Tumlinson, Charles Edward ( 2015 )

PD-0121-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/22/2015 12:36:03 PM
Accepted 2/26/2015 11:32:02 AM
NO. PD-0121-15 ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CHARLES EDWARD TUMLINSON,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
From the First Court of Appeals
No. 01-14-00238-CR
Appealed from the 149th Judicial District Court
of Brazoria County, Texas
Trial Court Cause No. 50946
Honorable Terri Holder, Judge Presiding
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
D. CRAIG HUGHES
State Bar No. 10211025
LAW OFFICES OF D. CRAIG HUGHES
7322 Southwest Freeway, Suite 1100
Houston, Texas 77074
Tel - (713) 535-0683
February 26, 2015
Fax - (713) 981-3805
ATTORNEY FOR APPELLANT
CHARLES EDWARD TUMLINSON
TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
IDENTITY OF JUDGE, PARTIES, AND COUNSEL. . . . . . . . . . . . . . . . . . . . . iv
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Court of Appeals Erred in Affirming the District Court’s
Judgment Granting the State’s First Amended Motion to Adjudicate
Guilt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CONCLUSION AND PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
APPENDIX
ii
INDEX OF AUTHORITIES
Cases Page(s)
Bearden v. Georgia, 461 U.S. 660 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11
Duncan v. State, 321 S.W.3d 53, 56 (Tex. App.-Houston [1st Dist.]
2010, pet. ref'd). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Dureso v. State, 988 S.W.2d 448, 450-51 (Tex. App.—Houston [1st Dist.]
1999, pet. ref'd). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8
Gagnon v. Scarpelli, 411 U.S. 778, 790 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Gipson v. State, 383 S.W.3d 152 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . 9, 11
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . 2
Pierce v. State, 113 S.W.3d 431, 437 (Tex.App.—Texarkana
2003, no pet. h.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Zablocki v. Redhail, 434 U.S. 374, 400 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Statutes and Rules
Section 3.01,Texas Penal Code.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 22.011(a)(2)(A),Texas Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .1
Section 21.11,Texas Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (West Supp. 2010). . . . . . . . . . . . . . . 2
Tex. Code Crim. Proc. Art. 42.12 § 21(c) (Vernon Supp.2003).. . . . . . . . . . . . . . 2, 11
iii
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
Pursuant to Rule 68.4(a) of the Texas Rules of Appellate Procedure, a complete
list of the names of all interested parties is provided below.
1. Honorable Terri Holder, Presiding District Judge
2. Charles Edward Tumlinson, Appellant
2. Bill Leathers, trial counsel for Appellant
3. D. Craig Hughes, trial and appellate counsel for Appellant
4. Jeri Yenne, Brazoria County Criminal District Attorney
5. Greg McMillian, Brazoria County Assistant Criminal District Attorney
6. Brian Hrach, Brazoria County Assistant Criminal District Attorney
iv
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument to aid the Court in the decisional process.
v
STATEMENT OF THE CASE
On February 22, 2006, a grand jury in Brazoria County, Texas, returned a two
(2) count Indictment against Charles Edward Tumlinson (“Tumlinson”). Count One
charged him with Aggravated Sexual Assault of a Child, in violation of Section
22.011(a)(2)(A) of the Texas Penal Code (“TPC”); Count Two charged him with
Indecency with a Child by Contact, in violation of Section 21.11 of the TPC. The
Indictment further alleged that the charged conduct arose from, and constituted a
Criminal Episode, pursuant to Section 3.01 of the TPC. See CR 5.1
On October 23, 2007, the Court issued an Order of Deferred Adjudication
Placement of Community Supervision (“Order”) with respect to both Counts One and
Two, with specific terms and conditions. See CR6. On August 19, 2013, the State
filed its First Amended Motion to Adjudicate Guilt (“Motion”). See CR 21.
On March 14, 2014, a Hearing was held on the Motion. 2 RR at 1.
On March 20, 2014, a Judgment Adjudicating Guilt (“Judgment”) was entered
and Tumlinson was sentenced to thirty (30) years confinement in the Texas
Department of Criminal Justice-Institutional Division (“TDCJ”) on Count One, and
twenty (20) years confinement in TDCJ on Count Two, to run concurrent. See CR51.
On March 20, 2014, Tumlinson filed a Notice of Appeal. See CR49.
On December 18, 2014, the Court of Appeals for the First District of Texas
affirmed the judgment of the district court.
1
“CR” refers to the Clerk’s Record, which is immediately followed by the Entry Number.
“RR” refers to the Reporter’s Record, which is immediately preceded by the Volume number and
immediately followed by the Reporter Record’s page number(s).
1
STATEMENT OF PROCEDURAL HISTORY
On December 18, 2014, the Court of Appeals for the First District of Texas
affirmed the Judgment of the District Court. A copy of that opinion is attached in the
Appendix. No Motion for Rehearing was filed in the appellate court.
GROUND FOR REVIEW
Whether the Court of Appeals erred in affirming the District Court’s judgment
granting the State’s First Amended Motion to Adjudicate Guilt.
ARGUMENT
THE COURT OF APPEALS ERRED IN AFFIRMING THE
DISTRICT COURT’S JUDGMENT GRANTING THE STATE’S
FIRST AMENDED MOTION TO ADJUDICATE GUILT.
A. Standard of Review
The decision to proceed to an adjudication of guilt is reviewed in the same
manner as a revocation of “ordinary” community supervision. Tex. Code Crim. Proc.
Ann. art. 42.12 § 5(b) (West Supp. 2010); Duncan v. State, 321 S.W.3d 53, 56 (Tex.
App.-Houston [1st Dist.] 2010, pet. ref'd). This Court reviews 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. An order revoking community supervision must be supported
by a preponderance of the evidence. The State carries the burden of proving every
element of at least one revocation ground by a preponderance of the evidence. See
Pierce v. State, 113 S.W.3d 431, 437 (Tex.App.—Texarkana 2003, no pet. h.); citing
Tex. Code Crim. Proc. Art. 42.12 § 21 (Vernon Supp.2003).
2
B. Discussion
On March 20, 2014, the Court pronounced sentence in this case. 3 RR at 4. The
Court found that Tumlinson had violated certain terms and conditions of his deferred
adjudication probation, and revoked his community supervision for Count One,
alleging aggravated sexual assault of a child, and for Count Two, alleging indecency
with a child by contact, and sentenced him to serve 30 years confinement in TDCJ on
Count One, and 20 years confinement in TDCJ on Count Two, to run concurrent. Id.
In the Motion, there were four (4) alleged violations of the terms and
conditions of Tumlinson’s community supervision at issue: (1) failure to support
dependents; (2) failure to maintain consistent employment; (2) failure to seek suitable
employment; and (4) failure to successfully participate in a sex offender treatment
program. See CR 21.
(1) Allegation Three– Failure to Successfully Participate in a Sex
Offender Treatment Program
The Court of Appeals exclusively focused on the allegation that Tumlinson
failed to “successfully” participate in a sex offender treatment program in affirming
the District Court Judgment. Condition No. 2 of Tumlinson’s conditions of probation,
sex offender special conditions, stated simply:
“A defendant shall attend and participate in a sex offender treatment
program.”
Id.
That condition did not define what constituted “successful” participation, or
require same. Defense counsel asserted that participation, as defined in the terms and
3
conditions of community supervision, simply meant attendance at all meetings,
prompt payment of fees, and acknowledgment of responsibility for the defendant’s
offense. 2 RR at 188-89. O’Brien Counseling (“O’Brien”) records introduced into
evidence at the revocation hearing proved that Tumlinson had missed only four group
therapy sessions during the approximately five (5) years that he attended sex offender
therapy. State’s witness Henry John (“John”), who was a contract therapist with
O’Brien, testified at the revocation hearing that Tumlinson acknowledged
responsibility for his offense. See 2 RR at 3. John also testified that Tumlinson started
treatment at O’Brien on February 28, 2008, and continued with same into 2013, a
period of approximately five (5) years. 2 RR at 11. He further described the four (4)
levels of treatment at O’Brien, as well as Tumlinson’s participation in group therapy
and his advancement through those levels. 2 RR at 12-16.Therefore, evidence was
presented to the district court that Tumlinson did actively participate in a sex offender
treatment program, as defined in the terms and conditions of his community
supervision, which was all that was required of him.
As noted, the Court of Appeals specifically focused on this one allegation,
stating that “because this ground is sufficient to support the trial court’s adjudication
of guilty, we do not need to reach Appellant’s challenges to the other grounds.” See
Tumlinson v. State, (No. 01-14-00238-CR) (Tex.App.– Houston [1st Dist.] December
18, 2014)(“Tumlinson”) at 8. In support of this premise, the Court of Appeals cited
Canseco v. State, 199 S.W.3d 437, 438 (Tex.App.— Houston [1st Dist.] 2006, pet.
ref’d). The Court of Appeals further found that while Appellant was in the third phase
4
of his sex offender therapy treatment, he identified previously undisclosed details of
his offense that had not been part of his existing treatment. See Tumlinson, at 7. As
a result, he was returned to the first phase of treatment. Id. After he returned to the
first phase of treatment, the Court of Appeals found that his active involvement in the
therapy sessions declined. Id. Further, when he did participate, his answers to
questions became more “tangential, indirect and vague.” Id. Ultimately, the decision
was made to terminate him from the therapy sessions and move him back to the first
level. Id. According to the Court of Appeals, these decisions were made by the
clinical staff with consultation from the probation department to which Tumlinson
reported.
Tumlinson was removed from his original group therapy program in late July
of 2013. The State filed its motion to adjudicate in early August of 2013. At that time,
the Court of Appeals found that he was not involved in any group therapy program.
It is essential to note that during the five (5) years that he attended his sex
offender therapy group, Tumlinson only missed four sessions, one as a result of being
evacuated due to Hurricane Ike. State witness John testified that Tumlinson was
making progress toward responsible treatment goals. See 2 RR at 3. Dr. Scott Hickey
(“Hickey”), a State of Texas licensed clinical psychologist and sex offender treatment
provider, testified that during his sex offender group therapy sessions with
Tumlinson, that he was an “attentive and cooperative group participant”, paying
attention to what others had to say and offering constructive feedback. See 2 RR at
108. The State’s decision to file a motion to adjudicate Tumlinson was wholly
5
premature. There is no question that Tumlinson did successfully participate in a sex
offender treatment program for five years. During the short period of time that he was
not involved, he was seeking a new sex therapy program.
For the above and foregoing reasons, Tumlinson prays that the Court of
Appeal’s decision affirming the District Court’s Judgment to revoke his community
supervision be reversed and remanded, that the Judgment of the District Court be
vacated, and that his community supervision be reinstated.
(2 & 3) Allegations One and Two – Failure to Maintain Consistent
Employment and Failure to Seek Suitable Employment
To prevail on a motion to revoke based on lack of employment, the State must
show that a defendant failed to exercise diligence and good faith in seeking
employment. See Dureso v. State, 988 S.W.2d 448, 450-51 (Tex. App.—Houston [1st
Dist.] 1999, pet. ref'd). If it does, then the trial court’s decision to revoke community
supervision is sufficiently supported, and other grounds need not be addressed. Id.
Short periods of unemployment, during which the defendant demonstrates some effort
to obtain a job, will not support a finding that the defendant failed to secure and
maintain employment. See Dureso v.State, 988 S.W.2d at 450-51 (finding abuse of
discretion in revoking community supervision when defendant had been unemployed
for only one month, during which time defendant applied for jobs); Rehwalt v. State,
489 S.W.2d 884, 885 (Tex. Crim. App. 1973) (finding abuse of discretion in revoking
community supervision when State moved to revoke seven days after his employment
terminated).
6
In the revocation motion, the State alleged in paragraph 1 that Tumlinson failed
to maintain consistent employment, which the State claimed was a violation of the
rules, regulations and policies of the BCCSCD. (Emphasis added). See 2 RR at 186.
The Order stated in Condition E that Tumlinson was to:
“Obey all rules, regulations and policies of the Brazoria County
Community Supervision and Corrections Department.”
Id.
At the revocation hearing, Tumlinson asserted that neither Jeffrey Morrison
(“Morrison”) nor Glenda Pegrenet (“Pegrenet”), who were employed as supervision
officers with BCCSCD and were familiar with Tumlinson, or any other witness
testified that maintaining consistent employment is a rule, regulation or policy of the
BCCSCD. Morrison and Pegrenet testified that it was a condition of Tumlinson’s
community supervision to maintain consistent employment, but that language was not
specifically stated in Term O, or anywhere else. Again, with respect to any alleged
violation of Term E, there was no testimony by any witness that it was a rule,
regulation or policy of the BCCSCD to maintain consistent employment. Id.
The State also alleged in the motion that Tumlinson did not seek suitable
employment each and every month that he was on community supervision, in
violation of Term “O”. See CR 22. As such, the State’s burden was to prove that
Tumlinson did not seek suitable employment at any time during the entire term of his
community supervision. If Tumlinson was able to show at any time during the term
of his community supervision that he had sought suitable employment, which he
clearly did, then the State's request that he be revoked for that violation should have
7
been denied. See Dureso, 988 S.W.2d at 450.
To rebut the State’s allegations that Tumlinson failed to maintain consistent
employment, and that he failed to seek suitable employment, Tumlinson offered the
testimony of witnesses Mindy Tumlinson (Tumlinson’s wife) [2 RR at 128], Barbara
Jean Brown (Tumlinson’s aunt) [2 RR at 153-156], Corey Tumlinson (Tumlinson’s
sister) [2 RR at 158], Denise Ahmed (Tumlinson’s friend)[2 RR at 162], and Michael
G. Cummings (Tumlinson’s friend from church) [2 RR at 174] at the revocation
hearing. Their testimony proved by a preponderance of the evidence that Tumlinson
had maintained employment while on probation and was always obsessed with
finding work.
Condition “O” of the Order stated that Tumlinson was to “seek suitable
employment in some lawful occupation.” It did not state that he could not be self
employed. See 2 RR at 187. Further, it did not direct or specify a number of times
Tumlinson had to seek employment. Id. It did not state that he had to go to one
interview a week, one interview a month, one interview every quarter, or eight
interviews a day. Id. Consequently, that language was impermissibly vague and
ambiguous, and did not give Tumlinson sufficient notice of what he was required to
do in order to comply. Id. Therefore, the District Court should not have found that
alleged violation to be true.
(4) Allegation Four– Failure to Support Dependents
Condition “P” of the terms and conditions of Tumlinson’s community
supervision provided that he was to:
8
“support the dependents that you now have, or that you acquired during
the term of this community supervision.”
2 RR at 189.
However, that condition of probation did not require Tumlinson to support his
dependents at a certain level of his income, or to fully comply with any applicable
child support orders. Id. As such, it simply required him to provide support. Id. Over
the last thirty years, the U. S. Supreme Court, as well as Texas statutes, have
addressed the permissibility of revocation or incarceration when a defendant is unable
to pay amounts due pursuant to a community supervision order. See Gibson v. State,
383 S.W.3d 152 (Tex. Crim. App. 2012).
In federal constitutional law, the seminal case is Bearden v. Georgia, 461 U.S.
660 (1983) (holding that a sentencing court could not revoke probation for a failure
to pay a fine or make restitution absent evidence and findings that the probationer
willfully failed to pay and that alternative forms of punishment would be inadequate
to meet the State’s interests). In Bearden, the Supreme Court explained that the
reason for a probationer's nonpayment is critical. “If the probationer has willfully
refused to pay the fine or restitution when he has the means to pay, the State is
perfectly justified in using imprisonment as a sanction to enforce collection.” Id. at
668.
However, as here, if a probationer has made all reasonable efforts to pay
obligations pursuant to a community supervision order, and yet cannot do so fully
through no fault of his own, it is fundamentally unfair to revoke probation
automatically without considering whether adequate alternative methods of punishing
9
the defendant are available. Id. The Supreme Court reasoned that it could be
unconstitutional to deprive a defendant of his liberty when he was unable to pay. Id.
at 672–73. Noting that “[d]ue process and equal protection principles converge in the
Court's analysis,” it concluded that, “[b]y sentencing petitioner to imprisonment
simply because he could not pay the fine, without considering the reasons for the
inability to pay or the propriety of reducing the fine or extending the time for
payments or making alternative orders, the court automatically turned a fine into a
prison sentence” in violation of the Fourteenth Amendment. Id. at 665, 674. This lack
of fault provides a “substantial reaso[n] which justifie[s] or mitigate[s] the violation
and make[s] revocation inappropriate.” Gagnon v. Scarpelli, 411 U.S. 778, 790
(1972); Cf. Zablocki v. Redhail, 434 U.S. 374, 400 (1978) (distinguishing, under both
due process and equal protection analyses, persons who shirk their moral and legal
obligation to pay child support from those wholly unable to pay). The defendant's
employment status and ability to obtain employment are also factors to consider in
determining the defendant's ability to pay. See Bearden, 461 U.S. at 672.
With regard to Texas statutory law, at least a part of Tumlinson’s sufficiency
claim is governed by the ability-to-pay statute, which requires the State to prove, at
a revocation hearing, that a defendant was able to pay and failed to pay certain fees.
Tex. Code Crim. Proc. art. 42.12 § 21(c). This statute expressly applies to fees for
appointed counsel, community supervision, and court costs. Id. In Gibson, the trial
court revoked appellant’s community supervision, not only for failure to make those
payments explicitly listed in the statute, but also for failure to pay a fine and fees for
10
Crime Stoppers and pre-sentence investigation, which are not specifically listed in the
statute. See Gibson, 383 S.W.3d at 158. The court of appeals determined that the
statute applied to all of the amounts unpaid by appellant because the legislative
history of the statute revealed that the Legislature intended that it conform to the due-
process requirements set forth in Bearden. Id. As discussed, however, the court of
appeals erred in construing the due-process requirement described in Bearden as an
evidence-sufficiency requirement. See Gibson, 347 S.W.3d at 896. In Gibson,
because the court of appeals misapplied Bearden in its analysis of the ability-to-pay
statute, the Court remanded that case so that the lower court could consider, in light
of its opinion, whether the ability-to-pay statute applied to appellant’s unpaid
amounts that were not explicitly listed in the statute. Gibson, 383 S.W.3d at 158. The
Texas Court of Criminal Appeals has specifically noted the Texas ability-to-pay
statute imposes an evidentiary burden on the State, and is reviewed under a
sufficiency of the evidence analysis. See Gibson, 383 S.W.3d at 159.
In this case, the State failed to prove by a preponderance of the evidence that
Tumlinson had an ability to pay more child support than the amount he did pay. The
Court also failed to make any determination as to Tumlinson’s ability to pay.
Tumlinson did not “shirk” his obligation to pay support for his dependents. He made
an affirmative effort to do so, even though the amount of payment was less than his
court ordered child support.
11
CONCLUSION AND PRAYER
For the above and foregoing reasons, Tumlinson prays that the Court of
Appeal’s decision affirming the District Court’s Judgment to revoke his community
supervision be reversed and remanded, that the Judgment of the District Court be
vacated, and his community supervision be reinstated.
Respectfully submitted,
LAW OFFICES OF D. CRAIG HUGHES
/s/ D. CRAIG HUGHES
D. CRAIG HUGHES
State Bar No. 10211025
7322 Southwest Freeway, Suite 1100
Houston, Texas 77074
Tel - (713) 535-0683
Fax - (713) 981-3805
ATTORNEY FOR APPELLANT
CHARLES EDWARD TUMLINSON
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
I hereby certify that the above and foregoing brief complies with the
type-volume limitation of Tex. R. APP. P. 9.4(i) because it contains 2963 words,
excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).
This brief complies with the typeface requirements and the type style
requirements of TEX. R. APP. P. 9.4(e) because it has been produced on a computer
in conventional typeface using Times New Roman in 14 point font in the body of the
brief and Times New Roman 12 point font in the footnotes.
/s/ D. CRAIG HUGHES
D. CRAIG HUGHES
12
CERTIFICATE OF SERVICE
I hereby certify that on February 22, 2015, a true and correct copy of the above
and foregoing Appellant’s Petition for Discretionary Review was electronically filed
and electronically served on the Brazoria County Criminal District Attorney’s Office
and that on February 23, 2015, a true and correct copy of the above and foregoing
Petition of Discretionary Review was sent via U. S. Mail, postage prepaid, to the
State’s Prosecuting Attorney at P. O. Box 13046, Austin, Texas 78711-3046.
/s/ D. CRAIG HUGHES
D. CRAIG HUGHES
13
Opinion issued December 18, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00238-CR
———————————
CHARLES EDWARD TUMLINSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 50946
MEMORANDUM OPINION
Appellant, Charles Edward Tumlinson, obtained deferred adjudication on
charges of aggravated sexual assault of a child1 and of indecency with a child by
1
See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (2)(B) (Vernon Supp. 2014).
contact.2 The State filed a motion to adjudicate guilt on four grounds of violating
the terms of Appellant’s community supervision. Appellant pleaded not true to the
grounds. The trial court found three of the four grounds true, adjudicated
Appellant’s guilt, and assessed punishment at thirty years’ confinement and twenty
years’ confinement, respectively, to be served concurrently. In one issue,
Appellant argues the trial court abused its discretion by finding he violated the
named grounds of the terms of his community supervision.
We affirm.
Background
Appellant pleaded guilty to a charge of aggravated sexual assault of a child
and a charge of indecency with a child by contact. The trial court accepted
Appellant’s pleas and placed him on 10 year’s deferred adjudication in November
2007. One of the terms of Appellant’s community supervision concerned
participation in a sex offender treatment program. Specifically, Appellant was
required to
attend and participate in a sex offender treatment program . . . and
obey all rules, regulations and policies of the designated program until
successful completion and/or further orders of the court. Program
participation is defined as attendance at all meetings, prompt payment
of fees, acknowledgement of responsibility for the defendant’s
offenses, and progress toward responsible treatment goals.
2
See TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2011).
2
In its motion to adjudicate guilt, the State presented four grounds for determining
that Appellant had violated his community supervision requirements. In one of
those grounds, the State alleged that Appellant “failed to successfully participate in
sex offender treatment.”
At the hearing on the motion, H. John testified. John is a licensed sex
offender therapist. He works for O’Brien Counseling, which provides counseling
services to the Brazoria County Probation Department. John led the group therapy
session that Appellant first attended as part of his community supervision
requirements.
John testified that O’Brien Counseling’s sex offender therapy services are
based on four phases of treatment. Among other things, the first phase requires the
offender to acknowledge the specific acts committed. The second phase involves
the offender recognizing his thinking and behavior patterns and developing coping
responses. The third phase, known as the victim empathy phase, involves teaching
the offender to understand the perspective and feelings of the victim. In the last
phase, the offender develops mechanisms to prevent relapse and to function
independently of group counseling.
John informed the court that O’Brien Counseling typically expects offenders
to complete the first phase between six months to a year. Appellant took just under
two years. After that, Appellant completed the second phase in a shorter time
3
span. Once, he was in the third phase, however, Appellant reported details related
to his underlying offenses that he had not previously disclosed in his therapy.
Because he had not disclosed these details and incorporated them into his therapy,
the counselors at O’Brien Counseling decided Appellant would need to return to
the first phase of treatment to cover those additional details.
After he was returned to the first phase of treatment, Appellant became less
invested in participating in his group therapy sessions. Over time, Appellant’s
accounts of the events of the offending acts became more inconsistent. His
answers to questions became more tangential, indirect, and vague. Ultimately, the
decision was made to terminate Appellant from the therapy sessions. The decision
to move Appellant back to the first level and the decision to terminate Appellant
from the therapy sessions were not made by one individual. Instead, the decisions
were made by the clinical staff with consultation from the probation department to
which Appellant reported.
Appellant’s group therapy sessions were terminated on July 24, 2013. The
State filed a motion to adjudicate guilt on August 2, 2013. A hearing on the
motion was not held until March 14, 2014. Six weeks before the hearing,
Appellant joined another sex offender therapy group. The group was led by Dr. J.
S. Hickey. Dr. Hickey has a PhD in clinical psychology and is a sex offender
treatment provider. Dr. Hickey testified for Appellant at the hearing on the motion
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to adjudicate guilt. As a condition for participating in group sex abuse therapy, Dr.
Hickey required Appellant to receive individual therapy for other disorders he felt
Appellant had.3 Dr. Hickey testified that Appellant had been cooperative in five
out of the six therapy sessions Appellant had attended.
Adjudication of Guilt
In his sole issue, Appellant argues the trial court abused its discretion by
finding he violated the named grounds of the terms of his community supervision.
A. Standard of Review & Applicable Law
A trial court’s determination on a motion to adjudicate is reviewable in the
same manner as a determination of a motion to revoke community supervision.
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2014). A
revocation proceeding is neither criminal nor civil in nature; rather, it is an
administrative proceeding. Canseco v. State, 199 S.W.3d 437, 438 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d). At a revocation hearing, the State must prove
by a preponderance of the evidence that the defendant has violated a condition of
his community supervision. Id. at 438. The State satisfies its burden if the greater
weight of credible evidence creates a reasonable belief that the defendant violated a
condition of his probation as alleged by the State. Solis v. State, 589 S.W.2d 444,
3
John testified that he considered the possibility that Appellant had other
psychological disorders that were preventing him from progressing in his
treatment. John reviewed Appellant’s psychological examination results and
determined that Appellant did not indicate “any clinical psychopathology.”
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447 (Tex. Crim. App. 1979); Armstrong v. State, 82 S.W.3d 444, 448 (Tex. App.—
Austin 2002, pet. ref’d). Proof of a single violation is sufficient to support a
revocation. Canseco, 199 S.W.3d at 439.
Our review of an order adjudicating guilt and revoking community
supervision is limited to determining whether the trial court abused its discretion in
determining that the defendant violated the terms of his community supervision.
Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006); Duncan v.
State, 321 S.W.3d 53, 56–57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).
We view the evidence in the light most favorable to the trial court’s order.
Canseco, 199 S.W.3d at 439; Duncan, 321 S.W.3d at 57. As the trier of fact at a
revocation proceeding, the trial court determines the credibility of the witnesses
and the weight to be given to their testimony. Armstrong, 82 S.W.3d at 448.
B. Analysis
In its motion to adjudicate guilt, the State alleged that Appellant had violated
four terms of his requirements for community supervision. One of the claims that
the trial court found true was the claim that Appellant had failed to successfully
participate in sex offender treatment.
Under the terms of his community supervision, Appellant was required to
attend and participate in a sex offender treatment program . . . and
obey all rules, regulations and policies of the designated program until
successful completion and/or further orders of the court. Program
participation is defined as attendance at all meetings, prompt payment
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of fees, acknowledgement of responsibility for the defendant’s
offenses, and progress toward responsible treatment goals.
Appellant claims that the terms of his community supervision did not define what
successful participation meant. This is contradicted by the second sentence of this
term, which explicitly defines “program participation.” Appellant then asserts that
we should define successful participation to mean that Appellant attended the
meetings, promptly paid his fees, and acknowledged responsibility for his offense.
This definition excludes the written requirement that program participation
includes “progress toward responsible treatment goals.”
John testified that the goals of the group sex offender therapy sessions
include completing four phases of treatment. At a certain point in his therapy,
Appellant had completed the first two phases. But while Appellant was in the third
phase, Appellant identified previously undisclosed details of the offense that had
not been part of his existing treatment. As a result, Appellant had to return to the
first phase of treatment. After Appellant returned to the first phase of treatment,
his active involvement in the therapy sessions declined. When he did participate,
his answers to questions became more tangential, indirect, and vague. Ultimately,
the decision was made to terminate Appellant from the therapy sessions. The
decision to move Appellant back to the first level and the decision to terminate
Appellant from the therapy sessions were not made by one individual. Instead, the
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decisions were made by the clinical staff with consultation from the probation
department to which Appellant reported.
Appellant points out that Dr. Hickey testified that, at the time of the hearing,
Appellant was in a new group therapy program and had been cooperative in five
out of the six therapy sessions Appellant had attended. Appellant argues that this
shows that he did actively participate in a sex offender treatment program.
Appellant was removed from his original group therapy program in late July
2013. The State filed its motion to adjudicate guilt in early August 2013. At that
time, Appellant was not involved in any group therapy program, let alone
successfully participating in one. The simple fact that Appellant took steps to stop
violating this term of his community supervision six months after he began
violating it does not establish that no violation occurred. See Canseco, 199 S.W.3d
at 439 (holding proof of single violation is sufficient to support revocation).
The State’s burden of proof was by a preponderance of the evidence. Id. at
438. We review the trial court’s ruling for an abuse of discretion. Rickels, 202
S.W.3d at 763. We hold that Appellant has failed to establish that the trial court
abused its broad discretion by determining that Appellant violated this term of his
community supervision. Because this ground is sufficient to support the trial
court’s adjudication of guilt, we do not need to reach Appellant’s challenges to the
other grounds. See Canseco, 199 S.W.3d at 439; TEX. R. APP. P. 47.1 (requiring
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appellate courts to address every issue raised and necessary to final disposition of
the appeal).
We overrule Appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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