Monique Davis v. State ( 2014 )

Affirmed and Memorandum Opinion filed September 23, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00207-CR
MONIQUE DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 04CR2941
MEMORANDUM OPINION
Appellant Monique Davis appeals from the trial court’s revocation of her
deferred adjudication community supervision for felony theft. The trial court
found that appellant failed to report to her probation officer for nine months and
failed to pay restitution and fees. We hold that the trial court did not abuse its
discretion in revoking appellant’s community supervision, and we affirm.
I. BACKGROUND
Appellant pleaded guilty to felony theft and was placed on deferred
adjudication community supervision for five years beginning in May 2007. The
State filed a motion to adjudicate and revoke community supervision in February
2012. The State filed an amended motion in January 2013, alleging violations as
follows:
4. Said Defendant has failed to report in person to the
G.C.C.S.C.D. [Galveston County Community Supervision and
Corrections Department] for the months of January, September,
October, November, and December 2011; January, February,
March, and April 2012;
12. Said Defendant did fail to pay Supervision fees as ordered, and
is currently $2400.00 in arrears;
13. Said Defendant did fail to pay Cost of Court as ordered, and is
currently $418.00 in arrears;
15. Said Defendant did fail to pay restitution as ordered, and is
currently $3777.21 in arrears;
16. Said Defendant did fail to reimburse Galveston County for
compensation of appointed counsel as ordered, and is currently
$270.00 in arrears;
16A. Said Defendant did fail to pay Crime Stoppers Program
payment as ordered, and is currently $25.00 in arrears.
The trial court held a hearing, where appellant pleaded “true” to violation number
four and “not true” to the remainder.
Jesus Venegas, appellant’s probation officer as of September 2012, testified
about documents in appellant’s file and how she failed to report for the months
identified in the alleged violation number four. Venegas confirmed that appellant
had been ordered to pay $5,506.31 in restitution and she had paid $1,729 during
the period of her community supervision. Venegas also confirmed the arrearages
for the various alleged violations related to fees and restitution. Since Venegas had
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been supervising her, appellant had been unemployed and seeking employment;
she had also been reporting to Venegas monthly.
Appellant testified that she did not report as required because she was upset
with her then-current probation officer, Amis Carlisle. She testified that he was
“rude,” and she sent him letters explaining as such. The letters were admitted at
the hearing. She wrote to Carlisle in November 2011 regarding “why [she]
decided to not come to anymore meeting[s].” She complained that Carlisle
“talk[ed] to me like I had a tail,” and he “wouldn’t let me talk, and told me that
[he] was going to have a motion to revoke, and I would lose my job because I
didn’t bring a payment.” She testified at the hearing that Carlisle had said if she
did not make a payment, then “he would go on the job and have me fired.”
She explained in her November 2011 letter that she “decided to resign my
position with the school to save me the embarrassment of being arrested.” She
explained, “The issue I have is the way I was talk[ed] to, and how I was treated.”
She testified that she resigned from the job she obtained as a teacher’s aide
“[b]ecause I didn’t want him to come onto my job. . . . [t]o lie and have me fired.”
She testified, “I wasn’t going to be embarrassed. He didn’t know nothing about
me like that.” She testified that, rather than being employed, she had been
volunteering for a nonprofit she founded, and she did not have the ability to make
payments on the remainder of the restitution and fees.
On cross, the State inquired about her failures to report to probation:
Q. And you know you were supposed to go to probation every
month?
A. Yes.
Q. You know you could go to prison for up to two years if you
didn’t go to probation?
A. Yes.
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Q. Even if you had a disagreement with Mr. Carlisle?
A. Yes.
....
Q. And you chose not to go?
A. Yes.
The State asked more questions about appellant’s employment:
Q. Were they going to pay you?
A. Yes.
Q. But you resigned?
A. Yes.
Q. Because Mr. Carlisle was rude to you?
A. Yes.
Q. You realize not going to probation and not working and not
paying your fees could result in you going to prison for up to two
years? Do you realize that?
A. Yes.
Q. And you still chose to do that?
A. Yes.
On redirect, appellant admitted that she was wrong not to report to Carlisle. Even
though she was upset with Carlisle, she handled the situation “very poorly.”
During closing arguments, the State acknowledged that appellant did not have a
well-paying job, and the State focused on her failure to report: “The biggest
problem, Judge, is she just didn’t report to Probation.”
Immediately before orally pronouncing revocation of appellant’s community
supervision, the trial court explained:
Well, to say that she has really done well on probation for any period
of time is a misstatement. I see on my docket sheet that, well, first of
all, she asked to meet with the Judge in her letter that’s marked—I
don’t have the letters. Here we go. Defendant’s 5, sent a letter
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February 17th, 2009, asking to meet with the Judge. She met with the
Judge on March 26th, 2009, at an administrative hearing. And at that
time I told her that she was desperately behind on restitution; and I
admonished her to pay her restitution and catch up and gave her
another shot at probation even then instead of filing a motion to
revoke her probation. And it was—the probation officer gave her a
chance to come in here and talk to me about it. It doesn’t look like
this business about restitution has ever hit home with the Defendant.
And then certainly to miss nine months of reporting, well, that just
ain’t going to fly.
The court found all of the State’s alleged violations true, revoked appellant’s
community supervision, and assessed punishment at eighteen months’
confinement.
On appeal, appellant raises two issues: (1) the trial court abused its
discretion in revoking her probation, thus violating her right to due process; and
(2) the trial court prejudged her, thus violating her rights to due course of law and
due process. Appellant contends the second issue has been “subsumed” in the first,
so she briefs these two issues together. We now address each separately, however,
because different considerations apply.
II. REVOCATION OF COMMUNITY SUPERVISION
In her first issue, appellant contends the trial court abused its discretion in
revoking her community supervision by (1) “ignoring unrebutted charges that
Appellant ‘failed to report’ because of verbal abuse by the probation officer, i.e.,
threats to have her fired from her employment if she did not bring in more money”;
and (2) failing “to recognize that Appellant clearly was not in a position to pay all
of the fees and restitution imposed.” We hold that the trial court did not abuse its
discretion by revoking appellant’s community supervision because of her failure to
report and failure to pay fees and restitution.
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We review a trial court’s decision to revoke probation (or deferred
adjudication community supervision) for an abuse of discretion, taking into
account the sufficiency of the evidence supporting the basis for revocation. See
State v. Hacker, 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 trial court is the sole judge of
the credibility of the witnesses and the weight to be given their testimony. Hacker,
389 S.W.3d at 865. The State need only prove one ground for revocation by a
preponderance of the evidence. Id.; see also Garcia v. State, 387 S.W.3d 20, 26
(Tex. Crim. App. 2012) (“[P]roof of a single violation will support revocation.”).
Because revocation of probation implicates due process, it may not be
arbitrarily withdrawn. Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App.
2012). Thus, probation may not be revoked for an impermissible or
unconstitutional reason. See id. at 573, 583 (revocation based on illegal
discrimination, reliance on inadmissible polygraph evidence, or “mere caprice”
would violate due process); see also Dansby v. State, 398 S.W.3d 233, 239–40
(Tex. Crim. App. 2013) (revocation for invoking Fifth Amendment privilege is
unconstitutional); Gipson v. State, 383 S.W.3d 152, 157 (Tex. Crim. App. 2012)
(revocation for failure to pay fines without considering the reasons for the
probationer’s inability to pay or alternative measures would violate the United
States Constitution) (citing Bearden v. Georgia, 461 U.S. 660, 665 (1983)).
A. Failure to Report
Appellant pleaded “true” to the allegation that she failed to report for nine
months, including eight consecutive months. Generally, appellant’s failure to
report is a sufficient basis for the trial court’s decision to revoke her community
supervision. See, e.g., Flournoy v. State, 589 S.W.2d 705, 707, 709–10 (Tex.
Crim. App. [Panel Op.] 1979) (no abuse of discretion to revoke for failing to report
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for nine months over a period of about four years); Greer v. State, 999 S.W.2d 484,
489 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (no abuse of discretion to
revoke for failing to report for a single month); Guerra v. State, 665 S.W.2d 412,
413 (Tex. App.—Corpus Christi 1983, no pet.) (no abuse of discretion to revoke
for failing to report for three consecutive months despite probationer’s excuse that
he was a “slow learner” and his failure to report was not intentional or willful;
probation officer testified that appellant understood his obligation to report).
Appellant contends that the trial court abused its discretion by revoking on
this basis because her probation officer verbally threatened to have her fired if she
did not pay her fees and restitution. However, the trial court was the judge of her
credibility and could have disbelieved her. See Hacker, 389 S.W.3d at 865. And
by appellant’s own evidence, she failed to report for many months after she
resigned her job. At that point, any verbal threat to have her fired for not paying
restitution would have become moot, yet she still failed to report. Her self-serving
explanation also could not have justified her failure to report before the alleged
verbal threat—in January 2011.
She testified at the hearing that she understood her obligation to report, she
understood that not reporting could result in revocation, and she did not report,
which was a very poor decision. Thus, appellant was afforded due process, and the
trial court did not abuse its discretion by revoking appellant’s deferred adjudication
community supervision based on her failure to report for nine months. See, e.g.,
Flournoy, 589 S.W.2d at 709–10.
B. Failure to Pay Fees and Restitution
Regarding revocation based on the failure to pay fees and restitution, the
United States Supreme Court has held that “it could be unconstitutional to deprive
a defendant of his liberty when he was unable to pay.” Gipson, 383 S.W.3d at 157.
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However, it does not offend due process to revoke probation when the probationer
“‘willfully refused to pay or failed to make sufficient bona fide efforts legally to
acquire the resources to pay.’” Id. at 156 (quoting Bearden v. Georgia, 461 U.S.
660, 672 (1983)).
The trial court heard evidence that appellant quit her job as a teacher’s aide
because her probation officer was rude to her and she did not want to be
embarrassed, and she was unemployed thereafter and did not pay her fees and
restitution. Further, the trial court had warned her three years before the State’s
initial motion to revoke that she was delinquent on her restitution and needed to
catch up. Based on the evidence that appellant quit her job after the trial court’s
admonishment to pay restitution, the court could have concluded that appellant did
not make sufficient bona fide efforts to acquire the resources to pay her fees and
restitution. See Lively v. State, 338 S.W.3d 140, 146 (Tex. App.—Texarkana 2011,
no pet.) (no abuse of discretion to revoke probation because the trial court could
have found that the probationer failed to make sufficient bona fide efforts to
acquire the resources to pay his restitution and fines when there was evidence that
the probationer was a carpenter but had not sought employment in that field).
Appellant was afforded due process, and the trial court did not abuse its
discretion for revoking appellant’s deferred adjudication community supervision
based on her failure to pay fees and restitution.
Appellant’s first issue is overruled.
III. PREJUDGMENT
In her second issue, appellant contends the trial court prejudged her, and she
claims that she did not need to present this argument to the trial court to preserve
error for review. We disagree with appellant’s preservation argument.
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Appellant contends that the record is “clear that from the time of an
administrative hearing on March 29, 2009, the trial court engaged in a form of zero
tolerance adjudication, and enforced that policy in revoking Appellant.” In Hull v.
State, the Court of Criminal Appeals held that an appellant must raise in the trial
court a complaint that the trial court engaged in a “zero tolerance” policy of
revoking probation. See 67 S.W.3d 215, 218 (Tex. Crim. App. 2002).1 Appellant
suggests that the error-preservation requirement from Hull was overruled sub
silentio by Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012). Appellant
contends that “the Leonard standard of review is that due process is now an
integral part of the abuse-of-discretion inquiry.”
However, even before Hull, due process was “integral” to review of whether
a trial court abused its discretion in revoking probation. See, e.g., DeGay v. State,
741 S.W.2d 445, 450 (Tex. Crim. App. 1987) (“The central issue to be determined
in reviewing a trial court’s exercise of discretion in a probation revocation case is
whether the probationer was afforded due process of law.”), quoted in Leonard,
385 S.W.3d at 577. Accordingly, we see nothing in Leonard that overrules the
holding in Hull. Indeed, in Leonard the probationer objected to the admission of
evidence of his polygraph examinations during the revocation hearing. See
Leonard, 385 S.W.3d at 573. An appellant must still object in the trial court to
preserve constitutional arguments relating to the revocation of probation. See
Gipson v. State, 428 S.W.3d 107, 110–11 (Tex. Crim. App. 2014) (Alcala, J.,
concurring) (noting that a Bearden inability-to-pay complaint must be preserved in
the trial court).
1
The First Court of Appeals suggested that a trial court’s abandonment of its statutory
discretion and enforcement of a “zero tolerance” policy of revoking probation—either before
hearing evidence or without considering the evidence—would violate a probationer’s due
process right. See Hull v. State, 29 S.W.3d 602, 605, 607 (Tex. App.—Houston [1st Dist.]
2000), rev’d on other grounds, 67 S.W.3d 215 (Tex. Crim. App. 2002).
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Because appellant did not complain to the trial court about any “zero
tolerance” policy, she has failed to preserve error and cannot raise the issue for the
first time on appeal. See Tex. R. App. P. 33.1; Hull, 67 S.W.3d at 218.
Appellant’s second issue is overruled.
IV. CONCLUSION
The trial court had multiple independent bases for revoking appellant’s
deferred adjudication community supervision, and the trial court did not abuse its
discretion regarding any of them. Having overruled both of appellant’s issues, we
affirm the trial court’s judgment.
/s/ Sharon McCally
Justice
Panel consists of Justices McCally, Brown, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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