Torey Jabbar Newhouse v. State ( 2015 )

Affirmed as Modified; Opinion Filed November 30, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01628-CR
TOREY JABBAR NEWHOUSE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F-0758402-L
MEMORANDUM OPINION
Before Justices Francis, Lang, and Brown
Opinion by Justice Lang
This appeal follows the trial court’s revocation of Torey Jabbar Newhouse’s community
supervision and adjudication of his guilt for a 2007 aggravated robbery with a deadly weapon.
In two issues, Newhouse asserts his counsel was ineffective and the evidence is insufficient to
support the revocation. We modify the trial court’s judgment to reflect the trial court found
Newhouse violated seven of the eight conditions alleged by the State and to reflect a deadly
weapon finding. As modified, we affirm.
I. BACKGROUND
Newhouse was placed on ten years’ community supervision in March 2009. Diagnosed
with “a potentially severe mental illness, most probably a mood and psychotic disorder caused
by his past abuse of marijuana dipped in embalming fluid,” Newhouse was ordered, as a
condition of supervision, to participate in a “Substance Abuse Punishment Facility Program.”
Also, upon release from that program, he was ordered to participate in a “drug/alcohol
continuum of care treatment plan.”
On February 17, 2014, after Newhouse failed to return as directed to the residential
program in which he was placed as a part of the “drug/alcohol continuum of care treatment
plan,” the State moved to revoke Newhouse’s community supervision and proceed with
adjudication of guilt. The State asserted Newhouse violated condition (x) of the terms of
community supervision by going “AWOL” from the residential program and also violated
conditions
•(f) by failing to “work faithfully at suitable employment;”
•(h) by failing to pay $236 in court costs and fines;
•(j) by failing to pay $3540 in community supervision fees;
•(k) by failing to pay $50 to Crime Stoppers;
•(m) by failing to pay $230 in urinalysis fees;
•(t) by failing to obtain a “Drug Patch;” and,
•(v) by failing to complete intensive outpatient counseling.
Newhouse pleaded true to the allegations he violated conditions (h), (j), (k), (m), (t), and
(v). He pleaded not true to the allegations he violated conditions (f) and (x), and those were tried
to the trial court. Following testimony from Newhouse’s probation officer Joel Salazar that
Newhouse did not report he was working and, while “AWOL,” was treated at a psychiatric
hospital, the trial court found Newhouse violated all conditions “except X.” The trial court
revoked Newhouse’s supervision, adjudicated his guilt, and sentenced him to twenty-five years’
imprisonment.
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II. SUFFICIENCY OF EVIDENCE
Newhouse’s sufficiency argument challenges the seven conditions the trial court found he
violated. Of those seven, he pleaded true to violating six, and it is his pleas of true to those
violations which are the subject of his ineffective assistance of counsel claim. Because a plea of
true to one violation is sufficient to support revocation, see Tapia v. State, 462 S.W.3d 29, 31 n.2
(Tex. Crim. App. 2015), Newhouse asserts his sufficiency challenge “in reliance that the Court
will sustain his ineffective assistance of counsel claim.” However, because he pleaded not true
to violating condition (f), requiring he “work faithfully at suitable employment,” we address the
sufficiency issue first to determine if the revocation is supported independent of the alleged
ineffective assistance.
A. Applicable Law
In a community supervision revocation proceeding, the burden of proof lies on the State
to establish by a preponderance of the evidence that the defendant violated a condition of his
community supervision. Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013);
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The State satisfies this burden
when the “greater weight of the credible evidence” before the trial court “create[s] a reasonable
belief that the defendant has violated a condition of his [community supervision].” Rickels, 202
S.W.3d at 763-64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)).
B. Standard of Review
An appellate court reviews a decision to revoke deferred adjudication community
supervision and proceed to an adjudication of guilt in the same manner as a decision to revoke
ordinary community supervision: for abuse of discretion. See TEX. CODE CRIM. PROC. ANN. art.
42.12, §5(b) (West Supp. 2015); Hacker, 389 S.W.3d at 864-65. A trial court abuses its
discretion when its decision lies outside the zone of reasonable disagreement. See Tapia v. State,
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462 S.W.3d 29, 41 n.14 (Tex. Crim. App. 2015). In conducting its review, the appellate court
views the evidence in the light most favorable to the trial court’s ruling, bearing in mind the trial
court is the sole judge of the credibility of the witnesses and the weight to give their testimony.
See Hacker, 389 S.W.3d at 865; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel
Op.] 1981). The appellate court will conclude no abuse of discretion occurred if the record
shows a plea of true to, or proof by a preponderance of the evidence of, any of the alleged
violations of the community supervision terms. See Tapia, 462 S.W.3d at 31 n.2; Moore v. State,
605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980).
C. Application of Law to Facts
To show Newhouse failed to “work faithfully at suitable employment,” in violation of
condition (f), the State offered the testimony of probation officer Salazar. Salazar testified each
time Newhouse reported to Salazar, he was required to complete a “probation sheet” where he
must indicate whether he was working. According to Salazar, each time Newhouse reported,
Newhouse “put dashes [i]nstead of not applicable . . . where it asked him for employment.”
However, Newhouse argues this testimony was insufficient to support the revocation because
Salazar also testified that Newhouse was unable to maintain suitable employment due to his
mental illness. In making this argument, Newhouse relies on the following portion of trial
counsel’s cross-examination of Salazar:
Q. And on February 7th, Timberlawn again discharged [Newhouse] to Terrell
[State Hospital], is that correct?
A. Correct.
Q. Now, Mr. Newhouse’s medical records also say that because of his
medical condition, he’s disabled to work; is that correct?
A. Not based on any information that I got from Terrell, no.
Q. I’m not talking about just the Terrell records. You are his supervisor, is
that correct?
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A. Correct.
Q. So that means you have reviewed or you should have reviewed all of his
medical records, is that correct?
A. I’m not able to review every single medical record he has.
Q. Okay. But if you would review those medical records and say he is
disabled because of his medical condition, that would make him unable to
work at suitable employment, is that correct?
A. If I had seen it, yes.
Contrary to Newhouse’s argument, this testimony does not show Newhouse was unable
to work due to his mental illness. Rather, this testimony reflects Salazar agreed that Newhouse
would be unable to work if Newhouse’s medical records showed he was disabled. However, no
records were given to Salazar for his review, or offered into evidence, showing Newhouse was
disabled. Moreover, Terrell State Hospital was the last hospital in which Newhouse was treated
before the State moved to revoke supervision, and Salazar testified he received no information
from the hospital indicating Newhouse was disabled. As the sole judge of the credibility of the
witnesses’ testimony and the weight to give their testimony, the trial court was free to find
Salazar’s testimony “create[d] a reasonable belief” that Newhouse failed to work by choice, in
violation of condition (f) of his terms of community supervision. See Garrett, 619 S.W.2d at
174. On the record before us, we conclude the State satisfied its burden of proving, with
evidence independent of the pleas of true forming the basis of Newhouse’s ineffective assistance
claim, that Newhouse violated condition (f) as alleged, and there was no abuse of discretion
when supervision was revoked and guilt was adjudicated. Newhouse’s second issue is decided
against him.
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II. INEFFECTIVE ASSISTANCE OF COUNSEL
In his first issue, Newhouse asserts his trial counsel was ineffective in advising him to
plead true to the allegations he violated conditions (h), (j), (k). (m), (t), and (v). Specifically, he
asserts counsel was ineffective for advising him to plead true to the allegations that he violated
conditions (h), (j), (k), and (m) by failing to pay court costs, fines, and the various fees when,
“[d]ue to his [mental] illness, he was unable to maintain suitable employment.” He asserts
counsel was ineffective for advising him to plead true to the allegations he violated condition (t)
by failing to obtain a drug patch and violated condition (v) by failing to complete intensive
outpatient counseling when he was either in the residential program or in the hospital and
available to get the patch and receive counseling. Newhouse contends that but for trial counsel’s
advice to plead true to the specified allegations, he would have pleaded not true and proceeded to
a contested hearing on all alleged violations. He further contends that but for the pleas of true,
his supervision would not have been revoked because there was insufficient evidence to support
the allegations apart from the pleas.
A. Applicable Law
To prevail on an ineffective assistance of counsel claim, a defendant must show by a
preponderance of the evidence both that counsel’s performance was deficient and the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Smith
v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009). The first prong requires a showing that
counsel’s performance fell below an objective standard of reasonableness under prevailing
professional norms. See Strickland, 466 U.S. at 687-88; Smith, 286 S.W.3d at 340. The second
prong requires a showing of a reasonable probability that but for counsel’s errors, the result of
the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Smith, 286 S.W.3d
at 340. In the context of a community supervision revocation hearing, where the State alleges,
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and the trial court finds true, multiple violations of the terms of community supervision, the
defendant must demonstrate reasonable grounds exist to overturn each of the findings of true that
led to the revocation of community supervision. See Smith, 286 S.W.3d at 342. This is so
because “‘one sufficient ground for revocation . . . support[s] the trial court’s order revoking’
community supervision.” See id. (quoting Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim.
App. 1978)).
B. Application of Law to Facts
Having concluded the State satisfied its burden of proving, with evidence independent of
the pleas of true, that Newhouse violated condition (f) by failing to work and the trial court did
not abuse its discretion in revoking supervision on this ground, we necessarily decide
Newhouse’s ineffective assistance claim against him. To prevail on this claim, Newhouse
needed to show the results of the proceeding would have been different had he not pleaded true
to the specified violations. See Smith, 286 S.W.3d at 340. However, this he cannot do.
IV. MODIFICATION OF JUDGMENT
Although the trial court did not find Newhouse violated condition (x) of the terms of
supervision as the State alleged in its motion, the judgment recites Newhouse violated all terms
and conditions of supervision listed in the motion. Further, although the trial court adjudicated
Newhouse guilty as “indicted,” and the indictment alleged Newhouse used and exhibited a
deadly weapon, the judgment does not contain a deadly weapon finding. Because an appellate
court has the authority to modify an incorrect judgment to make the record speak the truth, we
modify the judgment to (1) show the trial court found Newhouse violated conditions (f), (h), (j),
(k), (m), (t), and (v) as set out in the State’s motion and (2) reflect “YES, NOT A FIREARM” in
the section entitled “Findings on Deadly Weapon:”. See TEX. R. APP. P. 43.2(b); Bigley v. State,
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865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.
App.—Dallas 1991, pet. ref’d).
V. CONCLUSION
As modified, we affirm the trial court’s judgment.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
141628F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TOREY JABBAR NEWHOUSE, Appellant On Appeal from the Criminal District Court
No. 5, Dallas County, Texas
No. 05-14-01628-CR V. Trial Court Cause No. F-0758402-L.
Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee Francis and Brown participating.
Based on the Court’s opinion of this date, we MODIFY the trial court’s judgment to
reflect on page 2, in the paragraph concerning the trial court’s findings, as follows:
(5) While on community supervision, Defendant violated the terms and conditions of community
supervision by violating conditions (f), (h), (j), (k), (m), (t), and (v) as alleged in the State’s
Motion to Revoke Probation or Proceed with an Adjudication of Guilt.
We further MODIFY the section of the trial court’s judgment entitled “Findings on Deadly
Weapon” to reflect “YES, NOT A FIREARM.”
As MODIFIED, we AFFIRM the trial court’s judgment.
Judgment entered this 30th day of November, 2015.
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