Wendell Marcel Bradford v. State ( 2002 )

  















In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-02-00062-CR ______________________________



WENDELL MARCEL BRADFORD, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 115th Judicial District Court Upshur County, Texas Trial Court No. 11,823

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Before Morriss, C.J., Grant and Ross, JJ. Opinion by Justice Grant

O P I N I O N

Wendell Marcel Bradford appeals the revocation of his community supervision. On February 27, 1997, Bradford pleaded guilty to aggravated assault. Pursuant to a Plea Bargain Agreement, the trial court sentenced Bradford to ten years' community supervision. On August 22, 2000, the State filed a Motion to Revoke Bradford's community supervision. The trial court heard evidence and arguments on the Motion to Revoke on January 25, 2002. The trial court found all the allegations in the motion to be true, revoked Bradford's community supervision, and sentenced Bradford to ten years' imprisonment.

In his first point of error, Bradford contends the trial court erred by sentencing him without first ordering a substance abuse evaluation. Article 42.12, § 9(h) provides that when the judge determines

[T]hat alcohol or drug abuse may have contributed to the commission of the offense, . . . the judge shall direct a supervision officer approved by the community supervision and corrections department or the judge or a person, program, or other agency approved by the Texas Commission on Alcohol and Drug Abuse, to conduct an evaluation to determine the appropriateness of, and a course of conduct necessary for, alcohol or drug rehabilitation for a defendant and to report that evaluation to the judge.

Tex. Code Crim. Proc. Ann. art. 42.12, § 9(h) (Vernon Supp. 2002).

A substance abuse evaluation, also commonly called a "SASSI" test, was ordered in 1997 as a condition of Bradford's community supervision. Thus, the trial court complied with the requirements of Article 42.12, § 9(h)(4) at the time it accepted Bradford's guilty plea and the Plea Bargain Agreement. The issue then becomes whether Article 42.12, § 9(h)(3) requires a second evaluation before sentencing Bradford after the trial court had determined it would revoke Bradford's community supervision. To answer that question, we must analyze what is actually required by the statute.

"When interpreting a statute, we look to the literal text of the statute for its meaning, and ordinarily give effect to that plain meaning. We go beyond the literal language of the statute only when 'the plain language of [the] statute would lead to absurd results, or if the language is not plain but rather ambiguous.'" Ex parte Russell, 60 S.W.3d 875, 876 (Tex. Crim. App. 2001) (quoting Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991)). "In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue, judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished." Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992).

Article 42.12, § 9(h) requires the evaluation to be made

• after arrest and before conviction, if requested by the defendant;
• after conviction and before sentencing, if the judge assesses punishment in the case;
• after sentencing and before the entry of a final judgment, if the jury assesses punishment in the case; or
• after community supervision is granted, if the evaluation is required as a condition of community supervision under . . . this article.

(Emphasis added.) The disjunctive conjunction "or," written between subsections three and four, is important in this statute; use of the word "or" means the statute may be satisfied in any one of four ways. If a defendant requests an evaluation before sentencing and the trial court grants the defendant's request, the statute is satisfied. There is no need to require a trial court to order another evaluation after a defendant pleads guilty, but before the court sentences the defendant when the trial court receives the evaluation results at the time of the guilty plea.

In Bradford's case, a plain reading of the statute indicates the trial court met the requirements of Article 42.12, § 9(h) when it first ordered a substance abuse evaluation (This does not mean the trial court cannot order another evaluation if the court deems one is needed.). An evaluation had already been ordered as a condition of Bradford's felony probation, the result of which, presumably, was part of the community supervision officer's file and available to the trial court at the time of sentencing. Additionally, there was no indication at the revocation hearing that Bradford had a substance abuse problem. He had denied any substance abuse to his community supervision officer. And although Bradford had recently been arrested for driving while intoxicated (DWI), an arrest for an alcohol-related crime, though troubling, is not a per se indicia of alcoholism. We overrule Bradford's first point of error.

In his second point of error, Bradford alleges the trial court erred by failing to order a presentence investigation (PSI) report before sentencing him. Bradford avers that his "Authorization for Judge To Review Presentence Investigation Report Prior To Determination of Guilt" is a request for a PSI report. That authorization was filed on February 28, 1997, almost five years before the revocation hearing.

Article 42.12, § 9 of the Texas Code of Criminal Procedure requires the trial court to order the preparation of a PSI report when one is timely requested by the defendant. Whitelaw v. State, 29 S.W.3d 129 (Tex. Crim. App. 2000). In this case, there is no evidence that Bradford requested a PSI report at any time after being placed on community supervision and before, or during, the revocation hearing. Therefore, Bradford failed to trigger the requirements of Article 42.12, § 9.

Additionally, we do not believe the 1997 authorization for the trial court to review a PSI report qualifies as a timely request for a PSI report. Bradford's second point of error is overruled.

We affirm the trial court's judgment.

Ben Z. Grant

Justice

  Date Submitted: August 30, 2002

Date Decided: September 19, 2002

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evidence in a light most favorable to the trial court's order. Id. (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981)). Thus, if the greater weight of credible evidence creates a reasonable belief a defendant has violated a condition of his or her community supervision, the trial court's order of revocation did not abuse its discretion and must be upheld. Id. (citing Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)).

To revoke community supervision, the State must prove every element of at least one ground for revocation by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 42.12, §§ 10-11 (Vernon Supp. 2008); Johnson v. State, 943 S.W.2d 83, 85 (Tex. App.--Houston [1st Dist.] 1997, no pet.). Here, if the State proved by a preponderance of the evidence that Simmons consumed any alcohol, revocation was proper. The State introduced Lang's testimony that Simmons experienced difficulty keeping her balance, had red eyes, slurred speech, failed a field-sobriety test, and reeked of alcohol. Lang also testified that Webster reported Simmons had been drinking, and Simmons admitted to the same. Yet, Simmons took the stand at the revocation hearing and testified she did not tell Lang she was drinking, had not consumed any alcohol, and crashed the vehicle only because her tire blew out. She stated the appearance of intoxication was caused by stress of her aunt's death the day before and Simmons's existing medical conditions. Simmons also denied having children present in the vehicle even though Webster's testimony and witnesses at the scene established there were two minors in the van.

In a revocation hearing, the trial judge is the sole trier of the facts and determines the credibility of the witnesses and the weight to be given to the testimony. Johnson, 943 S.W.2d at 85; Lee v. State, 952 S.W.2d 894, 897 (Tex. App.--Dallas 1997, no pet.). In its broad discretion, the trial court could have chosen to disbelieve Simmons's testimony. Thus, as acknowledged by Simmons's counsel at the hearing, despite Simmons's denials, the trial court was well justified in revoking community supervision based on Lang's testimony. Palafox v. State, 509 S.W.2d 846, 848 (Tex. Crim. App. 1974) (revoking probation based on testimony of officer with eighteen years of experience who determined defendant was intoxicated, smelled strongly of alcohol, and had slurred speech).

V. Conclusion

We find that the evidence is sufficient to prove Simmons violated the terms of her community supervision and that she waived issues of fair notice and ambiguities regarding conditions of her community supervision.

Therefore, we affirm the judgment of the trial court.

Bailey C. Moseley

Justice

Date Submitted: October 15, 2008

Date Decided: October 16, 2008

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1. The very language of this condition is commonly used and understood in Texas courts. Vale v. State, 486 S.W.2d 370, 371 (Tex. Crim. App. 1972). The first part of it ("avoid injurious or vicious habits") is included in Article 21.12, Section 11(a)(2) of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 21.12, § 11(a)(2) (Vernon Supp. 2008).