution of $350,000 within 180 days of the date of the hearing, and $125,000 to be paid over the next ten years.

Two of the conditions of probation included that Lawrence would:

c. Not use or consume alcohol or controlled substances; [and]

. . . .

q. Pay $390.00 Court costs; $350,000.00 TO BE PAID WITHIN 180 DAYS $125,000.00 TO BE PAID OVER 10 YEAR PERIOD ALL TO BE PAID INSTANTER restitution for the benefit of STONEHAM MILL, INC. P.O. BOX #1828 CLEVELAND, Tx 77328; $0 Court appointed attorney fees; and $0.00 fine, all in one lump sum payment to the Montgomery County District Clerk on the day this Judgment is entered pay in installments, the total sum of the foregoing to the Montgomery County District Clerk, including $2.00 fee for each payment made (pursuant to Article 102.072, T.C.C.P.), as set forth in the Collection Agreement which is incorporated herein and made part of this judgment as if copied verbatim[.]

On July 22, 2015, the State filed a Motion to Revoke Community Supervision alleging Lawrence had violated the terms and conditions of his community supervision, as follows:

I.

Defendant failed to pay $350,000.00 restitution within 180 days from the date Judgment was signed.

The State requested an order of arrest and that the trial court revoke the community supervision and pronounce sentence. After his arrest, Lawrence filed a Motion of Incarcerated Defendant for Prompt Revocation Hearing, wherein he alleged that he was granted community supervision in his Judgment dated September 17, 2014, and then later arrested on November 9, 2015, for an act alleged to be a violation ofthe terms of his community supervision. On December 2, 2015, the trial court released Lawrence on a Personal Recognizance Bond (PR Bond). After being notified that the "Defendant tested positive for alcohol in random urinalysis conducted on January 19, 2016[,]" the trial court then revoked the PR Bond and issued a capias for Lawrence.

The State filed an Amended Motion to Revoke Community Supervision (Amended Motion) dated February 18, 2016, and file stamped by the clerk on February 19, 2016. In the Amended Motion, the State alleged that on September 17, 2014, Lawrence was convicted and placed on community supervision for a period of ten years on terms and conditions as set forth in the Judgment and that he subsequently violated the terms and conditions for his community supervision as follows:

I.

Defendant tested Positive for alcohol in random urinalysis conducted on January 19, 2016.

II.

Defendant failed to pay $350,000.00 in restitution within 180 days from the date of the judgment as ordered by the Court.

On February 22, 2016, the parties agreed to set the revocation hearing for February 25, 2016. On February 25, 2016, the trial court held a revocation hearing, and the State and Lawrence appeared with their respective attorneys. Lawrence andhis trial counsel executed a sworn "Stipulation of Evidence" (Stipulation), which was filed into the clerk's record at 4:30 p.m. on the date of the hearing. The Stipulation, which was signed by Lawrence, his attorney, and the trial court judge, reads in relevant part as follows:

. . . I have read the State's Original Motion to Revoke Community Supervision filed with the District Clerk on or about February 18, 2016 and I hereby agree and confess that all the acts and allegations in Paragraphs I, II thereof are true and correct, and all of said conduct constituted violations of the conditions of my community supervision and occurred during the period in which the conditions of my community supervision were mandatory.

According to the Reporter's Record, the following exchange occurred at the beginning of the revocation hearing:

THE COURT: . . . Okay. I have the State's amended motion to revoke community supervision dated February 19th, 2016. So is there anything more recent than that, Ms. [State's Attorney]?

[State's Attorney]: No, Your Honor.

THE COURT: Okay. Has the defense been given a copy of that?

[State's Attorney]: You have a copy of it, right?

[Defense Attorney]: We received a copy of it yesterday, yes, sir, Your Honor.

THE COURT: Okay. You received a copy yesterday? So are you -- you're saying the State didn't give you a copy earlier or why didn't you have it 10 days?

[Defense Attorney]: No, sir. We just got it yesterday.

THE COURT: Okay.

[Defense Attorney]: We're ready and prepared though, Your Honor.

THE COURT: Okay. Well, you're ready to go. State ready?

[State's Attorney]: Yes, Your Honor.

THE COURT: All right. Call your first witness.

Both attorneys then proceeded to present an opening statement to the trial court, and the State called its first witness, Anthony Gaskill (Gaskill), a drug test administrator. Gaskill testified that he works for Davis Investigation Services, the company that holds a contract with Montgomery County Probation to administer drug testing and that tests everyone who is on bond or probation. During the questioning of Gaskill, the following exchange occurred:

[State's Attorney]: Okay. Do you have any special training to conduct these tests?

[Gaskill]: Just on-si[te] training.

[State's Attorney]: Now, were you asked to conduct a urinalysis specimen or urinalysis test on Lawrence Dirden?

[Gaskill]: Yes, sir.

[State's Attorney]: And do you recall when you were requested to perform that specimen?

[Defense Attorney]: May it please the Court? We're going to object to this testimony whatsoever because this is a new allegation that was joined on February the 19th, an allegation that allegedly occurred on January the 19th. It was filed within 7 days before the date of thehearing; and therefore, it should not be allowed under section 42.12, subparagraph 21.

[State's Attorney]: May I respond, Your Honor?

THE COURT: Sure.

[State's Attorney]: Before the hearing, he brought up the issue that he had not had 10 day's [sic] notice. He said he was willing and ready to go forward.

THE COURT: I agree. Objection is overruled.

[Defense Attorney]: Note our exception, Your Honor?

THE COURT: Noted.

Gaskill testified that Lawrence appeared on the date requested for a urinalysis and that, after Lawrence provided a sample, Gaskill labelled it and sent the sample to Redwood Laboratory in California for testing. The defense made a hearsay objection to the testimony, and argued that Gaskill was testifying from a document not admitted into evidence. The court overruled the objections. Gaskill testified that alcohol testing was performed on the sample Lawrence provided.

John Martin (Martin), a toxicologist with the Redwood Laboratory in California, testified by telephone. Lawrence objected to Mr. Martin's telephonic testimony stating that Lawrence was entitled to prior notice of the State's intent to admit telephonic testimony. The Court overruled Lawrence's objection. Martintestified as to the validity of the laboratory test results on Lawrence's urine sample and that Lawrence's test result demonstrated Lawrence had consumed alcohol.

Lisa Foster (Foster) testified that she is a community supervision officer and that she did a presentence investigation in 2014 before Lawrence was sentenced. Foster explained that she met with Lawrence concerning restitution when she prepared the presentence investigation and also in January of 2016. According to Foster, when she was preparing her presentence investigation, Lawrence "said he would do anything necessary to make it right with the victims of the offense. He said he would sell his assets and do whatever he needed to do to make it right." Foster explained that, at that time, Lawrence owned property, a house, a logging company, and a water business. Foster also testified that, in January of 2016, Lawrence said he was willing to sign over his interest in his house, but that "his wife would have to sign off on selling her half; and she's not willing to do that." Foster further testified that she sent him for alcohol testing when she met with him on January 19, 2016, but that she did not then have reason to believe he was drinking and she was "shocked" that the test results were positive for alcohol. Foster also agreed that Lawrence had...