Smith v. State, No. 2-08-381-CR (Tex. App. 12/17/2009)

• Decision Date: 17 December 2009
• Docket Number: No. 2-08-381-CR.,2-08-381-CR.
• Parties: JAMES PATRICK SMITH, Appellant, v. THE STATE OF TEXAS, State.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

JAMES PATRICK SMITH, Appellant, v. THE STATE OF TEXAS, State.

No. 2-08-381-CR.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: December 17, 2009.

Do Not Publish. Tex.R.App.P. 47.2(b).

Appeal from the 97th District Court of Montague County.

Panel: CAYCE, C.J.; GARDNER and MEIER, JJ.

MEMORANDUM OPINION¹

ANNE GARDNER, Justice.

I. Introduction

Appellant James Patrick Smith appeals his adjudication of guilt for violating conditions of his community supervision. In six points, Appellant argues the trial court abused its discretion by revoking his community supervision and imposing an eighty-year sentence. We will affirm the trial court's judgment.

II. Factual and Procedural Background

In April 2005, a grand jury indicted Appellant of eight counts of aggravated sexual assault and one count of indecency with a child. Appellant pleaded guilty on November 13, 2007, to one count of aggravated sexual assault. The trial court placed Appellant on ten years' deferred adjudication community supervision. The conditions of Appellant's community supervision prohibited him from drinking alcohol.

Appellant attended a sex offender treatment session in late March 2008 with the smell of alcohol on his breath and, at the time, admitted to drinking "a beer or half a beer prior to attending treatment."² During a later review of this violation with his community supervision officer, Jeremy Thompson, Appellant admitted to having "approximately two-and-a-half beers" before attending the sex offender treatment session. In June and July, Appellant made multiple admissions to Thompson that he drank alcohol, including one admission that he "regularly consumed a fifth of whiskey and approximately six or seven six-packs of beer every—in every two-week period. At that time, [Appellant] said it was representative of how much he drank while on probation." On June 12, 2008, Thompson filed a Courtesy Supervision Progress Report requesting the Montague County district attorney to consider pursuing revocation of Appellant's community supervision.

On July 24, 2008, the State filed a motion to proceed with adjudication of guilt and alleged that Appellant violated conditions of his community supervision by: (1) consuming alcohol on or about March 17, 2008, and (2) having contact with a minor child. The trial court held a hearing on the State's motion on October 13, 2008, and Appellant entered pleas of "not true" to both allegations. During the hearing, Thompson testified that a July 23, 2008 conversation with Appellant "implied that [Appellant] was continuing to drink."³

After hearing the evidence, the trial court found that on or about March 17, 2008, Appellant violated a condition of his community supervision by consuming alcohol.⁴ The court revoked Appellant's community supervision and adjudicated Appellant guilty of the felony offense of aggravated sexual assault. On October 14, 2008, the trial court sentenced Appellant to eighty years' imprisonment.⁵

III. Analysis

A. Standard of Review

We review an order revoking community supervision under an abuse of discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.-Fort Worth 2007, pet. ref'd). In a revocation proceeding, the State must prove by a preponderance of the evidence that the defendant violated the terms and conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cherry, 215 S.W.3d at 919. This standard is met when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his community supervision as the State alleged. Allbright v. State, 13 S.W.3d 817, 819 (Tex. App.-Fort Worth 2000, pet. ref'd). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and we review the evidence in the light most favorable to the trial court's ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Cherry, 215 S.W.3d at 919. If the State fails to meet its burden of proof, the trial court abuses its discretion by revoking the community supervision. Cardona, 665 S.W.2d at 493-94. 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. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980).

B. Delay in Reporting Violation Does Not Preclude Revocation

In the first half of Appellant's first point, he contends the trial court abused its discretion by hearing evidence of Appellant's alleged violation of his "no alcohol" community service condition in March 2008 because Thompson did not report Appellant's alleged violation to the court for three months.

A judge may issue a warrant for violation of any of the conditions of the community supervision at any time during the period of community supervision—regardless of the delay in reporting the alleged violation. See Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (Vernon Supp. 2009); Flournoy v. State, 589 S.W.2d 705, 709 (Tex. Crim. App. 1979) (holding that "a subsequent arrest on order of the court rendered within the period of probation is in conformity with [article 42.12, section 21(b)] even though there is a delay in reporting the alleged violation to the court"); Miller v. State, 330 S.W.2d 466, 468 (Tex. Crim. App. 1959) (holding that probation officer's five-month delay in reporting appellant's violation did not preclude its use as a basis for revocation).

Thomas testified that on four different occasions, Appellant admitted to drinking alcohol while on deferred adjudication probation in violation of a condition of his community supervision. With each admission, the amount, frequency, or duration of alcohol consumption increased. Any one of these admissions is sufficient to affirm the trial court's revocation of Appellant's deferred adjudication community supervision at any time during Appellant's community supervision. See Moore, 605 S.W.2d at 926; Sanchez, 603 S.W.2d at 871.

Based on the evidence detailed above, the trial court could have formed a reasonable belief that Appellant violated a term of his community supervision by drinking alcohol. Because the trial court did not abuse its discretion by permitting the State to present evidence of Appellant's violation of a condition of his community supervision, we overrule the first half of Appellant's first point.

In the second half of Appellant's first point, Appellant argues we should reverse the trial court's revocation of his community supervision because he did not violate the Texas Penal Code. However, a trial court may revoke an appellant's community supervision because an appellant violates the Texas Penal Code or a condition of his community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 21-23 (Vernon Supp. 2009); see Moore, 605 S.W.2d at 926; Sanchez, 603 S.W.2d at 871; see also Coffel v. State, 242 S.W.3d 907, 909 (Tex. App.-Texarkana 2007, no pet.) ("On proof that the defendant has violated one of the terms of [community supervision], the trial court may, at a proper revocation hearing, . . . revoke the probationer's community release.").

As previously explained, the trial court could have formed a reasonable belief that Appellant violated a term of his community supervision by drinking alcohol. Thus, the trial court did not abuse its discretion by revoking Appellant's community supervision. We overrule the second half of Appellant's first point.

C. Appellant Received Due Process Protections

In his second point, Appellant contends the trial court abused its discretion by allowing Appellant's admissions during treatment to be used to revoke his community supervision in violation of his due process right under the U.S. Constitution.

A probationer is entitled to certain due process protections in the revocation proceedings. Bradley v. State, 564 S.W.2d 727, 729-30 (Tex. Crim. App. 1978); Moore v. State, 11 S.W.3d 495, 499 (Tex. App.-Houston [14th Dist.] 2000, no pet.). In Gagnon v. Scarpelli, the Supreme Court extended the due process protections to state probation revocation proceedings, recognizing that revocation of probation deprives an individual of a conditional liberty. 411 U.S. 778, 782, 94 S. Ct. 1756, 1759-60 (1973); see Diaz v. State, 172 S.W.3d 668, 671 (Tex. App.-San Antonio 2005, no pet.). Specifically, due process in a probation revocation proceeding entitles the probationer to (1) written notice of the claimed violations of his probation, (2) disclosure of the evidence against him, (3) an opportunity to be heard in person and to present witnesses and documentary evidence, (4) a neutral hearing body, (5) the opportunity to cross-examine adverse witnesses, and (6) a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation.⁶ Black v. Romano, 471 U.S. 606, 611-12, 105 S. Ct. 2254, 2258 (1985).

Appellant does not explain in his brief how the trial court violated his due process protections under Black, nor does he cite to the record as support for his contention. Appellant simply argues that the "[a]pplication of probation standards to deferred adjudication is fundamentally unfair," and that "deferred adjudication should be afforded the full range of right[s] afforded a defendant under the due process clause of the Fourteenth Amendment." Appellant fails to cite any relevant authority, from this jurisdiction or from any other, to support this argument. Therefore, we deem this point inadequately briefed. Tex. R. App. P. 38.1(i); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001). We overrul...