Sam Booker, Jr. v. State ( 2010 )

NO. 07-10-0023-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
DECEMBER 2, 2010
______________________________
SAM BOOKER, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_______________________________
FROM THE CRIMINAL DISTRICT COURT NUMBER ONE OF TARRANT COUNTY;
NO. 0922782D; HON. SHAREN WILSON, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.1
In this appeal, appellant Sam Booker, Jr. seeks reversal of the trial court’s action
in revoking his deferred adjudication probation, adjudging him guilty of the offense of
failing to register as a sex offender, and assessing his punishment at three years
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John T. Boyd, Senior Justice, sitting by assignment.
confinement in the Institutional Division of the Texas Department of Criminal Justice.
Disagreeing that the record shows reversible error, we affirm the judgment of the trial
court.
In submitting his appeal, appellant presents two issues which, he contends,
demonstrate the trial court reversibly erred in its decision. In his first issue, he argues
that there was insufficient evidence to show that he failed to timely pay his required
supervision fees or that he failed to complete the required one-third of his sex offender
treatment within the first year of his probation. In his second issue, he contends that the
trial court erred in modifying and changing his conditions of probation by adding the
condition that he “successfully complete psychological counseling, treatment, and
aftercare sessions for sex offenders” almost four years after he was initially placed on
probation.
The standard by which we review a trial court’s revocation of probation is well
established. The order revoking probation is reviewed under an abuse of discretion
standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006), quoting
Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In further clarification,
the Rickels court instructs that in probation revocation cases such as the instant one in
which the sufficiency of the evidence is questioned, the burden of proof to sustain the
trial court’s action is by a preponderance of the evidence. Id. at 763. That is, the
evidence must be sufficient to “create a reasonable belief that the defendant has
violated a condition of his probation.” Id. at 764. In such a proceeding, the trial judge is
the sole judge of the credibility of the witnesses and the weight to be given their
testimony, Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980), and the
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appellate court reviews the evidence in a light most favorable to the trial court’s ruling.
Cardona v. State, 665 S.W.2d at 493. One violation of the conditions of probation is
sufficient to support a revocation of the probation. Sanchez v. State, 603 S.W.2d 869,
871 (Tex. Crim. App. 1980).
In its petition seeking the revocation, the State alleged that appellant had failed to
timely pay his required probation supervision fees and that he had failed to complete the
mandated one-third of his sex offender treatment within the first year after that treatment
was required. This proceeding arises from appellant’s September 2004 no-contest plea
to a charge that, as a convicted sex offender, he had failed to timely report in person to
the Fort Worth police his intended change of residence. His probation was modified
three times in April, July, and August of 2008. His August 2008 modification required
him to submit to sex offender treatment evaluations as directed by his supervision
officer with the treatment to be completed within three years. In that modification, it was
provided that if appellant completed one-third of the treatment within a year, an
extension of the probationary term would be considered by the trial court.
At the revocation hearing, although appellant testified that he eventually made
his payments, appellant’s probation supervisor, Judith Choate, testified that appellant
did not pay his probation fees during that period alleged in the revocation petition. Ms.
Choate also testified that appellant did not meet the sex offender treatment goals and
evaluations required under the 2008 modification of his probation.
Appellant averred that in order to accomplish the treatment goals, he had to do
homework and complete responses which he could not do because he could not read or
write. However, Ms. Choate stated that he could have received help from the probation
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office had he requested it. She said that appellant had not taken the treatment
procedure seriously, and that he blamed everyone else for his troubles rather than
himself.
Dr. Mike Strain, a sex offender therapist, said that although appellant did have
problems reading and writing, his slow progress was caused by “his not being very
motivated . . . to do the goals and to accept information [they] were working on in
treatment.” Dr. Strain also testified that most of the treatment goals could have been
completed by appellant on available cassette tapes. He averred that appellant
understood the cassette tape procedure and had put on tape a list of rules related to a
child avoidance plan used by probationers such as himself.
In sum, viewed in the light by which we review evidence in appeals such as this
one, we cannot say the trial court abused its discretion in assessing the evidence and
revoking appellant’s probation. Appellant’s first point is overruled.
In his second point, appellant contends that the trial court erred by modifying his
probation conditions. He was originally placed on probation on September 30, 2004.
Subsequently, on August 27, 2008, his probation conditions were modified, and
included in that modification was the condition that he “successfully complete
psychological counseling, treatment, and aftercare sessions for sex offenders.” As we
have noted, the violation of this condition was one of the things that led to the
revocation which is the subject of this appeal. However, §11(a) of article 42.12 of the
Texas Code of Criminal Procedure specifically provides that the court may, “at any time
during the period of community supervision, alter or modify the conditions,” and that the
judge “may impose any reasonable condition that is designed to protect or restore . . .
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the victim, or punish, rehabilitate, or reform the defendant.” Tex. Code Crim. Proc.
Ann. art. 42.11 §11(a) (Vernon Supp. 2010). Additionally, we note the condition
specifically provided that even though the required sex offender treatment was expected
to take three years and appellant had only one year left on his probation term, if
appellant successfully completed one-third of the required treatment within one year, an
extension would be considered. Thus, appellant would not be in danger of being
revoked, even though he had not completed the full course within the one year. Thus,
the trial court did not act beyond its discretion in adding the condition. Appellant’s
second point is overruled.
In sum, both of appellant’s points are overruled, and the judgment of the trial
court is affirmed.
John T. Boyd
Senior Justice
Do not publish.
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