Kenneth Ray-Beck Clifford v. State ( 2016 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-16-00260-CR
________________________
KENNETH RAY-BECK CLIFFORD, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 52nd District Court
Coryell County, Texas
Trial Court No. 15-22919; Honorable Trent D. Farrell, Presiding
November 9, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE JJ.
In October 2015, pursuant to a plea bargain, Appellant, Kenneth Ray-Beck
Clifford, was convicted of possession of methamphetamine in an amount of less than
one gram and sentenced to two years confinement in a state jail facility and assessed a
$750 fine,1 suspended in favor of three years community supervision. In February
1
TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010).
2016, the State moved to revoke Appellant’s community supervision alleging six
violations of the conditions thereof. Specifically, the State alleged that Appellant (1)
committed the new offense of possession of a controlled substance, (2) failed to avoid
injurious and vicious habits, (3) failed to pay his fines and court costs as ordered, (4)
failed to pay restitution as ordered, (5) failed to pay his supervision fees, and (6) failed
to pay a fee to Crime Stoppers as ordered. Following a contested hearing on the
State’s motion, the trial court revoked Appellant’s community supervision and imposed
the original sentence of two years confinement, minus the fine and fees not otherwise
required by statute. By four issues, Appellant challenges the trial court’s judgment.
Specifically, he maintains the trial court abused its discretion in revoking community
supervision because (1) the evidence is insufficient to prove he possessed a controlled
substance based solely on a presumptive field test; (2) the evidence is insufficient to
prove he possessed methamphetamine without confirmation by a certified laboratory
examination; (3) there was no evidence he failed to avoid injurious and vicious habits by
virtue of his arrest for possession of a controlled substance; and (4) there was no
evidence the failure to pay fines, fees, and court costs was intentional or willful because
he was in custody at all relevant times. We affirm.
BACKGROUND
Appellant was arrested at a local Walmart after the loss prevention department
recognized him as the suspect in a recent theft. Appellant gave the arresting officers
consent to reach into his pockets where they found “a small pink Ziploc baggy that
contained a crushed up crystal-like substance.” The officer testified that in his
2
experience he suspected the substance was methamphetamine and a field test showed
a positive result for methamphetamine. The substance weighed 0.3 grams.
Appellant also possessed an orange straw with residue and a used hypodermic
needle with residue. He had a pharmacy bag with ten new hypodermic needles in his
shopping cart which he claimed he had just purchased for his friends who were still
methamphetamine users. He also claimed he was no longer using methamphetamine.
Appellant was arrested for possession of a controlled substance.
The State presented two witnesses at the hearing on its motion. One of the
arresting officers testified that the Texas Department of Public Safety crime lab tested
the substance and confirmed it was methamphetamine. The officer did not, however,
have the report with him at trial. The second witness, Appellant’s community
supervision officer, testified that based on his notes and records, Appellant was
delinquent in his community supervision fees, restitution, and Crime Stoppers fee. No
testimony was presented concerning whether Appellant failed to pay his fine as ordered
by the court. His last payment was made in February 2016 and following his arrest in
early March 2016, he made no further payments. During cross-examination, the
witness testified that in preparation for the hearing, records indicated Appellant still
owed $160 in “probation fees.”
At the conclusion of the hearing, the trial court revoked Appellant’s community
supervision and assessed the original term of incarceration. This appeal followed.2
2
Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this court by
the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. §73.001
(West 2013). We are unaware of any conflict between precedent of the Tenth Court of Appeals and that
of this court on any relevant issue. TEX. R. APP. P. 41.3.
3
STANDARD OF REVIEW
When reviewing an order revoking community supervision, the sole question
before this court is whether the trial court abused its discretion. Hacker v. State, 389
S.W.3d 860, 865 (Tex. Crim. App. 2013) (citing Rickels v. State, 202 S.W.3d 759, 763
(Tex. Crim. App. 2006)); Lindsey v. State, No. 10-15-00007-CR, 2016 Tex. App. LEXIS
8299, at *3 (Tex. App.—Waco Aug. 3, 2016, no pet.) (mem. op., not designated for
publication). In a revocation proceeding, the State must prove by a preponderance of
the evidence that the defendant violated a condition of community supervision as
alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App.
1993). 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 [community supervision].” Hacker, 389 S.W.3d
at 865 (citing Rickels, 202 S.W.3d at 764). The trial court abuses its discretion in
revoking community supervision if, as to every ground alleged, the State fails to meet its
burden of proof. Cardona v. State, 665 S.W.2d 492, 494 (Tex. Crim. App. 1984). In
determining the sufficiency of the evidence to sustain a revocation, we view the
evidence in the light most favorable to the trial court’s ruling. Jones v. State, 589
S.W.2d 419, 421 (Tex. Crim. App. 1979). One sufficient ground for revocation supports
the trial court’s order revoking community supervision. Smith v. State, 286 S.W.3d 333,
342 (Tex. Crim. App. 2009) (citing Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim.
App. 1978)).
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ISSUE ONE
Appellant maintains the trial court abused its discretion in revoking his community
supervision because the State failed to prove he possessed methamphetamine with
only a presumptive field test. At trial, the officer testified the field test result was positive
for methamphetamine. The State offered no further evidence concerning the nature of
the alleged controlled substance; however, on cross-examination the officer stated that
crime lab results from the Department of Public Safety confirmed that result. However,
the lab report was not produced and there was no expert testimony confirming the
substance Appellant possessed was methamphetamine. Appellant did not object to the
officer’s testimony or the lack of a crime lab report.
ANALYSIS
Appellant relies on Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977), to
support his argument that field test results are insufficient to prove he possessed a
controlled substance. Appellant acknowledges, however, that Curtis was decided when
unobjected-to hearsay had no probative value.
Now, under Rule 802 of the Texas Rules of Evidence, inadmissible hearsay
admitted without objection may not be denied probative value merely because it is
hearsay. TEX. R. EVID. 802; Willis v. State, 2 S.W.3d 397, 399 (Tex. App.—Austin 1999,
no pet.); Morgan v. State, No. 05-93-01012-CR, 1994 Tex. App. LEXIS 3961, at *5 (Tex.
App.—Dallas Sept. 30, 1994, no pet.) (mem. op., not designated for publication) (finding
that inadmissible hearsay admitted without objection at a revocation hearing may
constitute sufficient evidence to support a revocation order).
5
In what can hardly be described as a clearly-established violation of the terms
and conditions of community supervision,3 the officer did testify on direct examination
that Appellant possessed “a crushed up crystal-like substance,” which he suspected
was methamphetamine. He also testified that “the substance was tested using a field
test kit for methamphetamine which it did test positive for methamphetamine.”
Furthermore, on cross-examination, he stated that the “results came back tested
positive for methamphetamine.” Because no objection was lodged as to those
statements, they may not be denied probative value merely because they are hearsay.
Thus, albeit weak, the evidence supports revocation of Appellant’s community
supervision because a single violation of the conditions of community supervision is
sufficient. Smith, 286 S.W.3d at 342. Accordingly, we need not address the State’s
remaining allegations. See TEX. R. APP. P. 47.1.
CONCLUSION
The trial court’s nunc pro tunc judgment revoking Appellant’s community
supervision is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
3
While the trial court found that the State had met its burden as to “each and every allegation
contained in the pending motion,” the record falls short of establishing that conclusion.
6