Long v. State

• Decision Date: 04 April 2013
• Docket Number: NO. 02-12-00090-CR,02-12-00090-CR
• Parties: LYNDON BART LONG, II APPELLANT v. THE STATE OF TEXAS STATE
• Court: Texas Court of Appeals

LYNDON BART LONG, II APPELLANT

v.THE STATE OF TEXAS STATE

NO. 02-12-00090-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

DELIVERED: April 4, 2013

FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

MEMORANDUM OPINION¹

In three issues, appellant Lyndon Bart Long, II appeals his conviction for sexual assault of a child.² We affirm.

Background Facts

In September 2003, a grand jury indicted appellant with committing sexual assault of a child by causing her sexual organ to contact his sexual organ. InAugust 2004, with the assistance of counsel, appellant waived constitutional and statutory rights, judicially confessed to that offense, and pled guilty.³ The trial court deferred its adjudication of appellant's guilt and placed him on community supervision for an eight-year term.⁴

The conditions of appellant's community supervision required him to, among other acts, remain in Tarrant County, attend sex offender treatment, abstain from drinking alcohol, and refrain from viewing sexually explicit material. In December 2008, May 2009, July 2011, August 2011, and September 2011, the trial court supplemented the terms of appellant's community supervision, sometimes requiring his confinement for short periods in jail.⁵

In January 2012, the State filed a petition that requested the trial court to adjudicate appellant's guilt because he had violated several conditions of his community supervision. The State amended its petition in February 2012, alleging in part that appellant had left Tarrant County without permission, had drunk alcohol, and had watched a movie that contained sexually explicit material.Appellant pled true and judicially confessed to leaving Tarrant County and to consuming alcohol.

In the adjudication hearing, after receiving appellant's pleas and evidence from the parties, the trial court heard appellant's closing argument, in which he asked the trial court to allow him to continue on community supervision. At the conclusion of that argument, the trial court found that appellant had violated the terms of his community supervision, revoked it, adjudicated his guilt, and sentenced him to ten years' confinement. Appellant brought this appeal.

The Propriety of the Trial Court's Adjudication Decision

In his first issue, appellant contends that the trial court abused its discretion by adjudicating his guilt and by sentencing him to ten years' confinement because over the course of more than seven years, he mostly complied with the terms of his community supervision, and his violations of some conditions of the community supervision were "minor" and "technical."

At the hearing on the State's petition, witnesses, including appellant's probation supervision officer, testified that appellant had gone to a certain movie theater that the State considered to be a child safety zone and had watched a movie there that contained nudity;⁶ had left Tarrant County once to eat at arestaurant that was barely across the county line and had disclosed this fact to his probation supervision officer; had drunk alcohol multiple times during the community supervision, including when his parents separated; and had worked as a bartender. The evidence also established that appellant's probation supervision officer had considered recommending appellant's placement in an inpatient substance-abuse treatment facility but had eventually determined that she could not place him in the facility because of his score on an assessment, that appellant was a college student and was attending Alcoholics Anonymous at the time of the hearing on the State's adjudication petition, that he had paid all of his probation fees and had complied with many terms of his probation, that he had maintained employment for most of his probation, and that he had actively participated in sex offender treatment, including attending sessions of which the trial court had not required.

When appellant's counsel asked appellant's sex offender treatment provider whether appellant could continue to be a successful probationer, the provider testified,

My opinion is that for seven years [appellant] was, you know, compliant . . . . I don't know that the problem of drinking will be addressed in [prison]. It bothers me . . . that he was not honest [about drinking alcohol]. That's probably more of a concern to me than the fact he drank a beer here and a beer there.

On cross-examination, the provider expressed that she was concerned about appellant's lack of attention to following the rules of his community supervision, including his failure to investigate the content of the movie that he had watched that contained nudity.

As we have explained,

We review an order revoking community supervision under an abuse-of-discretion standard. In a revocation proceeding, the State must prove by a preponderance of the evidence that the defendant is the same individual who is named in the judgment and order of probation, and then must prove that the defendant violated a term of probation as alleged in the motion to revoke.

Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort Worth 2012, no pet.) (quoting Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet. ref'd)). "Proof by a preponderance of the evidence of any one of the alleged violations of the conditions of community supervision is sufficient to support a revocation order." Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref'd).

Appellant concedes that the evidence was generally sufficient to support the trial court's adjudication decision (based in part on his pleas of true to two allegations in the State's amended petition to adjudicate),⁷ but he argues thatunder the facts of this case, the "trial court's act of sentencing [him] to ten years in prison violates the goals of community supervision in Texas, . . . and the trial court abused its discretion by not considering the many alternatives it could have utilized." Appellant contends that the trial court's abuse of discretion in his adjudication and sentencing decisions is illustrated by his assertion that the evidence was insufficient to prove four of the six allegations in the State's amended petition.

Appellant makes a reasoned argument that under the evidence presented in the revocation hearing, a court could have rationally made a decision that is different than the adjudication decision made by the trial court in this case. But as to appellant's contention that the trial court abused its discretion by revoking his community supervision and adjudicating his guilt because his violations of community supervision were "minor," precedent and persuasive authority are not on his side.

In Beckworth v. State, Beckworth had pled guilty to driving while intoxicated and had been placed on probation for twelve months. 551 S.W.2d 414, 415 (Tex. Crim. App. 1977). A trial court revoked the probation only on the ground that Beckworth had consumed alcohol. Id. On appeal, Beckworth contended that the trial court's revocation was an abuse of discretion because, in part, he had only drunk alcohol while under emotional stress and he hadvoluntarily started an alcohol treatment program. Id. at 416. The court of criminal appeals disagreed, explaining,

[Beckworth argues that] a court may refuse to revoke probation even when there has been a technical violation of the probation terms. . . . In our discussion of appellant's first ground of error, we found that the State proved by a preponderance of the evidence that appellant violated the conditions of his probation. There was sufficient evidence for the trial judge to conclude that the appellant had broken the contract he made with the court after appellant's guilt had been determined. Thus, the trial judge did not abuse his discretion by entering the order revoking appellant's probation.

Id. (citation omitted).

More recently, following Beckworth's lead, several courts of appeals have concluded that a trial court does not abuse its discretion in revoking community supervision as long as there is sufficient evidence of at least one violation of it, even if the defendant considers that violation insignificant. For example, in Thomas v. State, Thomas received deferred adjudication and a six-year community supervision term for burglary of a habitation, but he violated the terms of his community supervision by failing to report to his community supervision officer once and by failing to participate in community service at the designated rate of hours per month. No. 14-10-00653-CR, 2011 WL 1709940, at *1 (Tex. App.—Houston [14th Dist.] May 3, 2011, pet. ref'd) (mem. op., not designated for publication), cert. denied, 132 S. Ct. 1858 (2012). The court of appeals affirmed the trial court's revocation of Thomas's community supervision, stating,

The court may revoke community supervision for any violation, including "technical" violations. "Technical" violations typicallyinclude the probationer's failure to report to the probation officer, pay community supervision fees, and perform community service at the specified rate.

The trial court . . . found that appellant had violated the conditions of his community supervision. The trial court's decision is supported by the record evidence, which includes appellant's admissions. Even if appellant's violations were "technical" violations, they were nonetheless sufficient to revoke his community supervision. The resulting seven-year prison sentence is not for appellant's violations of the conditions of his community supervision, but for the burglary offense to which appellant had previously pled guilty.

Id. at *2 (citations omitted); see also Cook v. State, No. 12-09-00201-CR, 2010 WL 5141777, at *3 (Tex. App.—Tyler Dec. 15, 2010, pet. ref'd) (mem. op., not designated for publication) (holding that a defendant's failure to complete a community service requirement was sufficient to revoke his community supervision although he argued that the requirement was a "mere technicality"), cert....