Shondel Sundwall v. State ( 2014 )

Opinion filed March 14, 2014
In The
Eleventh Court of Appeals
__________
No. 11-12-00141-CR
__________
SHONDEL SUNDWALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause No. C-38,920
MEMORANDUM OPINION
Originally, Shondel Sundwall pleaded guilty to possession of a controlled
substance, methamphetamine, of less than one gram. In accordance with a plea
bargain agreement, the trial court deferred the adjudication of her guilt and placed
her on community supervision for three years. Subsequently, the trial court
revoked Sundwall’s community supervision, found her guilty of possession of less
than one gram of methamphetamine, and assessed her punishment at confinement
in a state jail facility for nineteen months. We affirm.
Less than one year after the trial court had placed Appellant on community
supervision, the State filed a motion to revoke her community supervision and to
adjudicate her guilt. The State later amended its motion to include an additional
ground. In the amended motion, the State alleged that Appellant had violated five
conditions of her community supervision. It alleged that Appellant had committed
the offense of possession of methamphetamine; failed to report as directed on at
least three occasions; failed to pay monthly fees on at least five occasions; failed to
perform community services as directed; and failed to submit to and successfully
complete drug and alcohol evaluation, counseling, or treatment as directed.
Appellant entered a plea of true to the allegation that she had failed to pay fees for
certain months but not others. She pleaded “not true” to the other four allegations.
The trial court found that the allegation as to the methamphetamine possession was
not true. It found that the remaining allegations were true.
In her first point, Appellant challenges the sufficiency of the evidence to
support each of the four grounds for revocation that were found to be true. Proof
by a preponderance of the evidence of any one of the alleged violations of the
conditions of community supervision is sufficient to support a trial court’s
revocation order. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel
Op.] 1980); Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.—Eastland 2008,
pet. ref’d). We review a trial court’s decision to adjudicate guilt in the same
manner that we review a decision to revoke community supervision that was
imposed after a finding of guilt. The trial court is the exclusive judge of the
credibility of witnesses and the weight to be given their testimony and determines
if the allegations in the motion to revoke are sufficiently demonstrated. Cardona v.
State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). Because of the unique nature
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of a revocation hearing and the trial court’s broad discretion in this context, the
general sufficiency standards do not apply. Antwine, 268 S.W.3d at 636–37. We
review a trial court’s decision to revoke community supervision for an abuse of
discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).
The trial court found that Appellant had violated, among other things, the
condition that required her to report as directed to the community supervision
officer. Appellant’s argument as to this ground is twofold. She first argues that
the State must show both that she violated a condition and that such a violation was
willful and then contends that the State failed “to prove that she had the ability to
report.” Appellant cites no authority for the proposition that the failure to report
must be willful. While it is true that the trial court must consider the defendant’s
ability to pay before revoking supervision for the failure to pay certain fees, see
Gipson v. State, 383 S.W.3d 152, 157 (Tex. Crim. App. 2012), we find no
authority for a similar requirement when the accused claims that she was unable to
report.
Appellant’s community supervision officer, April Lollar, testified that
Appellant was required to report to her twice each month. Lollar testified that
Appellant failed to report a second time in November 2011 and failed to report at
all in December 2011. Appellant admitted that she did not report in December
2011, in January 2012, or in February 2012. Appellant had several excuses for
why she could not report. Appellant claimed that she had an abscessed tooth, that
she had been bitten by a brown recluse spider, and that her grandmother had died.
Lollar spoke with Appellant over the phone on December 22, 2011, and told her to
report by the end of the day, but Appellant did not comply.
Based on the record, we must conclude that the State met its burden of
proving by a preponderance of the evidence that Appellant failed to report as
ordered by her supervision officer. Here, the evidence of Appellant’s failure to
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report is sufficient to support the trial court’s decision to revoke community
supervision. See Moore, 605 S.W.2d at 926. After reviewing the evidence, we
conclude that the trial court did not abuse its discretion when it revoked
Appellant’s community supervision. Appellant’s first point is overruled.
In her second point, Appellant seems to contend that the trial court should
have extended her term of supervision and allowed her additional time to satisfy
the conditions because the violations that the trial court found true “were of
administrative requirements and personal improvement,” because “[s]he testified to
several personal issues that prevented her from fulfilling requirements as of this
date,” and because this was the “first motion to revoke/adjudicate.”
Trial courts possess broad discretion over defendants who are placed on
community supervision, and this includes the discretion to modify, revoke, or
continue the community supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12
(West Supp. 2013); Ex parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App.
1986). Due process requires a neutral and detached judge who considers the full
range of punishment and the evidence presented. Gagnon v. Scarpelli, 411 U.S.
778, 786 (1973).
A trial court that assesses a predetermined sentence deprives an accused of
the right to due process by failing to consider the full range of evidence. See
Howard v. State, 830 S.W.2d 785, 788 (Tex. App.—San Antonio 1992, pet. ref’d).
In Howard, the trial court promised to assess the maximum sentence if the
defendant failed to comply with the terms of probation, and it did. Id. On appeal,
the court held that this violated the defendant’s right to due process. Id. In
Early v. State, the trial court did not promise a certain sentence but threatened to
assess punishment at the top of the range if the defendant violated his probation
conditions. 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi 1993), pet. dism’d,
improvidently granted, 872 S.W.2d 758 (Tex. Crim. App. 1994). Upon revocation,
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the judge’s comments that he wished the defendant had committed a first-degree
felony instead of a third-degree felony “because I would like to give you life”
showed that the judge decided the case before listening to the evidence. Id. at 262–
63.
In this case, we cannot find any evidence to indicate that the trial court
predetermined Appellant’s sentence or that it failed to consider the evidence
presented or the full range of punishment. The State alleged that Appellant had
violated five separate conditions of community supervision. After finding four of
those allegations true, the trial court adjudicated her guilt for the original offense of
possession of methamphetamine. And, as discussed above, the evidence supported
the trial court’s decision to revoke. Before it assessed punishment, the trial court
allowed Appellant to make a statement. Appellant was convicted of a state jail
felony, and the trial court’s sentence was within the allowable range. See TEX.
PENAL CODE ANN. § 12.35(a) (West Supp. 2013).
Appellant argues that, if the court had “considered all of the evidence which
[it] found ‘True’, common sense indicates that the sentence imposed was too high
for the violations in a first motion,” but we disagree. There is absolutely no
evidence that the trial court made any comments indicating a predetermined
sentence or that it failed to consider all of the evidence presented at the hearing.
Appellant’s second point is overruled.
We affirm the judgment of the trial court.
March 14, 2014 JIM R. WRIGHT
Do not publish. See TEX. R. APP. P. 47.2(b). CHIEF JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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