Eric Justin Dobbs v. State ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00198-CR
______________________________
ERIC JUSTIN DOBBS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court
Lamar County, Texas
Trial Court No. 22495
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Less than a year after Eric Justin Dobbs had pled guilty and had been placed on community
supervision1 for theft of copper wire cable worth less than $20,000.00, the State moved to revoke
Dobbs’ community supervision, alleging thirteen violations, including drinking alcohol. Dobbs
pled ―not true‖ to all allegations.
From the trial court’s revocation order—which revoked Dobbs’ community supervision
and ordered Dobbs confined in the Texas Department of Criminal Justice, State Jail Division, for
two years—Dobbs appeals, raising seven points of error, but structuring his argument to focus on
each alleged violation serially rather than to fit the appropriate arguments under each point of
error. Dobbs argues that the evidence is legally and factually insufficient to establish various
violations of his community supervision, that he was unable to comply with some of the conditions
of his community supervision, that some of his conditions were so vague and indefinite as to be
unenforceable, that there was lack of proof that Dobbs was able to pay the court-ordered fees and
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The relevant terms of Dobbs’ community supervision required him to do a number of things:
(1) report in person to his community supervision officer every month and submit a monthly report
form,
(2) avoid using any controlled substance or dangerous drug or alcoholic beverage,
(3) complete 300 hours of community service at a rate of no less than ten hours per month,
(4) pay $60.00 per month in community supervision fees,
(5) pay court costs of $246.00 at a rate of $8.00 per month until paid,
(6) pay attorney’s fees of $350.00 at a rate of $10.00 per month until paid,
(7) pay fines in the amount of $500.00 at a rate of $15.00 per month until paid,
(8) pay restitution in the amount of $950.00 at a rate of $30.00 per month until paid,
(9) pay the crime stoppers fee of $50.00 by August of 2008,
(10) attend a personal development seminar, and
(11) attend the Freedom of Choice Program.
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costs, and that he was denied his constitutional right to liberty because of his poverty in that his
community supervision was revoked when he failed to make the ordered payments.
We affirm the trial court’s judgment because, at a minimum, (1) Dobbs’ use of alcoholic
beverages was established, (2) the conditions of community supervision did not condition
revocation on proof that the alcoholic beverages Dobbs consumed were dangerous, and (3) the
alcohol prohibition’s alleged vagueness is not cognizable on this appeal. We need not reach the
other arguments, because they are irrelevant in light of our holdings with regard to the
alcoholic-beverage violation.
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); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a community
supervision revocation hearing, although the decision whether to revoke rests within the discretion
of the trial court, its discretion is not absolute. Wester v. State, 542 S.W.2d 403, 405 (Tex. Crim.
App. 1976); Scamardo v. State, 517 S.W.2d 293, 297 (Tex. Crim. App. 1974). The trial court is
not authorized to revoke community supervision without a showing, by a preponderance of the
evidence, that the defendant has violated a condition of the community supervision imposed by the
court. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987); Cardona, 665 S.W.2d at
493.
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(1) Dobbs’ Use of Alcoholic Beverages Was Established
Dobbs contends that the evidence supporting the revocation of his community supervision
is legally and factually insufficient as to the alcohol violation. We disagree.
In determining questions regarding sufficiency of the evidence in community supervision
revocation cases, the State must prove, by a preponderance of the evidence, that the defendant
violated a term of his or her community supervision. Rickels, 202 S.W.3d at 763. A
preponderance of the evidence exists when the greater weight of the credible evidence creates a
reasonable belief that the defendant has violated a condition of his or her community supervision.
Id. at 763–64; Scamardo, 517 S.W.2d at 298.
In a community supervision revocation hearing, the trial court is the sole trier of fact.
Jones v. State, 787 S.W.2d 96, 97 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). The trial
court also determines the credibility of the witnesses and the weight to be given their testimony.
Id. It may accept or reject any or all of the witnesses’ testimony. Mattias v. State, 731 S.W.2d
936, 940 (Tex. Crim. App. 1987). Therefore, we will examine the evidence in the light most
favorable to the trial court’s order revoking community supervision. See Jackson v. State, 645
S.W.2d 303, 305 (Tex. Crim. App. 1983). Any other type of review would effectively undermine
the trial court’s discretion.
When the State’s proof of any one of the alleged violations of community supervision is
sufficient to support a revocation of community supervision, the revocation should be affirmed.
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TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21 (Vernon Supp. 2009) (State must prove every
element of at least one ground for revocation by preponderance of evidence); Moore v. State, 605
S.W.2d 924, 926 (Tex. Crim. App. 1980); Stevens v. State, 900 S.W.2d 348, 351 (Tex.
App.—Texarkana 1995, pet. ref’d). Therefore, we need to find only one instance in which the
State proved by a preponderance of the evidence that the terms of community supervision were
violated. Since we must find only one sufficiently proven violation, we will discuss only one.
Here, the State alleged, among many other things, that Dobbs violated a term of his
community supervision by consuming alcohol. Under the terms of his community supervision,
Dobbs was to ―avoid the use of any controlled substance or dangerous drug or alcoholic beverage.‖
Michelle Vaughn, a community supervision officer for Lamar County, testified that Dobbs
admitted to drinking ―one or two beers on a daily basis.‖ When asked whether Dobbs drinks beer,
Deanna Dobbs, Dobbs’ wife, first answered ―no, sir,‖ but then admitted that ―he has.‖
In a hearing to revoke community supervision, the trial court, as the fact-finder, is the
exclusive judge of the witnesses’ credibility and the testimony’s weight. Garrett v. State, 619
S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). Therefore, the trial court was free to accept
the testimony of Vaughn and reject that of Deanna Dobbs. See id. Thus, the trial court
reasonably could have found by a preponderance of the evidence that Dobbs consumed an
alcoholic beverage and thereby violated condition thirteen of his community supervision as
alleged in the State’s motion to revoke. Thus, the trial court did not abuse its discretion in
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revoking Dobbs’ community supervision.
(2) The Conditions of Community Supervision Did Not Condition Revocation on Proof that the
Alcoholic Beverages Dobbs Consumed Were Dangerous
In a single sentence in his brief, Dobbs suggests that the conditions of his community
supervision may prohibit consumption, not of any alcoholic beverage, but only a dangerous
alcoholic beverage. We disagree.
Condition thirteen of Dobbs’ community supervision required Dobbs to ―avoid the use of
any controlled substance or dangerous drug or alcoholic beverage.‖ While the language could
have been clearer, we find nothing in the language suggesting that the prohibition as to alcoholic
beverages covers only those that are dangerous. In the applicable phrase, there are three nouns,
each separately modified by a single adjective. Dobbs must have avoided use of any controlled
substance, not any substances at all; any dangerous drugs, not any drugs at all; and any alcoholic
beverages, not any beverages at all. If one argues that the adjective ―dangerous‖ was also
intended to modify, not only ―drugs,‖ but also ―beverages,‖ one could also equally suggest that the
earlier adjective ―controlled‖ would apply, not only to ―substances,‖ but also to both ―drugs‖ and
―beverages.‖ Thus, if the phrase is to be read to prohibit ―the use of any controlled substance or
dangerous drug or dangerous alcoholic beverage,‖ there is no reason not to follow that logic out
further and suggest that it really prohibits ―the use of any controlled substance or controlled
dangerous drug or controlled dangerous alcoholic beverage.‖ We reject that notion, in favor of
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reading the phrase in the form presented, that is, to prohibit use of three things, controlled
substances, dangerous drugs, or alcoholic beverages.
(3) The Alcohol Prohibition’s Alleged Vagueness Is Not Cognizable on this Appeal
In response to the State’s allegation that Dobbs violated his community supervision by
drinking alcohol, Dobbs argues that the prohibition from drinking alcohol is ―so vague and
indefinite as not to inform [Dobbs] of what he was to do, so as to be unenforceable.‖ This
challenge should have been raised by a timely appeal after Dobbs was placed on community
supervision, not after his community supervision was revoked. See TEX. CODE CRIM. PROC. ANN.
art. 42.12, § 23(b) (Vernon Supp. 2009); In re V.A., 140 S.W.3d 858, 860 (Tex. App.—Fort Worth
2004, no pet.); Anthony v. State, 962 S.W.2d 242, 246 (Tex. App.—Fort Worth 1998, no pet.).
Because Dobbs’ argument on that point was not timely appealed, we lack jurisdiction to address it
now.
We affirm the trial court’s revocation of Dobbs’ community supervision.
Josh R. Morriss, III
Chief Justice
Date Submitted: April 13, 2010
Date Decided: April 14, 2010
Do Not Publish
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