Casey Lee Tillison v. State ( 2015 )

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 Tillison pled guilty to the offense of aggravated sexual assault of a
child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i), (2)(b) (West 2011). The trial court
deferred an adjudication of guilt and placed Tillison 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 Tillison had violated three
conditions of his community supervision, adjudicated Tillison guilty, and sentenced
Tillison 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 delete the fine and affirmed as modified.
ERROR IN THE JUDGMENT
In his first three issues, Tillison complains about error in the written judgment
which, he contends, should be modified. First, Tillison 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, Tillison 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 Tillison 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, Tillison complains that the judgment must be reformed because the elected
County and District Attorney for Ellis County was listed on the judgment instead of the
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assistant who participated in the revocation hearing. Again, Tillison 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 "[t]hat 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, Tillison 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. Ex parte 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, Tillison 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 Tillison 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 Tillison participating in sex
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offender counseling until successful discharge; and condition 38 related to Tillison
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. ref'd). We review a decision to revoke community supervision, and by
extension a decision to adjudicate, for an abuse of discretion. Rickels v. State, 202 S.W.3d
759, 763 (Tex. Crim. App. 2006); 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, Tillison was under the supervision of the Dallas County Community
Supervision and Corrections Department. While under Dallas County’s supervision,
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Tillison 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 Tillison was at the party. There was testimony, however, that 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 Tillison violated condition 34, relating to Tillison having no contact
with a person under the age of 17 unless supervised by a person approved by the
department. Because proof by a preponderance 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
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed July 2, 2015
Do not publish
[CRPM]
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