William Walton Harvey, Jr. v. State ( 2014 )

Opinion issued November 20, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00590-CR
———————————
WILLIAM WALTON HARVEY, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Court Case No. 05-02-01022-CR
MEMORANDUM OPINION
In 2005, appellant, William Walton Harvey, Jr., pleaded guilty to the
second-degree felony offense of sexual assault of a child.1 The trial court deferred
1
See TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (Vernon 2011).
adjudication of guilt and placed appellant on community supervision for seven
years. In 2013, the State moved to adjudicate guilt, alleging seven distinct
violations of the terms of appellant’s community supervision. The trial court found
that appellant violated six conditions of his community supervision and assessed
punishment at ten years’ confinement. In two issues, appellant contends that
(1) the State failed to present sufficient evidence to support the adjudication of his
guilt; and (2) the trial court erroneously failed to hold a separate punishment
hearing after adjudicating his guilt.
We affirm.
Background
In 2005, pursuant to an agreed recommendation on punishment, appellant
pleaded guilty to sexually assaulting N.B.E., his fourteen-year-old daughter. The
trial court deferred adjudication of guilt and placed appellant on community
supervision for seven years. One of the conditions of appellant’s community
supervision required him to “participate in and successfully complete the
Montgomery County Department of Community Supervision and Corrections’
program designed specifically for sex offenders, or other sex offender program
designated by the Department’s supervising officer.” Originally, the trial court set
appellant’s period of community supervision to expire in October 2012.
2
In April 2012, the trial court extended appellant’s community supervision
for an additional three months until January 12, 2013. At this time, the trial court
also imposed the following additional condition:
Community Supervision is hereby extended for three months until
January 12, 2013. Supervision Fees for the period of extension are
added at a rate of $60.00 per month beginning November 2012, to be
paid to the Montgomery County Department of Community
Supervision and Corrections.
The trial court handwrote the following on the order: “Defendant must complete
[p]olygraph ASAP [and m]ake each counseling session for 6 weeks [without] fail.”
This order did not include amendments to the language of any existing condition of
community supervision.
On January 2, 2013, the State moved to adjudicate guilt, alleging that
appellant had violated seven distinct conditions of his community supervision.
The State alleged,
Defendant failed to participate in and successfully complete a
counseling program specifically designed for sex offenders, to-wit:
the defendant began treatment in October 2005. He will not complete
the program before [the] expiration date [of community supervision]
due to excessive unexcused absences and being unprepared when he
does attend. His therapist recommends at least a six month extension.
The defendant has had approximately 60 unexcused absences.
The State also alleged that (1) during a post-polygraph interview, appellant
admitted to watching movies depicting nudity and sexually explicit scenes;
(2) appellant was deceptive on polygraph questions concerning alcohol use and
3
intentionally being alone, unsupervised, with minors; (3) appellant “failed to work
faithfully at suitable employment as far as possible”; (4) appellant failed to do his
required sixteen hours of community service per month for numerous months;
(5) appellant failed to pay the Sexual Assault Program fee for numerous months;
and (6) appellant failed to pay in a timely manner the supervisory fees to the
Montgomery County Department of Community Supervision and Corrections for
numerous months.
The trial court held a hearing on the State’s motion to adjudicate guilt. At
the beginning of the hearing, the trial court took judicial notice of the court’s file
from the previous plea proceedings and then had the following exchange with the
State:
[State]: And, Judge, just for the record, this is a motion to
adjudicate. And if he is adjudicated on this and there is a
punishment phase, this kind of—some of the testimony
kind of runs together. So if we could just kind of do it all
at once with his probation officer?
The Court: I am not going to have a bifurcated hearing. So, I mean,
since it is a motion to adjudicate, I am going to hear the
violations. But I also, obviously, want additional
information because it is a motion to adjudicate, as
opposed to a motion to revoke.
Defense counsel did not object when the trial court announced its decision to hold
only one hearing instead of a separate hearing on punishment should it find the
allegations in the motion to adjudicate true.
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Lisa Foster, with the Montgomery County Community Supervision and
Corrections Department, testified that she began supervising appellant in 2005.
Foster testified that appellant did not comply with several of the conditions of his
community supervision, including missing “numerous sex offender counseling
groups.” Foster received approximately sixty “no-show” faxes from the
counseling center regarding appellant’s absences from counseling sessions. Foster
testified that the trial court amended the conditions of appellant’s community
supervision in April 2012 and required appellant to attend “each counseling session
for [six] weeks [without] fail.” Appellant complied with this additional condition
and did not miss another counseling session until November 2012. Foster also
testified that, although appellant complied with the new condition, he did not
successfully complete the required sex offender counseling program. At the time
the State moved to adjudicate guilt, appellant had completed three of the four
phases of the counseling program, but he never successfully completed Phase Four.
Foster also testified that appellant occasionally worked as a pipefitter, but
when those jobs ended, he did not obtain further employment because, as he told
her, “he could not go and just get any job because he had to get a union job.”
Appellant spent approximately twenty-one months, out of the seven years of his
community supervision, unemployed. Foster also testified that appellant did not
complete sixteen hours of community service per month and that he often did not
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timely pay his sexual assault program fees and his supervisory fees, although she
agreed that he had ultimately completed those three requirements by the time of the
hearing on the State’s motion to adjudicate. Foster additionally testified that
appellant admitted, during a post-polygraph interview, that he had watched some
movies from the Red Box rental service that depicted female nudity. She stated
that this violated one of the rules of appellant’s counseling program.
Defense counsel conceded that appellant missed counseling sessions and did
not complete the program. Angela Harvey, appellant’s wife, also admitted that
appellant missed counseling sessions. Defense counsel called several witnesses,
including Angela Harvey, N.B.E., the complainant, appellant’s sister, and
appellant’s mother-in-law, all of whom testified that they believed appellant had
made progress and should be released from community supervision. N.B.E.
testified regarding the circumstances surrounding appellant’s conduct leading to
his arrest, but she also testified that appellant had changed and that she had
forgiven him. Defense counsel also elicited testimony from appellant’s sister
concerning their difficult upbringing and how appellant had changed in a positive
manner since he had begun the court-mandated counseling.
The trial court found six of the seven allegations in the State’s motion to
adjudicate guilt true, adjudicated appellant guilty of the charged offense of sexual
6
assault of a child, and assessed punishment at ten years’ confinement. 2 Appellant
did not file a motion for new trial.
Revocation of Community Supervision
In his first issue, appellant contends that the trial court abused its discretion
in revoking his community supervision because the State failed to present
sufficient evidence to support the trial court’s findings that appellant violated six
conditions of his community supervision.
A. Standard of Review
A trial court’s decision to proceed to an adjudication of guilt and revoke
deferred-adjudication community supervision is reviewable in the same manner as
a trial court’s revocation of ordinary community supervision. See TEX. CODE
CRIM. PROC. ANN. art. 42.12 § 5(b) (Vernon Supp. 2014); Lawrence v. State, 420
S.W.3d 329, 331 (Tex. App.—Fort Worth 2014, pet. ref’d). At a hearing to revoke
a defendant’s community supervision, the State must prove by a preponderance of
the evidence that the defendant has violated a condition of his community
supervision. Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006)
(quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)); Silber
2
The trial court did not find the following allegation true: “On June 17, 2011, Mr.
Harvey submitted to a clinical polygraph exam wherein deception was indicated
on questions asking about alcohol use and intentionally being alone, unsupervised
with any minors. The defendant did not make any admissions during the post-test
interview.”
7
v. State, 371 S.W.3d 605, 611 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
“[A]n order revoking probation must be supported by a preponderance of the
evidence; in other words, that greater weight of the credible evidence which would
create a reasonable belief that the defendant has violated a condition of his
probation.” Rickels, 202 S.W.3d at 763–64 (quoting Scamardo, 517 S.W.2d at
298); Silber, 371 S.W.3d at 611. Our appellate review of an order revoking a
defendant’s community supervision is limited to determining whether the trial
court abused its discretion in ruling that the defendant violated the terms of his
community supervision. Rickels, 202 S.W.3d at 763 (quoting Cardona v. State,
665 S.W.2d 492, 493 (Tex. Crim. App. 1984)); Duncan v. State, 321 S.W.3d 53,
56–57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We examine the
evidence in the light most favorable to the trial court’s order. Duncan, 321 S.W.3d
at 57; Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.]
2006, pet. ref’d).
A finding of a single violation of the terms and conditions of community
supervision is sufficient to support revocation. Silber, 371 S.W.3d at 611; Joseph
v. State, 3 S.W.3d 627, 640 (Tex. App.—Houston [14th Dist.] 1999, no pet.); see
also Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980) (“We need not
address appellant’s other contentions since one sufficient ground for revocation
will support the court’s order to revoke probation.”). Thus, to prevail on appeal,
8
the defendant must successfully challenge all of the findings that support the
revocation order. Silber, 371 S.W.3d at 611; Joseph, 3 S.W.3d at 640 (citing Jones
v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. 1978)); see also Baxter v.
State, 936 S.W.2d 469, 472 (Tex. App.—Fort Worth 1996, pet. dism’d) (holding
that because appellant did not challenge second ground for revocation, sufficient
evidence supported revocation order).
B. Failure to Complete Sex Offender Counseling
In its motion to adjudicate guilt, the State alleged that appellant failed to
complete the required sex-offender counseling program. Lisa Foster, appellant’s
community supervision supervisor, testified that appellant missed approximately
sixty counseling sessions, that he completed only three out of four phases of the
counseling program, and that, therefore, he did not successfully complete the
program. Defense counsel conceded at the hearing on the State’s motion to
adjudicate guilt that appellant missed numerous counseling sessions and that he did
not complete the program.
Appellant argues on appeal that the April 2012 order adding an additional
community supervision condition changed the counseling requirement such that
appellant only had to attend the next six consecutive counseling sessions—which it
is undisputed that he did—and that, after he satisfied the amended condition, he no
9
longer had to complete the counseling program, which had been required by the
original community supervision conditions. We disagree.
The April 2012 order included the following new condition:
Community Supervision is hereby extended for three months until
January 12, 2013. Supervision Fees for the period of extension are
added at the rate of $60.00 per month beginning November 2012, to
be paid to the Montgomery County Department of Community
Supervision and Corrections.
The trial court handwrote the following under this new condition: “Defendant must
complete [p]olygraph ASAP [and m]ake each counseling session for 6 weeks
[without] fail.” The language of the amendment does not indicate that the trial
court altered or superseded any previously existing condition. The order does not
provide that if appellant attended the next six consecutive counseling sessions his
counseling obligation would be complete, even if he had not otherwise completed
all four phases of the counseling program. Instead, the order merely states that he
must “[m]ake each counseling session for [six] weeks [without] fail.”
We interpret this language as a further condition that appellant was required
to meet in addition to his existing requirement of successfully completing the sex
offender counseling program. The plain language of the April 2012 order does not
provide that attending the next six counseling sessions would release appellant
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from his responsibility to complete the counseling program. 3 The record contains
evidence that appellant complied with the amended condition by attending the next
six counseling sessions; indeed, he attended the next six months’ worth of sessions
before he next missed a meeting in November 2012. However, the record also
includes testimony that appellant did not successfully complete all phases of the
program.
When viewing the evidence in the light most favorable to the trial court’s
order, as we must when reviewing a trial court’s decision to revoke community
supervision, we conclude that the State has proved by a preponderance of the
evidence that appellant violated the condition of his community supervision that
required him to successfully complete a sex-offender counseling program. See
Rickels, 202 S.W.3d at 763–64 (holding that State must prove, by preponderance
of evidence, that defendant violated condition of community supervision); Duncan,
321 S.W.3d at 57 (holding that when reviewing trial court’s order revoking
community supervision we view evidence in light most favorable to order).
Because a finding of a single violation is sufficient to support revocation of
community supervision, we need not address whether the State proved by a
preponderance of the evidence that appellant violated the other conditions of
3
We note that the April 2012 order required appellant to attend the next six
consecutive counseling sessions and that appellant not only did so but also
continued attending sessions into November 2012, indicating that appellant
viewed his counseling obligation as ongoing until he completed the program.
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community supervision specifically enumerated in the State’s motion to adjudicate
guilt. See Moore, 605 S.W.2d at 926; Silber, 371 S.W.3d at 611; Joseph, 3 S.W.3d
at 640. We therefore hold that the trial court did not abuse its discretion in
revoking appellant’s community supervision. See Rickels, 202 S.W.3d at 763;
Duncan, 321 S.W.3d at 56–57.
We overrule appellant’s first issue.
Failure to Hold Separate Punishment Hearing
In his second issue, appellant contends that the trial court erroneously failed
to hold a separate punishment hearing after adjudicating him guilty of the charged
offense.
The Court of Criminal Appeals has held that a defendant “is entitled to a
punishment hearing after the adjudication of guilt, and the trial judge must allow
the accused the opportunity to present evidence.” Vidaurri v. State, 49 S.W.3d
880, 885 (Tex. Crim. App. 2001) (quoting Issa v. State, 826 S.W.2d 159, 161 (Tex.
Crim. App. 1992) (emphasis in original)); see also TEX. CODE CRIM. PROC. ANN.
art. 42.12, § 5(b) (“After an adjudication of guilt, all proceedings, including
assessment of punishment . . . continue as if the adjudication of guilt had not been
deferred.”). Although a defendant is entitled to a separate punishment hearing
after an adjudication of guilt, this is a statutory right that can be waived. See
Vidaurri, 49 S.W.3d at 886 (citing Issa, 826 S.W.2d at 161). The trial court should
12
be given the chance to allow the defendant to present punishment evidence or to
make a ruling denying the defendant such an opportunity. See id.; Pearson v.
State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) (“Appellant had the
opportunity to present evidence during the proceedings. That is all that is
required.”) (emphasis in original). If the trial court denies the defendant an
opportunity to present punishment evidence, the defendant should bring the issue
to the attention of the trial court via a motion for new trial to preserve error.
Vidaurri, 49 S.W.3d at 886; Lopez v. State, 96 S.W.3d 406, 414 (Tex. App.—
Austin 2002, pet. ref’d) (“In order to preserve error for review as to the lack of a
punishment hearing, a defendant must timely request such a hearing, object to the
lack of such a hearing, or file a timely motion for new trial based on the
omission.”).
Here, before the trial court began hearing testimony on the State’s motion to
adjudicate guilt, the State and the trial court had the following exchange:
[State]: And, Judge, just for the record, this is a motion to
adjudicate. And if he is adjudicated on this and there is a
punishment phase, this kind of—some of the testimony
kind of runs together. So if we could just kind of do it all
at once with his probation officer?
The Court: I am not going to have a bifurcated hearing. So, I mean,
since it is a motion to adjudicate, I am going to hear the
violations. But I also, obviously, want additional
information because it is a motion to adjudicate, as
opposed to a motion to revoke.
13
Defense counsel did not object at this point, or at any other point during the
hearing, to the trial court’s decision not to hold a separate punishment hearing.
Defense counsel did not move for a new trial. Furthermore, during the hearing,
defense counsel called several witnesses, including appellant’s wife, his daughter,
the complainant, his sister, and his mother-in-law, all of whom provided mitigating
evidence and expressed their desire that the trial court release appellant from
community supervision.
Appellant argues on appeal that his trial counsel did not have an opportunity
to object during the hearing to the trial court’s decision not to hold a separate
punishment hearing, and, thus, he did not fail to preserve error. The Court of
Criminal Appeals has held, however, that if the defendant does not have an
opportunity to object to the failure to hold a separate punishment hearing until after
the trial court takes action, the defendant must raise his complaint in a motion for
new trial to preserve error. See Pearson, 994 S.W.2d at 179; see also Vidaurri, 49
S.W.3d at 886 (“Assuming appellant was, as he alleges, prevented from [raising
the lack of a separate punishment hearing issue] by request or objection, he should
have brought the issue to the attention of the trial court with a motion for new
trial.”); Lopez, 96 S.W.3d at 414 (“The use of a motion for new trial to preserve
error is apparently limited to the rare circumstances of Issa—when there is no
opportunity to object to the lack of a hearing.”).
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Here, even if appellant did not have an opportunity to object during the
hearing to the trial court’s decision not to hold a separate punishment hearing, a
matter we need not decide, appellant was still required to raise the complaint in a
motion for new trial to preserve error. See Lopez, 96 S.W.3d at 414 (“The issue
cannot be raised for the first time on appeal.”). Because appellant failed to request
a separate punishment hearing, object to the trial court’s decision not to hold a
separate punishment hearing, or raise the issue in a motion for new trial, we hold
that appellant failed to preserve this complaint for appellate review. See Vidaurri,
49 S.W.3d at 886; Pearson, 994 S.W.2d at 179; Lopez, 96 S.W.3d at 414; Baxter,
936 S.W.2d at 472.
We overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. TEX. R. APP. P. 47.2(b).
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