Tillison, Casey Lee ( 2015 )

NO. PD-0853-15 S53-/S
IN THE
ORIGINAL COURT OF CRIMINAL APPEALS
OF TEXAS
COURT O^CfJKiMAUPiTALS
CASEY TILLISON, QQT Q5 2015
Appellant/Petitioner
vs. Abs! Acosfea, Clerk
THE STATE OF TEXAS,
Appellee/Respondent
APPELLANT'S PRO SE PETITION FOR DISCRETIONARY REVIEW
FILED IN
In Appeal No. 10-13-00403-CR COURT OF CRIMINAL APPEALS
wLMrrtALb
from the
OCTQ6 2C;5
court of Appeals Abel Acosta, Clerk
for the Tenth Judicial District
Waco/ Texas
Casey Tillison
TDCJ #01973717
WRJHoU
LIST OF PARTIES
APPELLANT
Casey Lee Tillison,Pro Se
APPELLEE
The State of Texas
DEFENSE COUNSEL AT TRIAL
Original Plea and Adjudication
Julissa Martinez
Attorney at Law
107 Kaufman St.
Waxahachie, Texas 75165
STATE'S ATTORNEYS AT TRIAL
On the Original Plea: Mr. Patrick Wilson
On the Adjudication: Amy L. Lockhart
Ellis County District Attorney's Office
109 South Jackson Street
Waxahachie/ Texas 75165
APPELLANT'S ATTORNEY AT 10th COURT OF APPEALS
Juanita Bravo Edgecomb
Attorney at Law
306 Sixth Street
Waxahachie, Texas 75165
STATE'S ATTORNEY ON APPEAL
Patrick Wilson (or his designated representative)
Ellis County District Attorney's Office
109 South Jackson Street
Waxahachie, Texas 75165
STATE'S PROSECUTING ATTORNEY
P.O. Box 12405,Capital Station
Austin, Texas 78711
II
TABLE OF CONTENTS
Pg.
IDENTITY OF PARTIES H •
INDEX OF AUTHORITIES IV.
STATEMENT REGARDING ORAL ARGUMENT .*..'.' 1.
STATEMENT OF THE CASE i."' 2.
STAEMENT OF PROCEDURAL HISTORY 3.
GROUNDS FOR REVIEW 4.
GROUND FOR REVIEW NUMBER ONE:
Whether Texas Code of Criminal Procedure Article 42.12§5 is
unconstitutional because it undermines the Fundamental Rights
of the accused by subjecting the accused to unconscionable terms
of probation which are subject to arbitrary enforcement by the
trial court without legitimate adversarial testing.
GROUND FOR REVIEW NUMBER TWO:
Whether Texas Code of Criminal Procedure Article 37.07 §3(a)
"breaches" a plea agreement by introducing evidence that was
not considered in the original plea deal and therefore renders
the statute unconstitutional.
ARGUMENT NUMBER ONE 5.
ARGUMENT NUMBER TWO 12.
PRAYER FOR RELIEF 15
CERTIFICATE OF SERVICE 16.
APPENDIX "A"[COA Opinion] 17.
Ill
INDEX OF AUTHORITIES
Pg.
Barnier v. Connelly, 6 S.Ct.357, 113 U.S.27, 28 L.Ed.2d
(1985) 7
Bitterman v. State,180 S.W.3d 139,141
(Tex.Crim.App.2005) ,"' 12
Brink v. State,78 S.W.3d 478,483
(Tex.App.-Houston [14th Dist.] 2001) II 9
Dinnery v. State,592 S.W.2d 343,353
(Tex. Crim.App. 1980) 8
Evitts v. Lucy,469 U.S.387,369-399,105 S.Ct- 830,835-36,
83 L. Ed. 2d 821 (1986) 14
Garmen v. Meyers, 183 Okl.141, 80 P.2d 624,626. . :: 14
Grayned v. City of Rockford, 408 U.S.104, 92 S-Ct.2294,
33 L. Ed. 2d 222m228 (1978) 11
Johnson v. State, 673 S.W-2d 290,294
(Tex. Crim.App. 198 4) L'. ... 9
Kolendar v. Lawson,461 U.S.352,357-58
(1983) 11
Lowry v. State,692 S.W.2d 86,87
(Tex.Crim.App.198 5) 9
Mabry v. Johnson,467 U.S.504,510, 104 S.Ct.2543,
81 L. Ed. 2d 437 (1984) 12
Robles v. State,577 S.W.2d 699 9
Santobello v. New York,404 U.S.257,262, 92 S.Ct.495,
30 L. Ed. 2d 427 (1971) 12
Smith v. Goguer, 415 U.S.566 (1974) 11
Taylor v. State,131 S.W.3d 497
(Tex.Crim.App.2004) 5
2300 Inc. v. City of Ar1ington,888 S.W.2d 123
(Tex.App.[2nd Dist.] 1994) 6
STATUTES
Tex.C.Crim.Proc. Art .1.15 9
Tex.C.Crim.Proc.Art .1.14(a) 9
Tex.C.Crim.Proc.Art.37.07§3(a) 4
Tex.C.Crim.Proc.Art.42.12§5 H 4
IV.
CONSTITUTIONS
TEXAS CONSTITUTION: 9"
Art.I §3 6
Art. I §10 7
Art. I §19 7
UNITED STATES CONSTITUTION:
Amend. 5 7
Amend .6 7
Amend .14 6
REFERENCE
Blacks Law Dictionary - 14
V.
NO. PD-0853-15
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
CASEY TILLISON,
Appellant/Petitioner
VS.
THE STATE OF TEXAS/
Appellee/Respondent
APPELLANT'S PRO SE PETITION FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
Appellant^Petitioner respectfully submits this Petition for
Discretionary Review and moves that this Honorable Court grant
review of this cause and offers the following support thereof;
STATEMENT REGARDING ORAL ARGUMENT
The Appellant/Petitioner requests oral argument in this case
because such argument may assist the Court in applying the facts
to the issues raised. It is suggested that oral argument may
help simplify the facts and clarify the issues.
1.
• STATEMENT OF THE CASE
The indictment alleged that Appellant committed the offense of
aggravated sexual assault of a child on or about October 3,2009 by
causing the penetration of complainant's sexual organ with his
finger when she was younger than 14 years of age. On April 9,2012,
pursuant to a plea bargain agreement with the State, Appellant pled
guilty, the adjudication of guilt was deferred, and Appellant was
placed on community supervision for a period of 10 years.
On June 6,2014, the State filed a Motion to Proceed with an
Adjudication of Guilt alleging that Appellant violated conditions
of probation: Failing to pay probation fees, court costs and fines
self-reporting contact with minors, failed to participate in sex
offender counseling until successfully discharged, failed to submit
to polygraph testing, and having access to internet without monit
oring .
Appellant pled not true to the allegations in the motion to
adjudicate. After hearing the evidence the trial court held that
the evidence was insufficient to find that Appellant had violated
three of the six alleged in the motion. The motion was granted on
the basis of a finding that Appellant had violated the other three.
The trial court assessed punishment at 65 years confinement in the
Texas Department of Criminal Justice. Appellant's attorney did not
file a motion for new trial. Notice of Appeal was timely filed.
Appellate Cdurt Affirmed the trial court's judgement. No Motion
for rehearing was filed.
' STATEMENT OF PROCEDURAL HISTORY
In Cause No. 36,116 the Appellant/Petitioner was charged with
the offense of Probation Violation -- Aggravated Sexual Assault
of a Child. The Appellant/Petitioner was convicted of such offense
pursuant to a motion to proceed with adjudication on December 4,
2014 and appealed the conviction. On July 2,2015 the Waco Court
of Appeals affirmed the conviction. No motion for rehearing was
filed. On Q\ -^ 3 fl ,2015 this Petition for Discretionary
Review was timely forwarded to the Court of Criminal Appeals .:
pursuant to Rule 9.2(b), Texas Rules of Appellate Procedure.
3,
GROUNDS FOR REVIEW
Ground One
Whether Texas Code of Criminal Procedure Article 42.12 § 5
is unconstitutional because it undermines the Fundamental Rights
of the accused by subjecting the accused to unconscionable terms
of probation which are subject to arbitrary enforcement by the
trial court without legitimate adversarial judicial testing.
Ground Two
Whether Texas Code of Criminal Procedure Article 37.07 § 3(a)
"breaches" a plea agreement by introducing evidence that was not
considered in the original plea deal and therefore renders 37.07
unconstitutional.
GROUND ONE
Whether Tex.Code Crim.Proc.Art 42.12 §5(a)(b) undermines the
Fundamental Constitutional Rights of the accused by reducing those
Rights to arbitrary and unconscionable terms and condioti-ons?
Deferred Adjudication
Deferred adjudication is one of the many options available to
trial courts in criminal cases. When applicable, the judge may
"defer further proceedings without entering an adjudication of
guilt, and place the defendant on community supervision." The
judge "may impose a fine applicable to the offense." If the
defendant violates a condition of community supervision, the court
may proceed to adjudicate guilt and assess punishment.
We have noted that "the true objective" of deferred adjudication
"is to divert the accused from the gauntlet run of the criminal
justice system" and allow the judge to "enter into a clearly
understood pact with the accused that will induce and persuade
hime to follow the diversionary road." During that time, there
is no finding of guilt (68 S.W.3d 633), and no final conviction
(36 S.W.3d 871). Instead the judge makes a finding that the
evidence substantiates the defendant's guilt, and then defers
the adjudication. The case is "temporarily stilled and the
accused...[is] permitted the opportunity to demonstrate his
capacity for prescribed good behavior during a specified period."
If the defendant succeeds, the case, for most purposes, "disappears."
If he fails, the case continues on as if it had never been interr
upted, see Taylor v. State,131 S.W.3d 497 (Tex.Crim.App.2004).
5.
Analysis
There is an undeniable stigma attached when this statutory
provision is applied to "sexual offenses." The inherently pred-
judicial nature of sexual offenses, demands that the accused
recieve the full benefit of Constitutional protections and
provisions to prevent societal support of government oppression
"for the greater good." Arbitrary and Unconscionable statutes
may seek to address the evils that plague society. But these
tactics have historically proven detremental and lead to appressive
government tactics which undermine the "adversarial" system which
holds governmental power in check.
When this statute is analyzed in it's totality. The cumulative
affect of the plea, deferred adjudication, community supervision
terms and conditions, adjudication proceedings and sentencing
practices reveal a systematic abridgment of the Fundamental Rights
Equal Rights
(Tex.Const.Art.I §3 & U.S.Const.Amend.14)
"If a statutory scheme infringes upon the fundamental rights or
interests or burdens inherently suspect class, scheme is subject
to strict scrutiny, and statutory classification must promote
compelling state interest in order to be valid under equal prote
ction clause; however, if statutory scheme does not involve
fundamental right or suspect class, appropriate standard of review
is whether classification is reasonable, not arbitrary, and bears
reasonable relationship to legitimate state objective. 2300 Inc.
v. City of Arlington, 888 S.W.2d 123 (Tex.App.[2nd Dist.] 1994).
Justice Field has defined the principle well in the United
States Supreme Court case of Barnier v. Connolly/ 6 S.Ct.357,
113 U.S.27, 28 L.Ed.923 (1985). He declared: "that equal protection
and security should be given to all under like circumstances in
the enjoyment of their personal and civil rights; that all persons
should be equally entitled to pursue their happiness and aquire
and enjoy property; that they should have like access to courts
of the country for the protection of their persons and property,
the prevention and redress of wrongs, and the enforcement of
contracts; that no impediment should be interposed to the pursuits
by others under like circumstances; that no greater burden should
be laid upon one than are laid upon others in the same calling
and conditions, or higher punishment should be imposed upon one
than such as prescribed to all for like offenses."
As shown in Petitioner's case. The plea deprived him of Due
Process and subjected him to a "higher standard" of terms and
conditions of probation than those applied to other "felony"
cases. The class distinctions applied to equal protection of
law is "a person accused of a felony offense." It defies the
principle of equal protection to make classification distinctions
based on "elements" of an offense.
Fundamental rights and equal protection apply to persons "in
all criminal prosecutions." see Tex.Const.Art.I § 10; "Citizens"
see Tex.Const-Art.I § 19; "person" see U.S.Const.Amend.5; "All
criminal prosecutions" see U•S.Const.Amend. 6 ; "persons and
citizens" see U.S.Const.Amend.14.
The Constitutions' of Texas and the United States do not reduce
rights and privalages based on the nature of a specific type of
offense. To do so violates Equal Protection and creates undue
prejudice for persons accused of inherently prejudicial offenses.
The Penal Code establishes the framework to make distinctions
between crimes. It is Arbitrary to create classes and impose
greater burdens on a person accused of a "sexual offense" than
on a person accused of a "non-sexual offense." Since the proper
classification is "felony offense," which is divided by"penalty
ranges."
Self Incrimination
(Tex.Const.Art.I § 10 & U.S.Const. Amend.5)
The Texas and U.S.Constitutions guarantee protection from the
government compelling a person to give evidence against himself.
"It is well settled that a judicial confession, standing alone
is sufficient to sustain a conviction upon a guilty plea." see
Dinnery v. State,592 S-W.2d 343,353 (Tex.Crim.App-1980).
When the state uses the prosepect of "release" by entering a
plea to recieve deferred adjudication probation and then uses
that plea as evidence against the accused to establish guilt
in the adjudication proceedings, the state has ultimately used
probation to "compel" the accused to give evidence against himself.
In petitioner's case, the plea to recieve deferred adjudication
probation presented an opportunity for immediate release from jail.
Petitioner had been in jail unable to make bond for 10 months prior
to the offer of probation. The prospect of immediate release was
a compelling force used to get petitioner to give evidence against
himself. This is a common tactic used by prosecutors.
Burden of Proof
(Tex.Const.Art.I §§ 10,19 & U.S.Const.Amend.14)
The U.S.Supreme Court has held that it is a violation of the
Due Process Clause of the 14th Amendment to shift the burden of
proof in a criminal case to the defendant, see Lowry v. State,
692 S.W.2d 86,87 (Tex.Crim.App.1985). It is incumbant on the
State to prove every element of the offense beyond a reasonable
doubt. This is true whether the state is relying on circumstantial
or direct evidence- see Johnson v. State, 673 S-W.2d 290,294 (Tex.
Crim.App.1984) .
Under Tex.Code Crim.Proc.Art.1.14(a) a defendant may waive any
rights secured him by law- A heavy burden rests upon prosecution
to demonstrate an intelligent, voluntary and knowing waiver of
constitutional rights, see Robles v. State,577 S.W-2d 699. The
law in Texas is clear that a guilty plea in a bench trial is not
conclusive. Despite the defendant's plea, it is still necessary
for the state to introduce evidence into the record showing the
guilt of the accused. Tex.CodeCrim.Proc.Art.1.15 (Vernon's Supp.
2001). Brink v. State, 78 S.W-3d 478,483 (Tex.App•-Houston [14th
Dist.] 2001 pet.ref'd). The issue in a criminal trial is whether
the prosecution can, by legally admissible evidence, prove its
allegations of criminal conduct beyond a reasonable doubt. Brink,
78 S.W.3d at 484.
Thus two fundamental questions are presented in every criminal
trial: (1) does the prosecution have sufficient evidence of guilt
to convicne a trier of fact beyond a reasonable doubt; and (2)
is the evidence legally admissible?
9.
Petitioner asserts that when the state uses Tex.Code Crim.Proc.
Art.42.12 §5 to relieve itself of it's heavy burden of proof and
further shift that burden of proof to the defendant, "adversarial
testing" has been undermined. The state is using the plea bargain
system under Art.42.12 § 5 to avoid the burden of proof and shift
the burden of proof while retaining the full scope of statutory
power to obtain a conviction through a simpel motion to proceed
with adjudication based on "hyper-critical" and unconscionable
terms and conditions of probation.
Void for Vagueness
(Tex.Const.Art.I § 19 & U.S.Const.Amend.5,14)
Tex.Code Crim.Proc.Art.42.12 §5(a) is void for vagueness regarding
the defendant be placed on "community supervision." The terms
and conditions of community supervision are subject to third party
practices and procedures not expressly governed by the trial court.
It is a basic principle of due process that an enactment is
void ofr vagueness if it's prohibitions are not clearly defined.
Vague laws offend important values.
First: Bevause we believe a man is free to steer between lawful
and unlawful conduct, we insist that laws give the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited. Vague laws may trap the innocent by not providing fair
warning on what is considered lawfully expected.
1 - Second: If arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards. A vague law
impermissibly delegates basic policy matters to policemen, judges
and other officials for resolution on an ad hoc and subjective basis.
Third: Related where a vague staute "abuts upon sensitive areas
10.
of basic first amendment freedoms," and operates to inhibit those
freedoms, see Grayned v. City of Rockford,408 U.S.104, 92 S.Ct-2294,
33 L.Ed.2d 222,228 (1978).
The Petitioner challenges the constitutionality of Art.42.12 §5
of the Code of Criminal Procedure on an important aspect of the
vagueness doctrine... "the requirement that a legislature establish
guidelines to govern lawenforcement."
Where legislature fails to provide minimal guidelines, a
criminal statute may permit "standardless sweep allowing the
pursuit of personal predilections." see Kolendar v. Lawson,461
U.S. 352,357-358 (1983)(quoting Smith v. Goguen,415 U.S.566 (1974).
A law must be sufficiently definite that its terms and provisions
may be known and understood and applied otherwise it is void and
unenforceable.
If the court is unable to know what is prohibited from the
face of the statute, then the law is void for vagueness. Here the
judiciary has to construe third party terms and apply the findings
to vague and even ambiguous statutory terms.
The failure of legislature to declare exactly what matters in
the "requirements" of community supervision, appears to have
attempted to shift the policy issues to the judiciary.
It is unreasonable to believe that the Court and the defendant
were "aware" of the specific requirements that are placed on the
defendant when deferred adjudication probation is implemented.
The statute is void for vagueness under Article I § 19 of the
Tex.Const, and the 5th and 14th Amends, to the U.S.Const-
11.
GROUND TWO
Whether the application of Tex'.'Code Crim. Proc. Art. 37 .07§3 in
deferred adjudication Art.42.12§5(b) proceedings "breaches" the
terms of the plea agreement by introducing evidence beyond what
was "admitted" by defendant in original proceedings in a plea
to recieve deferred adjudication probation.
Once a judge accepts the terms of an agreed plea bargain in
open court, a defendant has an absolute right to have the State
honor the terms it agreed to. see Bitterman v. State,180 S.W.3d
139,141 (Tex.Crim.App.2005). If the State fails to honor a promise
that is part of an executed plea agreement, the defendant is put
in a position where he pled guilty based on a false premise and
therefore, his plea is considered involuntary. Id. at 141-42.
The State must fulfill any agreements it makes to induce a defend
ants plea, see Santobello v. New York, 404 U.S.257,262, 92 S. Ct.
495, 30 L. Ed. 2d 427 (1971). The State violates due process if
it breaches an executed plea bargain agreement, see Mabry v.
Johnson, 467 U;JS.504, 510, 104 S.Ct.2543, 81 L. Ed. 2d 437 (1984).
Impaired Obligation
"to weaken [the contract], or lessen its value, or make it worse
in any respect or in any degrees... Any law which changes the
intention and legal effect of the orgiginal parties, giving to one
a greater and to the other a less interest or benefit in contract
impairs its obligation. 115 A. 484,486- "The extent of the change
is immaterial- Any deviation from its terms by hastening or post
poning the time of perofrmance which it prescribes, or imposes
conditions not included in the contract, or dispensing with the
12 .
performance of those' that are included. State statutes which do
so are prohibited by Art. 1,§10 of the U'-'S.Const.
Petitioner would show that the "evidence" established by the
plea of guilty in the original proceedings became part of the
"terms' of the plea agreement by virtue of an "expectation" by
the Petitioner that if his probation was revoked and he faced
adjudication it would be based on the evidence and facts from
the original proceedings. The state was allowed by statute to
present extraneous offenses during the sentencing portion of the
adjudication proceedings which caused egregious harm by influencing
a sentence that rs-disproportionate with a finding in the original
proceedings that petitioner was guilty and "probation" was a viable
option based on those findings. Then in the adjudication proceedings
the court sentenced the petitioner to 65 years aggravated for
violating terms of probation being the only added element.
The introduction of evidence under Art.37''07 §3 is unconstitut
ional when applied to Art i.'42.12§5 proceedings.
Arbitrariness
(Tex:..;Const. Art. I §19 & U. S .Const .Amend .5 ,14)
By permitting trial courts to decide case by case what issues
are relevant without first decalaring a policy or fixing a standard
to be applied in plea bargain cases by which courts may be governed:
1) It introduces arbitrariness into punishment proceedings.
2) It eliminates his right to review trial court decisions.
3) It undermines the Texas Adversary System.
The right to appeal sentencing issues is eliminated by Art,
37.07 §3 because there is no standard which the court's decision
can be measured by. There is no basis for objection.". V' •
13
Article 37.07 §3(a)'s phrase "any matter the court deems relevant"
meetes the very definition of arbitrariness:
Arbitrariness: Conduct or acts based alone upon one's will,
and not upon any course of reasonaing and exercise of judgement,
see Garmen v. Myers, 183 Okl.141 80 P.2d 624,626.
Arbitrariness means as fixed or done capriciously ar at pleasure,
without adequate determinating principle, not found in the nature
of things; nonrational, not done or acting according to reason.
Black's Law Dict;.' (p.96 West 5th Ed.1989) adds to this definition
"in the present case what issues are relevant and therefore
admissible is left completely to the unfettered whim of each
trial court in Texas." Under Art.37.07§3(a) each judge is a
legislature unto himself.
Appellant has a right to meaningful review od decisions compla
ined of at the trllal court level, see Evitts v. Lucy,469 U-S-387,
396-99, 105 S.Ct.830, 835-36, 83 L. Ed. 2d 821 (1986).
Whatever a particular trial court deems relevant to the proceedings
is admissible. Ther is no standard at all against which the trial
court's decision can be measured in adjudication proceedings. If
the trial court admits evidence as relevant, the decision can
never be error, regardless of the circumstances or whether a plea
of guilty is involved. By eliminating any objectionable standard
by which the trial courts may be guided, meaningful review is
precluded regarding the admissibility and relevance of evidence
at adjudication proceedings to assess punishment'.' Where the issues
are unnamed and undefined, they are impossible to dispute.
14.
PRAYER FOR RELIEF
For the reasons staed above, it is respectfully submitted that
the Court of Criminal Appeals of Texas should grant this Petition
for Discretionary Review. And enter an order for any and all
relief available to Petitioner from this Honorable Court.
Respectfully submitted,
Casey -Hllison #1973717
address:
Co. 72/. HO if
f^eu \2t»H.~ Tex 75S7&
15.
APPENDIX "A"
"Memorandum Opinion"
17.
IN THE
TENTH COURT OF APPEALS
NO.10-14-00403-CR
CASEY LEE TILLISON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 36116CR
MEMORANDUM OPINION
Casey Lee Tiilison pled guilty to the offense of aggravated sexual assault of a
child. See Tex. Penal Code Ann. § 22.021(a)(l)(A)(i), (2)(b) (West 2011). The trial court
deferred an adjudication of guilt and placed Tiilison on community supervision for 10
years. Two years later, the State filed a motion to proceed with an adjudication of
Tillison's guilt. After a hearing, the trial court found Tiilison had violated three
conditions of his community supervision, adjudicated Tiilison guilty, and sentenced
Tiilison to 65 years in prison. Because the trial court did not abuse its discretion in
revoking Tillison's community supervision and adjudicating Tillison's guilt, but erred
in imposing a fine that was not orally pronounced at sentencing, the trial court's
judgment is modified to deletethe fineand affirmed as modified.
Error in the Judgment
In his first three issues, Tiilison complains about error in the written judgment
which, he contends, should be modified. First, Tiilison contends the judgment should
be modified to properly reflect the sections of the Texas Penal Code of which he was
found -to'have--been convicted. However, Tiilison cites to nothing--to support- the •
proposition that the judgment in this case needs to be modified. As the Code of
Criminal Procedure requires, the judgment accurately reflects that Tiilison was
convicted of the offense of aggravated sexual assault of a child. Tex. CODE CRIM. PROC.
ANN. art. 42.01, Sec. 1(13) (West 2006) ("The judgment shall reflect...the offense or
offenses for which the defendant is convicted.").- The Code does, not require' the-
statutory penal provisions or every nuance of the statutory penal provisions also be
reflected in the judgment. The fact that the Penal Code provision cited along with the
name of the offense in this particular judgment only refers to the subsection regarding
the victim's age does not make the judgment in need of correction. Tillison's first issue
is overruled.
Next, Tiilison complains that the judgment mustbe reformed because the elected
County and District Attorney for Ellis County was listed onthe judgment instead ofthe
Tiilison v. State Pa8e 2
assistant who participated in the revocation hearing. Again, Tiilison cites to nothing to
show that the elected State's attorney cannot be named in the judgment if he did not
participate in the proceeding- resulting in- the judgment. The Texas-Code -of Criminal
Procedure states that a judgment shall reflect "[tjhat the case was called and the parties
appeared, naming the attorney for the state . . . and the attorney for the defendant[.]"
Tex. Code Crim. Proc. Ann. art. 42.01, § 1(2) (West 2006). The elected County and
District Attorney for Ellis County is the attorney for the State in this case. Tillison's
second issue is overruled.
Lastly, Tiilison asserts the trial court erred in imposing a fine in its written
judgment when the court had not imposed a fine in its oral pronouncement of Tillison's
sentence. When the oral pronouncement of sentence and the written judgment vary,
the oral pronouncement controls. Exparte Madding, 70 S.W.3d 131,135 (Tex. Crim. App.
2002). The State agrees that no fine was orally pronounced by the trial court during
Tillison's sentencing. Accordingly, Tillison's third issue is sustained.
Violations of Community Supervision
In his last three issues, Tiilison complains that the trial court abused its discretion
in adjudicating Tillison's guilt based on a violation of conditions 34, 35, and 38 of his
terms of community supervision. Condition 34 related to Tiilison having no contact
with a person under the age of 17 unless supervised by a person approved by the
community supervision department; condition 35 related to Tiilison participating in sex
Tiilison v. State Page 3
offender counseling until successful discharge; and condition 38 related to Tiilison
submitting to random polygraph exams.
The decision to proceed to adjudication of guilt is reviewable- in the same manner
as a revocation of "ordinary" community supervision. Tex. Code Crim. Proc. Ann. art.
42.12 § 5(b) (West 2006); Duncan v. State, 321 S.W.3d 53, 56 (Tex. App.-Houston [1st
Dist.] 2010, pet. refd). We review a decision to revoke community supervision, and by
extension a decision to adjudicate, for an abuse of discretion. Rickets v. State, 202 S.W.3d
759, 763 (Tex. Crim. App. 2CGG); Duncan, 321 S.W.3d at'56-57. The State's burden of-
proof in a revocation proceeding is by a preponderance of the evidence. Cobb v. State,
851 S.W.2d 871, 874 (Tex. Crim. App. 1993). Further, the violation of a single condition
of community supervision is sufficient to support a revocation. Smith v. State, 286
S.W.3d 333, 342 (Tex. Crim. App. 2009) ("We have long held that 'one sufficient ground
for revocation would support 'the trial court's-order revoking' community-.supervision.").
(quoting Jones v. State, 571 S.W.2d 191,193-94 (Tex. Crim. App. [Panel Op.] 1978); Moore
v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Moses v. State, 590
S.W.2d 469,470 (Tex. Crim. App. [Panel Op.] 1979). Thus, in order to prevail on appeal,
an appellant must successfully challenge all the findings that support the revocation
order. Joseph v. State, 3 S.W.3d 627,640 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
At times, Tiilison was under the supervision of the Dallas County Community
Supervision and Corrections Department. While under Dallas County's supervision,
Tiilison v. State Page 4
Tiilison admitted to his community supervision officer that he had contact with a 17
year old minor, Tillison's niece, at Tillison's brother's party. Tillison's brother could not
recall if Tiilison was at the party. There was testimony, however, feat at the time of the
party, the niece would have been only 16 years old. This is enough to support the trial
court's finding that Tiilison violated condition 34, relating to Tiilison having no contact
with a person under the age of 17 unless supervised by a person approved by the
department. Because proof by apreponderance of the evidence of only one violation is
sufficient to support revocation, the trial court did not abuse its discretion in revoking
Tillison's community supervision and adjudicating Tillison's guilt. Tillison's fourth,
fifth, and sixth issues are overruled.
Conclusion
Having determined the trial court did not abuse its discretion in revoking
Tillison's community supervision and adjudicating Tillison's guilt but also having
sustained Tillison's third issue regarding the imposition of a fine not orally pronounced
at sentencing, we modify the trial court's judgment to delete the fine and affirm the
judgment as modified.
TOM GRAY
Chief Justice
Tiilison v.State Pa8e 5
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed July 2,
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