Allen Graves, Jr. v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 7-13-00105-CR
________________________
ALLEN GRAVES, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 46th District Court
Wilbarger County, Texas
Trial Court No. 11,634; Honorable Dan Mike Bird, Presiding
June 13, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
In May 2012, following an open plea of guilty to the offense of assault against a
family member by occlusion,1 Appellant, Allen Graves, Jr., entered into a plea bargain
whereby he was sentenced by the trial court to seven years confinement, suspended for
five years, and assessed a $1,000 fine. The trial court issued its Judgment of
1
See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2013). As alleged in the indictment of this
cause, the offense was a second degree felony. Id. at § 22.01(b-1)(3) (West Supp. 2013).
Conviction incorporating by reference the conditions of his community supervision
which, among other things, required that Appellant not commit any offense against the
laws of this State or any other State of the United States (Condition No. 3) and pay his
fine, court costs and monthly probation service fee (Condition No. 6).
In March 2013, the State filed its Motion to Revoke Probation alleging Appellant
committed five new criminal offenses and failed to pay his fine, court costs and monthly
probation service fee. At the hearing on the State’s motion, the State proceeded on
only two violations of Condition No. 3 and the violation of Condition No. 6. The two
violations of Condition No. 3 the State proceeded on alleged Appellant: (1) assaulted a
prior girlfriend and (2) committed the offense of criminal mischief by damaging a pair of
window screens. Appellant plead “not true” to the violations of Condition No. 3 and
“true” to the violation of Condition No. 6.2 At the conclusion of that hearing, the trial
court found Appellant violated the terms of community supervision,3 revoked the prior
order suspending imposition of sentence, and imposed the original sentence of seven
years confinement. The trial court also ordered Appellant to pay his court-appointed
attorney’s fees of $400. On appeal, Appellant asserts (1) there was insufficient
evidence of an assault to require revocation and (2) the trial court erred in revoking his
community supervision for non-payment because the uncontroverted facts established
he had an inability to pay. We modify the trial court’s judgment to delete the order that
Appellant pay $400 in court-appointed attorney’s fees and affirm as modified.
2
Notwithstanding his plea of true to the violation of Condition No. 6, Appellant did contest his
financial ability to pay his fine, court costs and supervision fees.
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The trial court found the allegations of the assault and the non-payment to be true; however, the
court found the allegations of criminal mischief to be not true.
2
STANDARD OF REVIEW
Our review of an order revoking community supervision is limited to determining
whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763
(Tex. Crim. App. 2006) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.
1984)). In an adjudication hearing, the State must prove by a preponderance of the
evidence that the defendant violated the terms of community supervision. Id. at 763-64;
Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.—Eastland 2008, pet. ref’d). A
preponderance of the evidence means “that greater weight of the credible evidence
which would create a reasonable belief that the defendant has violated a condition of his
probation.” Rickels, 202 S.W.3d at 763–64. In determining the sufficiency of the
evidence to sustain a revocation, we view the evidence in the light most favorable to the
trial court’s ruling, Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Jones
v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979), while recognizing that “[t]he trial
court is the sole judge of the credibility of witnesses and the weight to be given their
testimony.” Antwine 268 S.W.3d at 636. Given the unique nature of a revocation
hearing and the trial court’s broad discretion in the proceedings, the general standards
for reviewing sufficiency of the evidence do not apply. Pierce v. State, 113 S.W.3d 431,
436 (Tex. App.—Texarkana 2003, pet. ref’d). When the standard of review is abuse of
discretion, the record must simply contain some credible evidence to support the trial
court’s decision. Herald v. State, 67 S.W.3d 292, 293 (Tex. App.—Amarillo 2001, no
pet.). Finally, we note that a single violation of community supervision is sufficient to
support revocation. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(b) (West 2012). See
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Antwine, 268 S.W.3d at 636 (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.
App. 1980)).
ANALYSIS
ISSUE ONE
At the revocation hearing, Emily Taylor testified she was Appellant’s former
girlfriend. She testified they lived together for a time and had a child. She further
testified that on December 24, 2012, Appellant came to her house in violation of a court
order, struck her in the face and pushed her against a pickup truck. Immediately
thereafter, her face swelled red in color, and her back hurt. Jason Vandergriff, Chief of
Police of the City of Chillicothe, corroborated Taylor’s account of her injuries with
photographs taken shortly after the incident and opined that the knot of swelling on her
back was consistent with some type of blunt force trauma. Appellant testified the event
never took place.
Appellant’s account of events on December 24, 2012, clearly conflicts with the
testimony of Taylor and Vandergriff. However, the trial court is the sole judge of the
credibility of their testimony and judging from the revocation order, chose to believe
Taylor and Vandergriff over Appellant. See Antwine, 268 S.W.3d at 636. Viewing the
evidence in the light most favorable to the trial court’s ruling, we cannot say the trial
court abused its discretion in finding Appellant violated Condition No. 3 of the terms and
conditions of his community supervision. Appellant’s first issue is overruled, and his
second issue is pretermitted. TEX. R. APP. P. 47.3.
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COURT-APPOINTED ATTORNEY’S FEES
We also note an issue not raised by Appellant regarding the assessment of $400
in court-appointed attorney fees in the trial court’s Judgment Revoking Community
Supervision, i.e., “Court Costs - $354.00 PLUS LEGAL FEES.” An attached form filed
by Appellant’s court-appointed attorney at the revocation hearing shows a claim for
$400 in fees. In order to assess attorney’s fees, the trial court must first determine that
the defendant has financial resources that enable him to offset in part or in whole the
cost of legal fees provided, TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (W EST SUPP.
2012), and the record must reflect some factual basis to support the determination that
the defendant is capable of paying attorney’s fees. Barrera v. State, 291 S.W.3d 515,
518 (Tex. App.—Amarillo 2009, no pet.) (per curiam); Perez v. State, 280 S.W.3d 886,
887 (Tex. App.—Amarillo 2009, no pet.).
The judgment requires Appellant pay court costs and attorney’s fees. The clerk’s
record and hearing transcript reflect, however, the trial court found Appellant indigent
and unable to afford the cost of legal representation in the trial court proceedings and
on appeal. It does not appear the trial court made a determination Appellant had
financial resources enabling him to pay all or any part of the fees paid his court-
appointed counsel, and we are unable to see any evidence to support such a
determination. Accordingly, we conclude the order to pay attorney’s fees was improper
because the evidence was legally insufficient to support a finding Appellant had the
financial resources to pay attorney’s fees. See Mayer v. State, 309 S.W.3d 552, 556-57
(Tex. Crim. App. 2010). Accordingly, we modify the judgment to delete the requirement
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that Appellant pay court-appointed attorney’s fees. See Wolfe v. State, 377 S.W.3d
141, 146 (Tex. App.—Amarillo 2012, no pet.).
CONCLUSION
We modify the trial court’s judgment to delete the order to pay court-appointed
attorney’s fees and affirm the judgment as modified.
Patrick A. Pirtle
Justice
Do not publish.
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