Terry Atkins v. State ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00509-CR
Terry Atkins, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. D-1-DC-11-302358, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
MEMORANDUM OPINION
In May 2012, appellant Terry Atkins pleaded guilty to a third degree felony charge
of violation of a protective order. See Tex. Penal Code § 25.07(g). The trial court deferred
adjudication of guilt and placed appellant on five years community supervision. See Tex. Code
Crim. Proc art. 42.12, § 5 (deferred-adjudication community supervision). Two months later, the
State filed a motion to proceed with adjudication of guilt based on numerous violations of the terms
and conditions of community supervision. At the conclusion of the adjudication hearing, the trial
court found by a preponderance of the evidence that appellant had violated conditions of supervision
and (1) granted the State’s motion, (2) adjudicated appellant guilty of violating a protective order,
and (3) sentenced him to four years’ confinement in the Texas Department of Criminal Justice. On
appeal, appellant contends the trial court abused its discretion by adjudicating guilt based on legally
insufficient evidence that he violated his community supervision. Appellant also contends the trial
court’s ruling infringed on his right to freedom of speech protected by the First Amendment of the
United States Constitution. For the reasons that follow, we will affirm the judgment.
DISCUSSION
The decision to proceed with an adjudication of guilt is reviewable in the same
manner as a revocation of “ordinary” community supervision, that is, for an abuse of discretion. Id.
at § 5(b); see Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State,
665 S.W.2d 492, 493 (Tex. Crim. App. 1984). An order revoking supervision must be supported
by a preponderance of the evidence. Rickels, 202 S.W.3d at 763; Cobb v. State, 851 S.W.2d 871,
873 (Tex. Crim. App. 1993). We consider the evidence presented at the hearing in the light most
favorable to the trial court’s findings. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App.
1981); Mauney v. State, 107 S.W.3d 693, 695 (Tex. App.—Austin 2003, no pet.). The violation of
a single condition is sufficient to support a revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex.
Crim. App. 1980); Atchison v. State, 124 S.W.3d 755, 758 (Tex. App.—Austin 2003, pet. ref’d).
Thus, to prevail on appeal, an appellant must successfully challenge all of the trial court’s findings
that support revocation. Silber v. State, 371 S.W.3d 605, 611 (Tex. App.—Houston [1st Dist.] 2012,
no pet.); see Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. 1978). The trial court’s
judgment will be upheld if the evidence is sufficient to support any ground alleged. See Dunavin
v. State, 611 S.W.2d 91, 101 (Tex. Crim. App. 1981).
In its Motion to Proceed with Adjudication of Guilt, the State alleged that, in violation
of the terms and conditions of his deferred-adjudication community supervision, appellant:
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1. Failed to allow the supervision officer to visit him at home or elsewhere on
January 9, 2013;
2. Failed to pay court costs and is delinquent $56.31;
3. Failed to pay supervision fees and is delinquent $229.93;
4. Failed to pay restitution and is delinquent $225.23;
5. Failed to pay family violence center fee and is delinquent $17.53;
6. Failed to report to, cooperate with, and participate in a Family Violence Program
through CES;
7. Failed to participate in the Global Positioning System (GPS) program; and
8. Committed a subsequent criminal offense on February 22, 2013, particularly
retaliation against Judge Julie Kocurek. See Tex. Penal Code § 36.06(a)(1)(A)
(obstruction or retaliation of a public servant, a third-degree felony).
At the hearing on the State’s motion, appellant pleaded not true to all of the alleged
violations. The State presented the testimony of four witnesses, including appellant’s community
supervision officer, Charles Hoy. Hoy testified that appellant was scheduled to participate in a home
visit by his supervision officer on January 9, 2013. However, he further testified that the visit did
not occur because appellant was not home or did not answer the door, and he did not answer his
phone. Hoy also testified that appellant failed to participate in the GPS monitoring program by
failing to charge his tracking device.
As to the allegation of retaliation, the evidence admitted at the hearing included the
testimony of Rachele Smith, owner of Victims Safety First, a company that provides Travis County
with GPS monitoring services for people on community supervision. Smith testified that appellant
began talking with her after he exited the company’s office and, in that discussion, appellant made
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profane remarks, saying that he hated Judge Kocurek, and threatened to kill the judge with a gun.
In response to those remarks, Smith called the police and contacted appellant’s probation supervisor.
In addition, the State provided testimony from Rebecca Chatagnier, an employee at Victims Safety
First who witnessed the conversation between Smith and appellant. Chatagnier testified that she saw
appellant make a gun sign with his finger and thumb and did not believe he was joking.
At the conclusion of the hearing, the trial court explicitly found the violations
regarding the failure to allow the supervision officer to visit his home, the failure to participate in
the GPS program, and the commission of the retaliation offense against Judge Kocurek to be true.
The court made no oral findings as to the remaining allegations.
On appeal, appellant asserts that there is insufficient evidence to support the trial
court’s finding that appellant had violated his community supervision. He argues that the evidence
is insufficient to show retaliation because there was no evidence that he intended his statements to
be interpreted as expressions of intent to harm a public servant or to inhibit the judge’s service as
a public official. Appellant also contends that the trial court’s ruling violated his right to free speech
protected by the United States Constitution because his words were voicing a protest to his current
situation rather than making an actual threat.
Contrary to appellant’s claims, the evidence presented at the adjudication hearing
supports the trial court’s decision to adjudicate guilt based on its finding that the terms and
conditions of appellant’s community supervision were violated, including the explicit findings
regarding the failure to allow a home visit and the failure to participate in the GPS monitoring
program. Thus, we need not determine whether sufficient evidence supports the trial court’s finding
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that appellant committed the subsequent offense of retaliation as alleged in the State’s motion, nor
whether the retaliation charge infringes on appellant’s right to freedom of speech protected by the
Constitution. See Tex. R. App. P. 47.1. One violation will support the decision to adjudicate, and
the trial court expressly based its decision on its finding that the allegations concerning the failure
to allow the home visit and the failure to participate in the GPS program were true. We therefore
overrule appellant’s issues and affirm the judgment adjudicating guilt.
__________________________________________
Cindy Olson Bourland, Justice
Before Justices Puryear, Pemberton, and Bourland
Affirmed
Filed: July 24, 2015
Do Not Publish
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