Anthony Wayne Hacker v. State ( 2012 )

Affirmed as Modified and Memorandum Opinion filed February 16, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00146-CR
ANTHONY WAYNE HACKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1278073
MEMORANDUM OPINION
In two issues, appellant, Anthony Wayne Hacker, contends (1) the evidence is
insufficient to support the trial court’s adjudication of his guilt and (2) the trial court’s
judgment should be modified. We modify the judgment and affirm as modified.
I. BACKGROUND
In 2010, appellant pleaded ―guilty‖ to aggravated assault of a family member, his
wife, and was placed on deferred-adjudication community supervision for a two-year
period. One month later, the State filed a motion to adjudicate, alleging appellant
violated the terms of his community supervision by having contact with his wife. The
trial court found that appellant engaged in prohibited contact with his wife, adjudicated
guilt, and sentenced appellant to four years’ imprisonment.
II. ADJUDICATION OF GUILT
In his first issue, appellant contends the evidence is insufficient to support
adjudication of guilt based on his alleged probation violation.
A. Standard of Review
The trial court’s decision to adjudicate guilt on the original charge ―is reviewable
in the same manner as a revocation hearing conducted under Section 21 of this article
[revocation of community supervision] in a case in which an adjudication of guilt had not
been deferred.‖ Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2011).
Accordingly, we review the trial court’s order for abuse of discretion. See Forrest v.
State, 805 S.W.2d 462, 464 & n.2 (Tex. Crim. App. 1991).
The trial court’s order must be supported by a preponderance of the evidence.
Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). The State has the burden of
proving the alleged violations. Id. Violation of a single condition of community
supervision will support the trial court’s decision to adjudicate guilt. Moore v. State, 605
S.W.2d 924, 926 (Tex. Crim. App. 1980).
We consider the evidence presented, and indulge all reasonable inferences arising
from the evidence, in the light most favorable to the trial court’s decision. Garrett v.
State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Reasor v. State, 281
S.W.3d 129, 131 (Tex. App.—San Antonio 2008, pet. ref’d). The trial court is the sole
fact finder and exclusive judge of witness credibility and weight to be given testimony.
Garrett, 619 S.W.2d at 174. The trial court resolves conflicts in the evidence and may
choose to believe or disbelieve any or all of a witness’s testimony. Farmer v. State, 475
S.W.2d 753, 754 (Tex. Crim. App. 1972); McCullough v. State, 710 S.W.2d 142, 145
(Tex. App.—Houston [14th Dist.] 1986, pet. ref’d).
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B. Analysis
In its motion to adjudicate guilt, the State alleged that appellant violated the
following condition of his community supervision: ―You are not to contact the
complainant, [appellant’s wife], in person, in writing, by telephone, via the internet, a
third party or [by] any other means for any reason except as specifically permitted by the
Court. YOU MAY SPEAK TO HER VIA TELEPHONE ONLY FOR THE PURPOSE
OF CHILD CUSTODY ISSUES.‖
On December 2, 2010, appellant was released from jail, and community
supervision was initiated. Appellant’s probation officer, Jennifer Turner, provided the
following testimony regarding appellant’s conduct. On December 15, 2010, appellant
completed documentation pertaining to his community supervision. Appellant initially
noted on the forms that he was residing at his wife’s residence but ―crossed out‖ the
address and wrote his brother’s address. On January 3, 2011, appellant met with Officer
Turner and relayed the following:
[appellant] has not physically seen his wife, he talked to her on a daily basis
about his children, who would pick them up from school and they would
arrange a time for him to pick the children up at school and then bring them
home. At that point he would stay with them at his wife’s residence until
she would call him and say, I’m on my way home, then he would leave at
that time.
Additionally, appellant informed Officer Turner that (1) he kept only a change of clothes
and a toothbrush at his brother’s residence and his other belongings were at his wife’s
residence, (2) since being released from jail on December 2, he had been staying at his
wife’s residence while she was at work, and (3) he had occasionally spent the night at his
wife’s residence when she worked a night shift. However, Officer Turner admitted that
she did not know whether appellant was ever at his wife’s residence when his wife was
present.
Appellant and his wife testified that during the term of community supervision,
they never had physical contact and spoke by telephone regarding only child care issues.
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Contrary to the probation officer’s testimony, appellant and his wife testified that half of
appellant’s belongings had been moved to his brother’s residence. They also denied that
appellant visited his wife’s residence at any time between December 2 and December 23.
Additionally, appellant explained that he initially listed his wife’s residence on the
probation paperwork out of ―force of habit,‖ not because he actually lived there.
The trial court concluded the evidence supported that appellant violated the terms
of his community supervision. Specifically, the court commented,
My order to [appellant] was only concerning child custody and it was
restricted very closely to that because I was concerned that in this
circumstance [appellant] would immediately step back into the role, and I
think the evidence does show that he violated the terms by continual phone
conversations on everything and violation of my direct order to him.
In addition to, although it’s not an alleged violation of protective
order that also goes to the credibility of where he was living, he told the
officer that he had only one change of clothes. You don’t live where you
have one change of clothes.
We conclude the evidence is sufficient to support a finding that appellant engaged
in prohibited contact with his wife. At the conclusion of the hearing, the trial court
expressly noted that it resolved conflicts in the testimony in the probation officer’s favor.
See Farmer, 475 S.W.2d at 754. The fact appellant kept most of his belongings at his
wife’s residence and initially listed her residence as his own supports a finding that he
had been living there. Additionally, the evidence supports a finding that appellant and his
wife were attempting to conceal evidence. Specifically, although appellant told Officer
Turner that he began visiting his wife’s residence on December 2 and most of his
belongings remained there, appellant and his wife testified that half of his belongings had
been moved to his brother’s residence and he did not visit his wife’s residence until
December 23. Considering this evidence in the light most favorable to the trial court’s
ruling, we conclude the trial court could have reasonably concluded appellant had been
living at his wife’s residence for some duration while on community supervision. Having
found that appellant was living at his wife’s residence, the trial court could have
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reasonably concluded appellant was in prohibited physical contact with his wife. In other
words, because appellant was living in the same residence as his wife, it is reasonable to
infer they came into contact with each other. Accordingly, we hold the trial court did not
err by adjudicating guilt on appellant’s original charge. See Forrest, 805 S.W.2d at 464.
Appellant’s first issue is overruled.
In his second issue, appellant requests that we modify the trial court’s judgment
because the trial court incorrectly noted (1) appellant pleaded ―true‖ to the allegations
raised by the State in its motion to adjudicate guilt and (2) a plea bargain existed. We
have the authority to modify a trial court’s judgment and affirm it as modified. Tex. R.
App. P. 43.2(b); Storr v. State, 126 S.W.3d 647, 654–55 (Tex. App.—Houston [14th
Dist.] 2004, pet. ref’d).
The record reflects, and the State agrees, that appellant pleaded ―not true‖ to the
allegations in the State’s motion to adjudicate guilt. Additionally, the record
demonstrates there was no plea bargain relative to the State’s motion because (1) the trial
court noted on the certificate of appealability that this is ―not a plea-bargain case‖ and (2)
the prosecutor argued at the hearing, ―State’s offer in this case had been for four years
and after hearing [appellant] testify, I would ask for even more than that.‖ Accordingly,
we modify the judgment to reflect (1) ―Not True‖ in that portion of the judgment entitled
―Plea to Motion to Adjudicate‖ and (2) ―None‖ in that portion of the judgment entitled
―Terms of Plea Bargain.‖ We affirm the judgment as modified.
/s/ Charles W. Seymore
Justice
Panel consists of Justices Frost, Seymore, and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).
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