Eugene Harris Taylor v. State ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00425-CR
EUGENE HARRIS TAYLOR APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1178601D
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MEMORANDUM OPINION1
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A jury convicted appellant Eugene Harris Taylor of indecency with a child
by contact.2 The trial court suspended the imposition of his sentence and placed
him on community supervision. Years later, the trial court revoked appellant’s
community supervision and sentenced him to eight years’ confinement. The
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011).
court’s judgment revoking appellant’s community supervision required him to pay
$135 in reparations. In two points, appellant contends that the trial court abused
its discretion by revoking his community supervision and violated his right to due
process by imposing the reparations. We affirm.
Background Facts
A grand jury indicted appellant with indecency with a child by contact. A
jury found him guilty, assessed eight years’ confinement as his punishment, and
recommended suspension of his sentence so that he could be placed on
community supervision. In accordance with the jury’s verdicts, the trial court
signed a judgment of conviction that reflected appellant’s eight-year sentence,
the suspension of the sentence, and his placement on community supervision for
ten years.
A condition of appellant’s community supervision required him to complete
“psychological counseling, treatment, and aftercare sessions for sex offenders”
within three years, “with at least one-third of treatment completed each year.”
Another condition required appellant to have “no contact with any child under 17
years of age unless a chaperon . . . [was] present.” Finally, the court required
appellant to pay various fees, including a supervision fee of $60 per month and a
2
sex offender fee of $5 per month. Appellant brought an appeal, and we affirmed
the trial court’s judgment placing him on community supervision.3
Four years after the trial court placed appellant on community supervision,
the State filed a petition for the court to revoke the community supervision. The
State alleged that appellant had violated conditions by not completing sex
offender treatment and by having contact with a child. The trial court held a
hearing on the State’s petition. Appellant pled not true to the allegations, but
after hearing the parties’ evidence and arguments, the trial court found that
appellant had violated terms of his community supervision and revoked it. The
trial court sentenced him to eight years’ confinement.
The court’s judgment revoking appellant’s community supervision stated
that he owed $135 in reparations. An attachment to the judgment directed the
withdrawal of that amount from appellant’s inmate trust account. A bill of costs,
which was certified by a deputy district clerk,4 showed that appellant owed $135
as “Reparation (Probation Fees).” Another filed document that was addressed to
the trial court and generated by the community supervisions and corrections
3
See Taylor v. State, No. 02-11-00037-CR, 2012 WL 662373, at *4 (Tex.
App.—Fort Worth Mar. 1, 2012, pet. ref’d) (mem. op., not designated for
publication).
4
The certification stated, “I hereby certify that the foregoing is a correct
account of the Court Costs, Fees, and/or Fines adjudged against the Defendant
in the above entitled and numbered cause . . . .”
3
department showed that the $135 reparations amount comprised $120 in
probation fees and $15 “DUE TO CSCD.” Appellant brought this appeal.
The Revocation of Appellant’s Community Supervision
In his first point, appellant argues that the trial court abused its discretion
by revoking his community supervision. We review an order revoking community
supervision for an abuse of discretion. Hacker v. State, 389 S.W.3d 860, 865
(Tex. Crim. App. 2013); Powe v. State, 436 S.W.3d 91, 93 (Tex. App.—Fort
Worth 2014, pet. ref’d). A trial court abuses its discretion when it makes a
decision that lies outside the zone of reasonable disagreement. Davis v. State,
329 S.W.3d 798, 803 (Tex. Crim. App. 2010), cert. denied, 132 S. Ct. 128 (2011).
In a revocation hearing, the State must prove by a preponderance of the
evidence that the defendant violated at least one of the terms and conditions of
community supervision as alleged in the petition to revoke. Powe, 436 S.W.3d at
93; Lawrence v. State, 420 S.W.3d 329, 331 (Tex. App.—Fort Worth 2014, pet.
ref’d); see Hacker, 389 S.W.3d at 865 (explaining that in a revocation context, a
preponderance of the evidence means “that greater weight of the credible
evidence which would create a reasonable belief that the defendant has violated
a condition of his probation”). “The trial court is the sole judge of the credibility of
the witnesses and the weight to be given their testimony, and we review the
evidence in the light most favorable to the trial court’s ruling.” Lawrence, 420
S.W.3d at 331; see Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. [Panel
Op.] 1979) (stating that courts must review evidence in the light most favorable to
4
the revocation decision). A trial court does not abuse its discretion by revoking
probation upon proof of a single violation, regardless of evidence that the
probationer otherwise fulfilled the conditions. See Sanchez v. State, 603 S.W.2d
869, 871 (Tex. Crim. App. [Panel Op.] 1980); Norton v. State, 434 S.W.3d 767,
773 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
In its revocation petition, the State alleged,
[D]uring the effective period of . . . community supervision, the
Defendant violated the terms and conditions set by the Court as
follows:
1. SEX OFFENDER TREATMENT: The Defendant was
ordered to submit to sex offender treatment evaluation as directed
by the supervision officer. As recommended by the evaluation,
attend and participate fully in and successfully complete
psychological counseling, treatment, and aftercare sessions for sex
offenders with an individual or organization as specified by or
approved by the Court or the supervision officer. . . . Treatment
must be completed within three years of its initiation, with at least
one-third of treatment completed each year.
In violation of this condition, the Defendant was suspended
from sex offender treatment on or about June 29, 2015.
2. SEX OFFENDER TREATMENT: The Defendant was
ordered to submit to sex offender treatment evaluation as directed
by the supervision officer. . . .
In violation of this condition, the Defendant failed to complete
one-third of sex offender treatment within one year of its initiation.
3. SEX OFFENDER TREATMENT: The Defendant was
ordered to submit to sex offender treatment evaluation as directed
by the supervision officer. . . .
In violation of this condition, the Defendant failed to complete
two-thirds of sex offender treatment within two years of its initiation.
5
4. CONTACT WITH CHILDREN: The Defendant was ordered
to have no contact with any child under 17 years of age unless a
chaperon approved by the Court or supervision officer is present.
In violation of this condition, the Defendant had contact with a
child under 17 years of age without a [chaperon] approved by the
court or supervision officer present on or before November 13, 2014.
Appellant pled not true to each of these allegations, but after considering
the parties’ presentation of evidence, the trial court found the second through
fourth allegations to be true. The evidence supports the trial court’s findings.
Jennifer Aguilar, appellant’s probation officer, testified that appellant had been
placed in a county-approved sex offender treatment program and had attended
that program for nineteen months. But according to Aguilar, although that
program required appellant to complete thirty goals at a rate of ten per year, he
completed only six in the nineteen months.5 Because appellant was “way
behind” in completing the program and because he was dissatisfied with aspects
of the program, a judge allowed him to switch treatment providers. Appellant
spent several months working with the second treatment provider but completed
few goals.6 His second treatment provider eventually suspended him from the
5
Concerning appellant’s failure to complete the goals and to progress on
treatment, Aguilar testified, “He showed little effort on progress reports to
complete assignments . . . . Whatever his therapist [did], he blame[d] the
therapist, taking little responsibility for his effort.”
6
Appellant’s second treatment provider testified that appellant completed
therapy with her that amounted to “about three goals.” Appellant told his second
treatment provider that he routinely had contact with minors at his church
because he handed out bulletins to them.
6
program because his probation officer said that appellant had been taking
pictures of children and peeping in adults’ windows. Thus, the evidence
demonstrates that appellant did not complete one-third of his sex offender
treatment within a year of its initiation or complete two-thirds of the treatment
within two years, just as the State alleged in its revocation petition.
Viewing the evidence in the light most favorable to the trial court’s
revocation decision, we conclude that the trial court did not abuse its discretion
by finding that he violated a term of his community supervision—completing at
least one-third of his sex offender treatment each year—and by revoking his
community supervision.7 See Lawrence, 420 S.W.3d at 331. We overrule
appellant’s first point.
The Propriety of Reparations Included in the Judgment
In his second point, appellant contends that the trial court violated his right
to due process when it imposed unpaid probation fees as reparations in the
judgment revoking his community supervision.8 Specifically, he contends that
(1) reparations awarded in a judgment cannot include probation fees; (2) if
7
In his challenge to revocation on this ground, appellant argues that he
substantially complied with treatment and that mitigating circumstances excused
his failure to complete treatment; appellant appears to concede that the trial
court’s finding that he did not complete treatment at the required pace was
“factually accurate.”
8
Appellant correctly contends that due process principles apply in
proceedings related to the revocation of community supervision. Leonard v.
State, 385 S.W.3d 570, 577 (Tex. Crim. App. 2012) (op. on reh’g).
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reparations may include probation fees, the State failed to prove that he owed
the fees and had not paid them; and (3) the evidence shows that he owed no
probation fees. We cannot agree.
We recently resolved an appeal in which the appellant similarly contended
that a trial court had violated her right to due process by assessing reparations
based on her failure to pay community supervision fees. Tucker v. State, Nos.
02-15-00265-CR, 02-15-00266-CR, 2016 WL 742087, at *1 (Tex. App.—Fort
Worth Feb. 25, 2016, pet. ref’d) (mem. op., not designated for publication). The
appellant contended that the assessment of reparations violated due process
because the record did not contain evidence that the fees were owed, because
the State had not alleged the appellant’s failure to pay the fees in its revocation
petition, and because “probation fees [could not] be included as reparations.” Id.
We rejected each of these arguments, reasoning,
The State did not accuse Appellant of failing to pay her
probation fees in its petition to proceed to adjudication, nor was her
community supervision revoked for her failure to pay such fees. . . .
There is no authority that the State must allege the failure to pay
such fees as a ground for revocation in order to hold a defendant
responsible for unpaid administrative fees. See Edwards v. State,
Nos. 09-13-00360-CR, 09-13-00361-CR, 2014 WL 1400747, at *2
(Tex. App.—Beaumont Apr. 9, 2014, no pet.) (mem. op., not
designated for publication) (observing that there is no authority for
the proposition that a defendant’s responsibility to pay the fees
arises only if the State alleges the failure to pay as a ground for
revocation).
In granting community supervision, a trial court must fix a fee
of no more than $60 per month, and if community supervision is later
revoked, the trial court “shall enter the restitution or reparation due
and owing on the date of the revocation” in a revocation of a
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suspended sentence. Tex. Code Crim. Proc. Ann. art. 42.03[,]
§ 2(b), art. 42.12[,] § 19(a) (West Supp. 2015). This Court has
consistently held that unpaid probation fees may be included as
reparations in judgments adjudicating guilt. See, e.g., Steen v.
State, No. 02-13-00559-CR, 2014 WL 4243702, at *2 (Tex. App.—
Fort Worth Aug. 28, 2014, pet. ref’d) (mem. op., not designated for
publication); Strange v. State, No. 02-14-00055-CR, 2014 WL
3868225, at *1 (Tex. App.—Fort Worth Aug. 7, 2014, no pet.) (mem.
op., not designated for publication) (citing Boyd v. State, No. 02-11-
00035-CR, 2012 WL 1345751, at *2 (Tex. App.—Fort Worth Apr. 19,
2012, no pet.) (mem. op., not designated for publication)); McKinney
v. State, No. 02-12-00479-CR, 2014 WL 1510095, at *1–2 (Tex.
App.—Fort Worth Apr. 17, 2014, pet. ref’d) [(mem. op., not
designated for publication)]; Brown v. State, No. 02-08-00063-CR,
2009 WL 1905231, at *2 (Tex. App.—Fort Worth July 2, 2009, no
pet.) (mem. op., not designated for publication).
The amount of the community supervision fees owed [was]
supplied by the Balance Sheet and the Certified Bill of Costs, both of
which are part of the record. This is sufficient evidence to support
the amount of $120 in community supervision fees assessed as
reparations. See Steen, 2014 WL 4243702 at *2 (holding that
certified bill of cost “was enough to support inclusion in the judgment
of $2,507 in statutorily-authorized, community-supervision fees”);
Houston v. State, 410 S.W.3d 475, 479 (Tex. App.—Fort Worth
2013, no pet.) (holding that certified bill of costs provided support in
the record for imposition of $570 in court costs owed by appellant);
Strother v. State, No. 14-12-00599-CV, 2013 WL 4511360, at *3–4
(Tex. App.—Houston [14th Dist.] Aug. 22, 2013, pet. ref’d) (mem.
op., not designated for publication); cf. Johnson v. State, 423
S.W.3d 385, 395–96 (Tex. Crim. App. 2014) (“[A]lthough a bill of
costs is not required to sustain statutorily authorized and assessed
court costs, it is the most expedient, and therefore, preferable
method.”).
Id. at *1–2 (emphasis added).
Our decision in Tucker resolves the principal questions presented here.
First, it forecloses appellant’s position that probation fees may not be included in
a judgment as reparations. See id. at *2 (collecting cases in which we concluded
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that probation fees may be reparations); see also Stuckey v. State, No. 07-14-
00082-CR, 2015 WL 5578498, at *1 (Tex. App.—Amarillo Sept. 22, 2015, pet.
ref’d) (holding similarly). Second, our Tucker decision precludes appellant’s
position that the State failed to prove that he owed the probation fees as
reparations; like in Tucker, the record in this case contains a certified bill of costs
stating that appellant owed the fees and a balance sheet prepared by the
community supervision and corrections department showing that he was $135 in
arrears. See 2016 WL 742087, at *2. These documents qualify as sufficient
evidence to support the reparations. Id.; see also Beard v. State, Nos. 09-13-
00391-CR, 09-13-00392-CR, 2013 WL 6705981, at *3 (Tex. App.—Beaumont
Dec. 18, 2013, no pet.) (mem. op., not designated for publication) (“[W]e
conclude that the revocation restitution/reparation balance sheet and bill of costs
. . . constitute sufficient evidence of the amount of administrative fees and court
costs owed . . . .”).
We also reject appellant’s argument that another document in the record,
titled “List of Fee Breakdowns,” precludes the assessment of reparations in the
judgment. That document, which was issued three days after the certification of
the bill of costs and on the same day as the balance sheet, shows a “0.00”
balance remaining on probation fees, but the document does not show whether
appellant owed reparations. We agree with the State that viewing the certified
bill of costs, the balance sheet, and the “List of Fee Breakdowns” collectively and
in the light most favorable to the award of reparations—see Mayer v. State, 309
10
S.W.3d 552, 557 (Tex. Crim. App. 2010); Beard, 2013 WL 6705981, at *3—the
evidence is sufficient to support the award.
The cases that appellant relies on to contest the reparations award are
distinguishable on their facts. For example, in Romine v. State, one of our sister
intermediate appellate courts held that the amount of reparations assessed in a
judgment was too high because the State conceded it was and because the
State’s revocation petition alleged a lower amount. No. 06-13-00071-CR, 2013
WL 4002610, at *2 (Tex. App.—Texarkana Aug. 6, 2013, no pet.) (mem. op., not
designated for publication). The State has made no such concession here, and
the State’s revocation petition in this case did not make any representation about
the amount of probation fees or reparations owed.
In Lewis v. State, another case that appellant relies on, we struck $320 in
reparations, relying on the State’s agreement that the reparations were $300 too
high and holding that no evidence in the record supported the additional $20 as a
crime stoppers fee. 423 S.W.3d 451, 459–60 (Tex. App.—Fort Worth 2013, pet.
ref’d). We held that there was “no evidence of any kind” that appellant failed to
pay the $20 fee. Id. at 460. We did not consider, as we did later in Tucker,
whether the district clerk’s bill of costs qualified as evidence supporting the fee.
In Strange, the final case relied upon by appellant as an analogue, the
State conceded that reparations should not have been included in the judgment.
2014 WL 3868225, at *1. We stated that the record did not contain evidence
“demonstrating that any fees were owed.” Id. Again, however, we did not
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discuss whether the district clerk’s certified bill of costs supported the
reparations. Cf. Weatherspoon v. State, No. 03-15-00236-CR, 2016 WL 286384,
at *3 (Tex. App.—Austin Jan. 22, 2016, no pet.) (mem. op., not designated for
publication) (“The statutory authority, coupled with the certified bill of costs,
provides a sufficient basis for the costs.”); Rahim v. State, No. 06-14-00147-CR,
2015 WL 2437509, at *4 (Tex. App.—Texarkana May 22, 2015, no pet.) (mem.
op., not designated for publication) (“Because the supplemental record contains
a bill of costs supporting the amount of court costs assessed, we find that there is
sufficient evidence to support the trial court’s assessment of court costs.”); Steen,
2014 WL 4243702, at *2 (“The certified bill of cost . . . was enough to support
inclusion in the judgment of $2,507 in statutorily-authorized, community-
supervision fees.”).
For all of these reasons, we conclude that the trial court did not violate
appellant’s right to due process by imposing the unpaid probation fees as
reparations in its judgment revoking community supervision. We overrule
appellant’s second point.
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Conclusion
Having overruled appellant’s two points, we affirm the trial court’s
judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 2, 2016
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