Casey Don Jones v. State , 2015 Tex. App. LEXIS 2901 ( 2015 )

Opinion filed March 26, 2015
In The
Eleventh Court of Appeals
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No. 11-13-00075-CR
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CASEY DON JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 010649
MEMORANDUM OPINION
This appeal stems from the revocation of Casey Don Jones’s deferred
adjudication community supervision for the aggravated sexual assault of a child.
We affirm.
The grand jury indicted Appellant for continuous sexual abuse of a young
child. See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2014). The case
proceeded to trial, and while the jury was deliberating Appellant’s guilt, Appellant
pleaded guilty to the lesser included offense of aggravated sexual assault of a child.
See id. § 22.021. Under the terms of a plea bargain agreement, the trial court
placed Appellant on community supervision for a term of ten years.
Subsequently, the State filed a motion to adjudicate Appellant’s community
supervision and alleged that Appellant violated multiple terms of his conditions of
community supervision. After a hearing, the trial court found the State’s
allegations to be true. The trial court found Appellant guilty of the offense of
aggravated sexual assault of a child and assessed Appellant’s punishment at
confinement for a term of sixty-five years.
In two issues, Appellant challenges the trial court’s revocation of his
community supervision. Appellant contends in his first issue that due process of
law mandates that proof of a violation of any condition of community supervision
should be beyond a reasonable doubt rather than by a preponderance of the
evidence. Appellant concedes that there was sufficient proof to show that
Appellant consumed alcohol and left the county in violation of the terms of his
community supervision. Appellant argues that there was not sufficient proof of the
other violations alleged by the State and that it is unlikely that the trial court would
have assessed Appellant’s punishment at confinement for a term of sixty-five years
had the court considered only the violations for consuming alcohol and leaving the
county to visit his girlfriend. He states, “That a person can be sentenced to sixty-
five years in the penitentiary for having drunk a few beers and having spent some
time with his girlfriend, proved only by a preponderance of the evidence, should
shock the conscience.”
The Court of Criminal Appeals has considered whether a defendant is
“entitled to have the question of his revocation decided beyond a reasonable
doubt” and has determined that “the standard of proof necessary to revoke
probation should [not] be as stringent as the one necessary to support the initial
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conviction.” Kelly v. State, 483 S.W.2d 467, 469–70 (Tex. Crim. App. 1972). The
Court of Criminal Appeals has held that the State must prove a violation by a
preponderance of the evidence and that proof of any one of the alleged violations is
sufficient to uphold the trial court’s decision to revoke. Cardona v. State, 665
S.W.2d 492, 493 (Tex. Crim. App. 1984) (burden of proof is by preponderance of
the evidence); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.]
1980) (“one sufficient ground for revocation will support the court’s order to
revoke probation”). Because the Court of Criminal Appeals has held otherwise,
we decline to hold that a violation of community supervision must be proven
beyond a reasonable doubt. Furthermore, we note that Appellant’s trial counsel
agreed that the State’s burden of proof was by a preponderance of the evidence.
Appellant’s first issue is overruled.
In his second issue, Appellant argues that the trial court abused its discretion
when it revoked Appellant’s community supervision because certain allegations
were not proven even under the preponderance standard. Appellant asserts that we
should remand this cause to the trial court for a new hearing on punishment so that
the trial court can reassess punishment in light of the fact that only two of the
State’s allegations were proven by a preponderance of the evidence. The State
responds that the trial court probably imposed a sentence of sixty-five years based
primarily on the offense for which it found Appellant guilty—aggravated sexual
assault of Appellant’s son—not the number of times Appellant violated his
community supervision.
We review a trial court’s decision to revoke community supervision under
an abuse of discretion standard. Cardona, 665 S.W.2d at 493. When the trial
court has found that a defendant has violated the terms of his deferred adjudication
community supervision, the trial court must adjudicate guilt and assess punishment
as if the adjudication of guilt had not been deferred. TEX. CODE CRIM. PROC. ANN.
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art. 42.12, § 5(b) (West Supp. 2014). “Having previously deferred sentencing the
defendant, the trial court is therefore free to consider the full range of offense-
appropriate punishment, and is not confined to a prior order, as in [a] case with
traditional probation.” Weed v. State, 891 S.W.2d 22, 25 (Tex. App.—Fort Worth
1995, no pet.). Appellant concedes that two of the alleged violations were proven
by a preponderance of the evidence. As we have stated, we will uphold a trial
court’s decision to revoke if any one of the alleged violations of the conditions of
community supervision is supported by sufficient evidence. Moore, 605 S.W.2d at
926.
The record does not suggest that the trial court would have assessed a lesser
sentence had it only found two allegations to be true. The supervision officer
testified that Appellant admitted that he committed the offense of aggravated
sexual assault of a child. Appellant told his supervision officer that “he had
penetrated his son” and that “he had his son do oral sex on him.” During the
punishment phase, Appellant admitted that it happened once but denied that it
happened several times. He told his son he was sorry. The court informed
Appellant that it was not concerned about rehabilitation or protection and that its
job in this case was to punish Appellant for the crime that he had committed. The
court also informed Appellant that the range of punishment for aggravated sexual
assault of a child was not less than five years and not more than ninety-nine years
or life. Before the court sentenced Appellant, it spoke at length to Appellant about
how “raping your son” was not something that could be called a mistake, about
how Appellant had taken his son’s innocence, and about how Appellant’s son
would have to live with that and work through issues as a result of that for the rest
of his life.
Furthermore, the State met its burden to prove each of the alleged violations
by a preponderance of the evidence. Appellant’s community supervision officer
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testified that Appellant made several admissions to him that showed that Appellant
violated the terms of his community supervision. Appellant admitted that he went
with his girlfriend to pick up her son at school, admitted that he stayed overnight at
his girlfriend’s house on several occasions, admitted to drinking alcohol several
times a month, and admitted to possessing two pornographic magazines. The
supervision officer also testified that Appellant violated the terms of his
community supervision when he failed to tell the supervision officer that he had
been questioned by a deputy about drinking and when he tested positive for
alcohol. Appellant did not testify prior to when the court found the allegations to
be true, nor did the defense offer any evidence to contradict the testimony of the
supervision officer. The trial court did not abuse its discretion when it found each
of the alleged violations to be true. Moreover, we note that Appellant admitted,
during the punishment phase, that several of the State’s allegations were true. He
admitted that he did not obey all of the rules and regulations of the community
supervision department, that he consumed alcohol, that he marked “no” for the
question of whether he had been questioned or arrested by law enforcement since
his last report even though he called law enforcement to his house the night before,
and that he stayed at his girlfriend’s house when her children were not at home.
We hold that the trial court did not abuse its discretion when it revoked
Appellant’s community supervision and assessed Appellant’s punishment at
confinement for a term of sixty-five years. Appellant’s second issue is overruled.
We affirm the judgment of the trial court.
March 26, 2015 JIM R. WRIGHT
Do not publish. See TEX. R. APP. P. 47.2(b). CHIEF JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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