Anthony Michael Hodge v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-10-00050-CR
02-10-00051-CR
ANTHONY MICHAEL HODGE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Appellant Anthony Michael Hodge appeals the trial court‘s orders revoking
his deferred-adjudication community supervision in two aggravated robbery
cases and the corresponding judgments adjudicating his guilt. In one point, he
alleges that the trial court abused its discretion by sentencing him to fifteen years‘
1
See Tex. R. App. P. 47.4.
confinement instead of reinstating his community supervision and placing him in
a drug treatment rehabilitation center. We affirm.
II. Procedural and Factual History
On October 5, 2009, Appellant pleaded guilty pursuant to a plea bargain
agreement to two charges of aggravated robbery with a deadly weapon, 2 and the
trial court placed him on deferred adjudication community supervision for five
years in each case. On November 23, 2009, the State filed a petition to proceed
to adjudication in each case, alleging that Appellant had violated the terms and
conditions of his community supervision six times within five weeks of being
placed on community supervision. The State alleged that Appellant illegally
used a controlled substance, failed to submit a urine sample, failed to permit his
probation officer to visit during a scheduled home visit, and committed three new
misdemeanor offenses. At a hearing on the State‘s motion, Appellant pleaded
―true‖ to all six allegations. The State rested on Appellant‘s pleas of true.
Appellant testified and admitted testing positive for methamphetamine
three weeks after being placed on community supervision and failing to submit to
a urine sample less than two weeks later because he did not want ―another dirty
2
See Tex. Penal Code Ann. § 29.03(a)(2) (West 2011).
2
UA.‖3 Appellant explained that he had a ―major problem‖ with drugs and alcohol
and that,
Before I moved up here and met my girlfriend I was living in
Corpus Christi and had a steady job. My landlord was a bounty
hunter. We did a lot of fishing and hanging out and stuff, so I didn‘t
really get in any trouble down there in Corpus Christi. And upon
completing [drug treatment] or whatever we can work out, . . . living
situations and a job and everything like that is still available for me
down there.
And I believe if I moved around from where I‘m at[,] the want
to do drugs or alcohol would be far less because I‘m hanging out
with older guys down there. I‘m hanging out with people who have
careers and stable lifestyles instead of down here where I‘m hanging
out with younger people.
Appellant asked the trial court to continue his community supervision and place
him in a drug treatment facility rather than send him to prison.4 In each case, the
trial court entered findings of ―true‖ to all but the new-offense allegations,
adjudicated Appellant‘s guilt, and sentenced him to fifteen years in prison.
III. Discussion
In his sole point, Appellant asserts that the trial court abused its discretion
by failing to reinstate his community supervision and place him in a drug
treatment rehabilitation center. Appellant does not dispute that his pleas of true
3
Although Appellant pleaded ―true‖ at the revocation hearing to committing
theft under $500 and assaulting and threatening violence against his girlfriend‘s
sister, he testified that he did not ―technically‖ commit these offenses. The trial
court did not find the State‘s new-offense allegations to be true.
4
Appellant specifically asked the trial court to place him in a substance
abuse felony punishment facility (SAFPF).
3
are sufficient to support the trial court‘s ruling; instead, he argues that the
evidence at the revocation hearing ―clearly indicated that [he] needed drug
treatment,‖ that the trial court was ―required‖ to grant it, and that the trial court‘s
failure to do so constituted an abuse of discretion.
A. Applicable Law
Appellate 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); Miles v. State, Nos. 02-09-00368-CR,
02-09-00369-CR, 2011 WL 2436769, at *3 (Tex. App.—Fort Worth June 16,
2011, no pet. h.); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth
2007, pet. ref‘d). When there is sufficient evidence to support a finding that the
defendant violated a condition of his community supervision, the trial court does
not abuse its discretion by revoking the supervision. See Cardona v. State, 665
S.W.2d 492, 493–94 (Tex. Crim. App. 1984); Wade v. State, 83 S.W.3d 835,
839–40 (Tex. App.—Texarkana 2002, no pet.). A finding of a single violation of
community supervision is sufficient to support revocation. Leach v. State, 170
S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref‘d). A defendant‘s plea of
―true‖ to even one allegation in the State‘s motion to revoke is sufficient to
support the trial court‘s decision to adjudicate Appellant‘s guilt. Cole v. State,
578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); see Ramos v. State,
No. 02-08-00363-CR, 2009 WL 1035120, at *1 (Tex. App.—Fort Worth Apr. 16,
2009, pet. struck) (mem. op., not designated for publication). Once sufficient
4
evidence is presented of a violation of a community-supervision condition, the
trial court has broad discretion in choosing whether to continue, modify, or revoke
the community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, '' 5, 22, 23
(West Supp. 2010); Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App.
[Panel Op.] 1979); Hays v. State, 933 S.W.2d 659, 661 (Tex. App.—San Antonio
1996, no pet.). Where deferred community supervision is revoked, the trial court
may generally impose any punishment authorized by statute within the statutory
range. See Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App.
1999).
B. Analysis
While acknowledging that a trial court‘s revocation order is reviewed for an
abuse of discretion, Appellant argues—based on language in Smith v. State—
that the trial court is ―‗not accorded absolute discretion in the decision to revoke
probation.‘‖ See 932 S.W.2d 279, 281 (Tex. App.—Texarkana 1996, no pet.).
Appellant maintains that, because the trial court could have continued or
modified his community supervision and placed him in SAFPF under article
42.12, section 22(a)(4) of the code of criminal procedure, the trial court abused
its discretion by failing to grant his request for drug treatment.5 See Tex. Code
5
In relevant part, section 22 provides,
If after a hearing under Section 21 of this article, a judge
continues or modifies community supervision after determining that
the defendant violated a condition of community supervision, the
judge may impose any other conditions the judge determines are
5
Crim. Proc. Ann. art. 42.12, ' 22(a)(4). Appellant‘s cited authorities do not
support his argument.
Appellant‘s citation to Smith is misleading as he omits the remaining
explanatory language that ―the court is not authorized to revoke without a
showing that the probationer has violated a condition of his probation imposed by
the court.‖ 932 S.W.2d at 281. Indeed, the language in Smith (and similar case
law) is ―better reflected by the proposition that the trial court does not have
discretion to terminate probation without an affirmative finding, supported by
sufficient evidence, of a violation of a condition of probation.‖ Hays, 933 S.W.2d
at 661 (discussing two cases with language similar to Smith). Moreover,
Appellant fails to provide authority for the proposition that article 42.12, section
22(a) limits the trial court‘s discretion. See Marriott v. State, No. 07-02-00203-
CR, 2003 WL 22004084, at *1–3 (Tex. App.—Amarillo Aug. 25, 2003, pet. ref‘d)
(mem. op., not designated for publication). In Marriott, the defendant argued that
the trial court abused its discretion by revoking her community supervision rather
than modifying it to require intensive substance abuse counseling. Id. at *1.
While acknowledging article 42.12, section 22(a)(4), the court of appeals noted:
appropriate, including . . . the placement of the defendant in a
substance abuse felony punishment program . . . if . . . drug or
alcohol abuse significantly contributed to the commission of the
crime or violation of community supervision; and . . . the defendant is
a suitable candidate for treatment . . . .
See Tex. Code Crim. Proc. Ann. art. 42.12, ' 22(a)(4)(B)(i)-(ii).
6
Appellant cites Ice v. State, 914 S.W.2d 694 (Tex. App.—Fort Worth
1996, no pet.), in which the defendant appealed the trial court‘s
judgment requiring him to participate in an SAFPF. While Ice may
stand for the proposition that a defendant‘s desire not to participate
in an SAFPF does not preclude its imposition as a condition of
community supervision, it does not support a contention that the
court must honor a defendant‘s expressed desire to participate in
such a program.
Id. at *2; see Seale v. State, 721 S.W.2d 590, 592 (Tex. App.—Fort Worth 1986,
no pet.) (―Appellant lists no authority to support his contention that the trial court
had an obligation to impose a sentence other than a jail sentence upon the
violation of the terms of probation.‖).
Here, Appellant pleaded ―true‖ to all six alleged violations and admitted
during testimony that he violated three community-supervision conditions. Thus,
the evidence is sufficient to support the trial court‘s revocation orders
notwithstanding Appellant‘s offer of mitigating evidence. See Brown v. State, No.
02-10-00305-CR, 2011 WL 2119678, at *1 (Tex. App.—Fort Worth May 26,
2011, no pet. h.) (mem. op., not designated for publication) (holding Brown‘s plea
of ―true‖ to allegation that he failed to complete substance abuse counseling
sufficient to support revocation despite explanation that two serious back injuries
and two jobs conflicted with counseling); Johnson v. State, Nos. 11-09-00237-
CR, 11-09-00238-CR, 2010 WL 3504853, at *2 (Tex. App.—Eastland Sept. 9,
2010, pet. ref‘d) (mem. op., not designated for publication) (holding that
Johnson‘s plea of true to marihuana use supported trial court‘s revocation even
7
though Johnson presented evidence that he had a drug problem and would
benefit from treatment).
Further, the trial court gave Appellant the opportunity to offer mitigating
evidence,6 and Appellant does not argue that the trial court failed to consider
such evidence.7 Additionally, the trial court‘s imposition of a fifteen-year
sentence was well within—indeed toward the lower end of—the applicable
punishment range for the first-degree aggravated robberies to which Appellant
pleaded guilty.8 See Tex. Penal Code Ann. ' 12.32 (West 2011) (the punishment
range for a first-degree felony is five to ninety-nine years); Kim v. State, 283
S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref‘d) (holding that
punishment imposed within statutory limits is generally not subject to
excessiveness challenge).
6
See Euler v. State, 158 S.W.3d 75, 76–78 (Tex. App.—Houston [14th
Dist.] 2005) (holding that when a trial court revokes community supervision,
defendant is entitled to present mitigating evidence during the proceedings)
(citing Pearson v. State, 994 S.W.2d 176, 178 (Tex. Crim. App. 1999)), aff’d, 218
S.W.3d 88 (Tex. Crim. App. 2007).
7
See Buerger v. State, 60 S.W.3d 358, 363–64 (Tex. App.—Houston [14th
Dist.] 2001, pet. ref‘d) (―The Constitutional mandate of due process requires a
neutral and detached judicial officer who will consider the full range of
punishment and mitigating evidence.‖).
8
See McClain v. State, No. 04-05-00941-CR, 2006 WL 1539638, at *1–2
(Tex. App.—San Antonio 2006, no pet.) (mem. op., not designated for
publication) (construing argument that the trial court erred in imposing a jail term
rather than continuing community supervision as an argument that the sentence
was unreasonable or excessive).
8
For the above reasons, we hold that the trial court did not abuse its
discretion by revoking Appellant‘s community supervision and sentencing him to
fifteen years‘ confinement. See Hawkins v. State, 112 S.W.3d 340, 344–45 (Tex.
App.—Corpus Christi 2003, no pet.) (holding that trial court did not abuse its
discretion by sending Hawkins to prison instead of SAFPF, because revocations
were based on evidence and sentences were within permissible range); see also
Mathis v. State, No. 04-09-00075-CR, 2009 WL 3320270, at *2 (Tex. App.—San
Antonio Oct. 14, 2009, no pet.) (mem. op., not designated for publication)
(holding that trial court‘s sentence fell within the statutory limits and therefore ―the
court complied with its only sentencing restriction, and revoking defendant‘s
probation instead of sending her to in-patient drug treatment did not amount to an
abuse of discretion‖). Appellant‘s sole point is overruled.
IV. Conclusion
Having overruled Appellant‘s sole point, we affirm both of the trial court‘s
judgments.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 14, 2011
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