Ted Anthony Smith v. State ( 2013 )

NO. 12-12-00113-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
TED ANTHONY SMITH, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Ted Anthony Smith appeals the trial court’s order revoking his community supervision.
In one issue, Appellant argues that the evidence is insufficient to show that he violated one of the
terms of his community supervision agreement. We affirm.
BACKGROUND
A Smith County grand jury indicted Appellant for the felony offense of driving while
intoxicated alleged to have occurred on or about July 9, 2011.1 On December 9, 2011, Appellant
pleaded guilty and was placed on community supervision for a period of ten years. As a condition
of community supervision, Appellant was required to wear a Secure Continuous Remote Alcohol
Monitor (SCRAM unit or bracelet). On February 13, 2012, the State filed its first application to
revoke Appellant’s community supervision, alleging that Appellant tampered with the SCRAM
bracelet or associated equipment on or about January 30, 2012. Appellant pleaded “not true” to
the State’s tampering allegation.
1
See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b) (West Supp. 2012).
After a hearing on the State’s application to revoke, the trial court found that Appellant
tampered with the SCRAM unit, revoked his community supervision, and assessed a sentence of
imprisonment for ten years. This appeal followed.
REVOCATION OF COMMUNITY SUPERVISION
In his sole issue, Appellant argues that the evidence is insufficient to support revocation of
his community supervision.
Standard of Review
In a revocation of community supervision proceeding, the state must prove that the
defendant violated one of the conditions of his community supervision by a preponderance of the
evidence. Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013). The state satisfies
this standard when the greater weight of the credible evidence before the court, viewed in a light
most favorable to the ruling, creates a reasonable belief that a condition of community supervision
has been violated as alleged. See id. at 865; Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim.
App. 2006); Jones v. State, No. 12-11-00308-CR, 2012 WL 4502292, at *1 (Tex. App.—Tyler
Sept. 28, 2012, pet. ref’d) (mem. op., not designated for publication).
In determining whether the allegations contained in a revocation application are true, the
trial court is the sole trier of fact and sole judge of the credibility of the witnesses and the weight to
be given their testimony. Hacker, 389 S.W.3d at 865; Martinez v. State, 130 S.W.3d 95, 97 (Tex.
App.—El Paso 2003, no pet.) Accordingly, we review a trial court’s revocation of a defendant’s
community supervision for abuse of discretion. Hacker, 389 S.W.3d at 865; Rickels, 202 S.W.3d
at 763; Martinez, 130 S.W.3d at 97.
The Evidence
Appellant’s conditions of community supervision prohibited Appellant from attempting
“to remove, circumvent, or tamper with” the SCRAM bracelet or any of its associated equipment.
The SCRAM bracelet contains three sensors. One sensor measures the bracelet temperature to
detect possible tampers and removals. A second sensor, the infrared (IR) sensor, measures the
distance between the leg and the bracelet by using an infrared beam that is measured in volts,
which is referred to as the IR reading. When the bracelet is initially installed on an individual, a
baseline IR reading is established. Deviation from the baseline reading occurs when something is
2
placed between the bracelet and the leg. The third sensor measures the individual’s transdermal
alcohol concentration (TAC), which is an estimation of the individual’s blood alcohol
concentration.2
John O’Donnell installed the SCRAM bracelet on Appellant’s leg. Prior to the
installation, Appellant was given a contract and required to watch a video that explained how the
SCRAM technology operated. O’Donnell testified that he “went over the contract” and
“reiterate[d] everything” that was in it.
According to O’Donnell, Appellant was informed that the IR sensor measures the distance
between the leg and the bracelet, and if it deviates for an extended period of time, it “will show that
either something’s gotten in between [the leg and the sensor] or the bracelet’s too loose.”
O’Donnell testified that he “make[s] sure [to] reiterate that nothing’s to come in between the
bracelet [and the leg].” Appellant confirmed at the revocation hearing that he had received, read,
and understood the instructions relating to the SCRAM bracelet’s installation and maintenance.
Brad Burger, a field technician and custodian of records for the company servicing the
SCRAM bracelets, testified that if an object is placed between the SCRAM bracelet and the leg, an
accurate TAC cannot be taken. For example, if a sock is between the leg and the bracelet, the
alcohol sensor would read the TAC as zero because it would be taking the alcohol concentration of
the sock instead of the alcohol concentration of the leg. Burger also testified that when an object
is placed between the leg and the bracelet, the reading from the IR sensor increases “significantly.”
When the IR reading remains at an increased voltage for an extended period of time, it will register
as a “confirmed tamper” and a noncompliance report is generated.
The IR sensor detects tampers, which are categorized as obstructions, removals, cut straps,
and damage. O’Donnell testified that a tamper by obstruction began on January 30, 2012, at 9:17
p.m. and ended on January 31, 2012, at 10:11 a.m. The report generated from Appellant’s
SCRAM bracelet also showed that the TAC reading measured zero while the IR reading increased
during this time period. Other testimony confirmed, however, that an obstruction type of tamper
would trigger a report regardless of whether the obstruction was intentional. Thus, a sock, pajama
pant, or bed sheet accidentally caught between the leg and bracelet could cause an obstruction that
2
Our explanation of the SCRAM technology is derived from testimony of State’s witnesses, State’s Exhibit
2, and Defendant’s Exhibit 1.
3
would be classified as a “confirmed tamper” if it lasted for an extended period of time. Neither of
the State’s witnesses could testify as to what action by Appellant caused the bracelet to register the
tamper by obstruction.
Appellant and his girlfriend both testified at the revocation hearing. Each testified that
Appellant was in the Smith County Jail until 4:58 a.m. on January 30, 2012, because he was
required to serve ten days in jail as a condition of his community supervision. Appellant’s
girlfriend met him at approximately 10:00 that morning to take him to her house, where he stayed
while she was at work. Appellant had no mode of transportation, and Appellant’s girlfriend drove
him home that evening. They arrived at approximately 8:45 p.m. on January 30, 2012.3
Appellant testified that after he returned home, he “downloaded” the monitor, “nibbled” on
some food, took a shower, watched television, and fell asleep. Appellant testified that he slept
until about 9:00 a.m. on January 31, 2012, and that he was required to be at work at eleven that
morning. When asked whether he “put anything down in there to block” the bracelet, Appellant
responded, “No, I did not. . . . I don’t leave anything in between the monitor and my leg, no.”
On cross-examination, Appellant testified that he wears a wristband just above his ankle
when he goes to bed to prevent the bracelet from hitting his ankle bone. He also said he wears the
wristband every night and wears long pajama pants during the winter. On the morning of January
31, Appellant did not notice anything unusual about the SCRAM bracelet. He was notified two
days later that the bracelet had registered a confirmed tamper. Appellant testified that he went to
O’Donnell to check the bracelet “[b]ecause I couldn’t believe that they had a confirmed tamper on
me. I mean, I was stunned because in my mind, you know—I know if I do any alcohol or mess
with this leg monitor, I have—I have—I could go to prison.”4 Appellant testified that O’Donnell
checked the bracelet’s fitting and stated that it was “a little loose.” Nothing else was done to
determine whether the bracelet was “working properly.”
3
Appellant’s girlfriend testified that Appellant had not consumed any alcohol that day because she does not
keep alcohol in her home. But she also confirmed that she had no personal knowledge of whether Appellant
consumed alcohol between 9:00 p.m. on January 30 and 10:00 a.m. on January 31.
4
Appellant was asked, “[W]hat does tamper mean to you?” He answered, “Tamper meaning that I had tried
to tear it up or I, you know, take it off or cut it in a way that, you know, to try to—tamper, like, you know, tear it up or
break it or—to me, that’s what it means.”
4
The Trial Court’s Ruling
Appellant’s challenge to the sufficiency of the evidence is based on the premise that his
definition of “tamper” did not include causing an obstruction that would prevent the bracelet from
taking an accurate TAC reading. But Appellant’s definition of “tamper” does not negate the fact
that he had been informed multiple times that nothing was to come between the SCRAM bracelet
and his leg, and that he would be violating a condition of community supervision if he attempted to
remove, circumvent, or tamper with the bracelet. The evidence showed that something caused the
IR reading to increase significantly and remain at a heightened level for a twelve-hour period while
the TAC reading remained at zero. The fact that the State could not identify Appellant’s specific
act to cause the obstruction type of tamper does not render its proof insufficient.
It is evident from the record that there were four possible causes of the confirmed tamper:
(1) Appellant accidentally caused an obstruction to last for more than twelve consecutive hours,
(2) Appellant took some action that he believed was not tampering that caused an obstruction to
last for more than twelve consecutive hours, (3) the SCRAM bracelet malfunctioned, 5 or (4)
Appellant intentionally caused the obstruction between his leg and the SCRAM bracelet.
Appellant testified that he did not leave anything between his leg and the bracelet on the night of
January 30. However, the credibility of witnesses in a revocation hearing is solely determined by
the trial court. See Hacker, 389 S.W.3d at 865; Martinez, 130 S.W.3d at 97. In this case, the
trial court resolved the credibility issue against Appellant.
After viewing the evidence in the light most favorable to the ruling, we conclude that it was
reasonable for the trial court to believe that a condition of Appellant’s community supervision was
violated as alleged in the State’s application. See Hacker, 389 S.W.3d at 865; Rickels, 202
S.W.3d at 764. Therefore, the trial court did not abuse its discretion in revoking Appellant’s
community supervision. See id. at 764; Martinez, 130 S.W.3d at 97-98. Accordingly, we
overrule Appellant’s sole issue.
5
Appellant labeled the generated report as having a “faulty reading,” but this is not the same as a
malfunction. Here, testimony revealed that when the IR voltage increases due to an obstruction, the TAC reading is
inaccurate because it is taking the alcohol concentration of the obstruction and not of the leg.
5
DISPOSITION
Having overruled Appellant’s sole issue on appeal, we affirm the judgment of the trial
court.
BRIAN HOYLE
Justice
Opinion delivered June 5, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
6
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 5, 2013
NO. 12-12-00113-CR
TED ANTHONY SMITH,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th Judicial District Court
of Smith County, Texas. (Tr.Ct.No. 114-1270-11)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed; and that this decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
7