Hacker v. State

• Decision Date: 16 January 2013
• Docket Number: No. PD–0438–12.,PD–0438–12.
• Citation: 389 S.W.3d 860
• Parties: Anthony Wayne HACKER, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

389 S.W.3d 860

Anthony Wayne HACKER, Appellant

v.The STATE of Texas.

No. PD–0438–12.

Court of Criminal Appeals of Texas.

Jan. 16, 2013.

Sarah V. Wood, Harris County Public Defender's Office, Houston, TX, for Appellant.

Bridget Holloway, Assistant District Attorney, Houston, TX, for State.

KELLER, P.J., delivered the opinion of the Court in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, COCHRAN and ALCALÁ, JJ., joined.

We must determine whether the evidence shows that appellant violated a “no contact” condition of probation, when the condition allowed contact by telephone regarding issues of child custody and when appellant and his wife had an arrangement for appellant to babysit their children at his wife's home while she was at work. We conclude that the evidence fails to show that appellant violated the “no contact” condition.

I. BACKGROUND

On December 2, 2010, appellant was placed on deferred-adjudication probation for assaulting his wife. Condition 22, the “no contact” condition of his probation, provided:

You are not to contact the complainant, JENNIFER HACKER, in person, in writing, by telephone, via the internet, a third party or any other means for any reason except as specifically permitted by the Court. YOU MAY SPEAK TO HER VIA TELEPHONE ONLY FOR THE PURPOSE OF CHILD CUSTODY ISSUES.

The State filed a motion to revoke on the basis that appellant violated this condition.

The evidence at trial showed that appellant's orientation paperwork, filled out on December 15th, initially listed his home address as his wife's address, but that address was crossed out and his brother's address was written in its place. Appellant testified that he had initially listed his wife's residence as his own out of “force of habit” and not because he actually lived there.

Appellant's probation officer testified to a conversation that she had with appellant on January 3, 2011. She asked appellant about the crossed-out address,¹ and he responded that his brother had a spare bedroom and that appellant had a change of clothes and a toothbrush there. The probation officer told appellant that she was concerned because he was not supposed to have any contact with his wife other than by telephone. Appellant replied that he had not physically seen his wife but that he talked to her on a daily basis about his children, whom he would pick up from school. He said that he would call his wife to arrange a time to pick up the children and take them to her home. He would then stay with them at the residence until she would call him and tell him that she was on her way home. He would then leave before his wife arrived. Appellant said he spent the night on occasion when his wife worked the night shift. Appellant told the probation officer that he had had this arrangement with his wife since he was placed on probation on December 2nd.

Appellant's children were aged seventeen and fourteen. The probation officer testified that appellant described the fourteen-year-old as mildly retarded. Appellant's wife testified that the fourteen-year-old was a special-needs child with the mental age of an eight- or nine-year-old. Appellant's wife also testified that she worked in the emergency room at a hospital.

The trial judge took judicial notice that a protective order had barred appellant from being at his wife's residence and that the protective order ended on December 19th. Appellant and his wife both testified that appellant first visited his wife's home on December 23rd. Appellant also testified that his understanding of the “no contact” requirement was that he could not be living at his wife's residence.

The probation officer further testified that appellant had told her that he would not have pled guilty if he had known what was in the offense report and that his wife had lied about what had happened. Appellant's wife testified that she did not want the “no contact” condition and that it was difficult on her.

The trial judge adjudicated appellant's guilt, stating on the record that she was making a credibility finding in favor of the probation officer. In support of her conclusion that appellant violated the conditions of probation, the trial judge stated that appellant had “violated the terms by continual phone conversations on everything.” The trial judge also stated her conclusion that appellant was living at his wife's residence because, “You don't live where you have one change of clothes.” The trial judge sentenced appellant to four years in prison.

The court of appeals affirmed, holding that the evidence was sufficient to show that “appellant engaged in prohibited contact with his wife.” ² The court reasoned that the evidence was sufficient to show that appellant was living at his wife's residence because he kept most of his belongings there and initially listed it as his own.³ The court further reasoned that the evidence supported a finding that appellant and his wife were attempting to conceal evidence when they testified at trial that appellant did not visit his wife's residence until December 23rd.⁴ “Having found that appellant was living at his wife's residence,” the court of appeals concluded, “the trial court could have reasonably concluded appellant was in prohibited physical contact with his wife. In other words, because appellant was living in the same residence as his wife, it is reasonable to infer they came into contact with each other.” ⁵

II. ANALYSIS

A. Standard

To convict a defendant of a crime, the State must prove guilt beyond a reasonable doubt,⁶ but to revoke probation (whether it be regular probation or deferred adjudication), the State need prove the violation of a condition of probation only by a preponderance of the evidence.⁷ In the probation-revocation context, “a preponderance of the evidence” means “that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation.” ⁸ Although a much lower standard than “beyond a reasonable doubt,” the preponderance of the evidence standard is a much higher standard than the search-and-seizure standards of “probable cause” and “reasonable suspicion.” ⁹

The State's burden of proof informs the appellate standard of review for legal sufficiency of the evidence.¹⁰ When the burden of proof is “beyond a reasonable doubt,” an appellate court reviews the evidence in the light most favorable to the prosecution and asks whether a rational jury could have made the requisite finding beyond a reasonable doubt.¹¹ For issues governed by the less rigorous burden of proof of “preponderance of the evidence,” the appellate standard of review for legal sufficiency is also less rigorous. For probation-revocation cases, we have described the appellate standard of review as whether the trial court abused its discretion.¹² In addition, we have explained that the trial judge is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. ¹³ In civil cases that are governed by the preponderance-of-the-evidence burden of proof, the legal-sufficiency standard has been described as a review for whether there is “more than a scintilla” of evidence.¹⁴ Evidence does not meet this standard when “the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence” ¹⁵ or when the finder of fact must “guess whether a vital fact exists.” ¹⁶ Furthermore, the Texas Supreme Court has explained, “some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence.” ¹⁷

One practical way in which a legal-sufficiency review varies depending upon the burden of proof in the underlying case is the treatment of extrajudicial confessions. When the burden of proof is “beyond a reasonable doubt,” a defendant's extrajudicial confession does not constitute legally sufficient evidence of guilt absent independent evidence of the corpus delicti.¹⁸ The corpus delicti doctrine requires that evidence independent of a defendant's extrajudicial confession show that the “essential nature” of the charged crime was committed by someone.¹⁹ By contrast, in the probation-revocation context, controlled by the lesser, “preponderance of the evidence” burden of proof, an uncorroborated extrajudicial confession may be sufficient to support revocation.²⁰

But what happens when a defendant makes an extrajudicial statement that does not admit to conduct that violates probation but from which one might possibly infer that such conduct took place? In a concurring opinion, former Presiding Judge Onion suggested that, when the defendant's extrajudicial statement does not admit to all of the allegations necessary to sustain the State's motion to revoke, some sort of corroboration is required.²¹ How to review the evidence when the probationer does not confess to conduct that is a violation of probation is one of the questions implicated in the present case.

B. Did Appellant Confess to Prohibited Contact?

But first, we address the State's contention that appellant did confess to conduct that was a violation of probation.

1. Telephone Conversations

At oral argument, the State claimed that appellant admitted to telephone communications that were in violation of the conditions of probation. Acknowledging that the conditions contained an exception for telephone communications about child custody, the State argued that the wife telling appellant, “I'm coming home; it is time for you to leave,” was not a statement made for the purpose of child custody. So, the State contends, appellant's communications with his wife for the purpose of avoiding physical contact with her while he obtained and relinquished custody over the children were prohibited communications.

We disagree. These conversations related to the timing of the defendant's custody over the children—when custody would begin and when it would end. Moreover, the State's position...