Lee v. State

• Decision Date: 28 August 1997
• Docket Number: No. 05-95-01398-CR,05-95-01398-CR
• Citation: 952 S.W.2d 894
• Parties: Robert Allen LEE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 894

952 S.W.2d 894

Robert Allen LEE, Appellant, v. The STATE of Texas, Appellee.

No. 05-95-01398-CR.

Court of Appeals of Texas Dallas.

Aug. 28, 1997.

Forrest W. Wagner, Pettigrew & Wagner, Grand Prairie, for Appellant.

April E. Smith, Asst. Dist. Atty., Dallas, for Appellee.

Before the court en banc.

OPINION

LAGARDE, Justice.

Robert Allen Lee appeals from the trial court's judgment revoking his community supervision. In two points of error, appellant contends the trial court abused its discretion in revoking his probation for failing to report to his probation officer and failing to pay a fine, costs, and fees. Concluding that appellant's points of error are without merit, we affirm the trial court's judgment.

On February 15, 1993, appellant was indicted for aggravated sexual contact with a child under fourteen years of age. On the State's motion, the trial court reduced the offense to sexual assault. Appellant waived a jury and pleaded guilty before the trial court. Pursuant to a plea bargain agreement, the trial court sentenced appellant to ten years' confinement, probated for eight years, and a fine of seven hundred fifty dollars. The trial court ordered appellant to comply with certain conditions of probation, which included reporting to his probation officer, paying a fine, paying a monthly probation fee, paying a Crime Stoppers' fee, paying a monthly sex offenders' fee, and having no contact with anyone under the age of eighteen.

On July 27, 1995, the State moved to revoke appellant's probation, contending that appellant met with his probation officer on or about July 7, 1995 and July 21, 1995, but refused to answer the probation officer's questions, and that appellant did not pay any of the fine, costs, or fees. On September 7, 1995, appellant pleaded not true to the allegations in the motion to revoke and an inability to pay the fine, costs, and fees.

During the hearing on the State's motion to revoke, appellant's probation officer, Sandra Potter, testified that when she initially met with appellant in April of 1995, she reviewed the conditions of probation with appellant and appellant acknowledged that he understood these conditions. In June of 1995, appellant reported to Potter that during the summer, he was going door-to-door in residential neighborhoods and "witnessing" as a Jehovah's Witness along with other members of his church. Appellant would not identify the neighborhoods, would not specifically define "witnessing," and would not identify the church members who accompanied him. Potter concluded that through these activities, appellant could come into contact with children in violation of a condition of his probation. Upon receiving the probation officer's report, the trial court conducted a hearing and ordered appellant to stop witnessing door-to-door.

Appellant apparently stopped witnessing door-to-door, but began witnessing by telephone. Potter became concerned that appellant was telephoning children. Potter also noted that appellant had not paid any of the fine, costs, or fees assessed against him. During their meetings on July 7 and July 21, 1995, Potter questioned appellant about these violations. Appellant refused to answer Potter's questions about his religious activities, contending that his witnessing was none of her business. Appellant also refused to answer any of Potter's questions regarding employment or disability, contending that Potter already had this information in her files. When Potter told appellant she did not have any employment information in her files, appellant still refused to answer. Potter advised appellant that refusal to answer was considered a failure to report. Appellant still refused to answer. Appellant's refusal to answer Potter's questions regarding whether he was having contact with children and his failure to pay left Potter unable to inform the trial court whether appellant was complying with the conditions of his probation.

Appellant also testified at the hearing on the State's motion to revoke, stating that he understood the terms and conditions of his probation and stopped witnessing door-to-door in compliance with the trial court's order. Appellant acknowledged that Potter did not forbid witnessing altogether, but instead told appellant that he could continue witnessing if he confined his activities to places without children such as nursing homes. Appellant testified that he did not witness in nursing homes because his church had not yet given him instructions on how to do so.

Appellant admitted he did not pay the fine, costs, or fees. Appellant recalled that when he told Potter he could not pay because he did not have a job, Potter called the Texas Rehabilitation Commission and advised appellant to make an appointment. Appellant complied, but his epilepsy prevented him from operating machinery or driving and the work he sought or the employment suggested to him involved contact with minors. Appellant, therefore, could not find a job and was unable to pay the fine, costs, and fees. Appellant contended he answered all of Potter's questions except those about his religion and those for which Potter already had records.

On cross-examination, the State asked appellant if he knew of any place in Dallas County where he could work without coming into contact with minors. Appellant replied, "I don't know if there is or not, ma'am." Appellant acknowledged, however, that he could do janitorial work. Instead of trying to find a position as a janitor, appellant witnessed two days a week and stayed home doing nothing five days a week.

None of appellant's fellow church members testified at the hearing.

At the conclusion of the hearing, the court entered an order revoking appellant's community supervision and imposing punishment of seven years' confinement.

STANDARD OF REVIEW

Probation may be revoked upon a finding that an appellant has violated the terms of his or her probation. Wilson v. State, 645 S.W.2d 932, 934 (Tex.App.--Dallas 1983, no pet.). Appellate review of a probation revocation proceeding is limited to a determination of whether the trial court abused its discretion. Bennett v. State, 476 S.W.2d 281, 282 (Tex.Crim.App.1972); Wilson, 645 S.W.2d at 934. To determine whether the trial court has abused its discretion, we look to whether the State has met its burden of proof. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App.1984). The State meets its burden when the greater weight of the evidence before the court creates a reasonable belief that the probationer violated a condition of probation. Jenkins v. State, 740 S.W.2d 435, 437 (Tex.Crim.App.1983), disapproved on other grounds by Saxton v. State, 804 S.W.2d 910, 912 n. 3 (Tex.Crim.App.1991). In other words, the State's burden of proof in a probation revocation hearing is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App.1993).

In revocation proceedings, the trial judge is the sole trier of the facts, the credibility of the witnesses, and the weight to be given the testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App. [Panel Op.] 1980); Ross v. State, 523 S.W.2d 402, 403 (Tex.Crim.App.1975). It is the trial court's duty to judge the credibility of the witnesses and to determine whether the allegations in the motion to revoke are true or not. Langford v. State, 578 S.W.2d 737, 739 (Tex.Crim.App.1979). This Court must therefore view the evidence presented at the revocation proceeding in a light most favorable to the trial court's ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981).

FAILURE TO REPORT

In his first point of error, appellant contends that the trial court abused its discretion in revoking his community supervision for failing to report to his probation officer. Appellant argues that the probation conditions merely ordered him to report, the conditions did not contain any language directing him to answer questions, and the undisputed evidence showed that he physically reported as directed.

To "report" means to convey or disseminate information. Lightfoot v. State, 128 Tex.Crim. 281, 284, 80 S.W.2d 984, 985 (1935). As long as the desired information is locked up in one's breast and not disclosed, it is not a report. Id. Furthermore, mere physical presence at a meeting or program to which a probationer is ordered by the trial court will not establish compliance with the trial court's order upon a showing that the appellant would not follow the rules and guidelines of the meeting or program or engaged in disruptive behavior during the meeting or program. See Figgins v. State, 528 S.W.2d 261, 263 (Tex.Crim.App.1975); Ott v. State, 690 S.W.2d 337, 339 (Tex.App.--Eastland 1985, pet. ref'd).

Appellant did physically appear at the meetings with Potter on the dates in question. However, appellant refused to answer Potter's questions about his witnessing, telling Potter that his religious activities were "none of [her] business." Appellant also refused to answer Potter's questions about how he was "going to witness by phone." These questions were designed to determine whether appellant was contacting minors in violation of a condition of his probation. Appellant also refused to answer Potter's questions about whether he was trying to find a job, telling Potter, "I don't have to answer your questions. I refuse." Although appellant testified at the hearing that he attended sessions at the Texas Rehabilitation Center and participated in career assistance counseling in an attempt to find employment, Potter testified that at their meetings, appellant refused to answer her questions about whether he went to the Texas Rehabilitation Commission and to career assessment counseling as ordered. Potter also testified that when she told appellant that she had no reports of his activities with these agencies, appellant still refused to answer her questions regarding whether he was seeking employment....