Thomas Clay Dickerson v. State ( 2020 )

Opinion filed October 30, 2020
In The
Eleventh Court of Appeals
__________
No. 11-18-00268-CR
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THOMAS CLAY DICKERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 39th District Court
Stonewall County, Texas
Trial Court Cause No. 1972
MEMORANDUM OPINION
Appellant, Thomas Clay Dickerson, pleaded guilty to the offense of burglary
of a building. Pursuant to the terms of a plea agreement, the trial court convicted
Appellant of the offense, assessed his punishment at confinement for two years and
a fine of $1,500, suspended the confinement portion of the sentence, and placed
Appellant on community supervision for four years. The State later filed a motion
to revoke community supervision, alleging three violations of the terms of
community supervision. After a contested hearing on revocation, the trial court
orally announced that it found one of the alleged violations to be true. However, in
its written judgment revoking community supervision, the trial court found all three
alleged violations to be true. The trial court revoked Appellant’s community
supervision and imposed the original sentence of confinement in a state jail facility
for two years. We affirm.
In two issues on appeal, Appellant challenges the revocation of community
supervision. Both of Appellant’s issues only address the single violation that the
trial court orally announced at the conclusion of the hearing. That violation
concerned an allegation that Appellant had committed the offense of assault while
on community supervision. The State also alleged that Appellant had failed to
contact and report to the community supervision department at various times.
As we previously noted, the trial court found all three alleged violations to be
true in its written judgment revoking community supervision. The violations found
to be true in the written judgment revoking community supervision control over the
trial court’s oral findings at the revocation hearing. Coffey v. State, 979 S.W.2d 326,
328 (Tex. Crim. App. 1998) (“[T]he written findings of the court control over an
oral announcement.”); Eubanks v. State, 599 S.W.2d 815, 817 (Tex. Crim. App.
1980); Ex parte Bolivar, 386 S.W.3d 338, 345–46 (Tex. App.—Corpus Christi–
Edinburg 2012, no pet.) (“A written order revoking community supervision controls
over an oral pronouncement by the trial judge.”); see also Leal v. State, No. 03-15-
00095-CR, 2015 WL 8604431, at *1 (Tex. App.—Austin Dec. 10, 2015, no pet.)
(mem. op., not designated for publication) (“It is well settled that a written order
revoking community supervision controls over the oral pronouncement.”). We
further note that the trial court did not find the other alleged violations were not
true—it simply did not make any oral finding on those alleged violations. Thus, the
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trial court’s oral finding did not conflict with the written findings. See Leal, 2015
WL 8604431, at *1.
We review a trial court’s decision to revoke community supervision under an
abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The State
must prove a violation of the terms and conditions of community supervision by a
preponderance of the evidence, and proof of any one of the alleged violations is
sufficient to uphold the trial court’s decision to revoke. Cardona, 665 S.W.2d at
493 (burden of proof is by a preponderance of the evidence); Moore v. State, 605
S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980) (“one sufficient ground for
revocation will support the court’s order to revoke probation”); Jones v. State, 472
S.W.3d 322, 324 (Tex. App.—Eastland 2015, pet. ref’d). Accordingly, “to prevail
on appeal, the defendant must successfully challenge all of the findings that support
the revocation order.” Silber v. State, 371 S.W.3d 605, 611 (Tex. App.—Houston
[1st Dist.] 2012, no pet.). If a defendant does not challenge all of the grounds on
which his community supervision was revoked, the trial court’s judgment revoking
his community supervision should be affirmed. See Baxter v. State, 936 S.W.2d
469, 472 (Tex. App.—Fort Worth 1996) (per curiam), pet. dism’d, 960 S.W.2d 82
(Tex. Crim. App. 1998); see also Jimenez v. State, No. 01-06-01101-CR, 2007 WL
3105814, at *1 (Tex. App.—Houston [1st Dist.] Oct. 25, 2007, no pet.) (mem. op.,
not designated for publication).
On appeal, Appellant only challenges the trial court’s finding that he
committed an assault while on community supervision. He has not challenged the
findings that he violated the contact and reporting requirements of his community
supervision. We must affirm the judgment revoking community supervision
because Appellant has not challenged the additional violations contained in the
written findings.
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Moreover, we disagree with Appellant’s contentions regarding the evidence
that he committed an assault while on community supervision. In his first issue,
Appellant contends that the State failed to establish, by a preponderance of the
evidence, that Appellant had violated the terms of his community supervision. In
his second issue, Appellant asserts that the grand jury’s return of a “no-bill” on the
alleged assault prevented the State from later using it as a basis for revoking his
community supervision. Appellant’s evidentiary challenge is premised on the no-
bill. We disagree with both contentions.
The duty of a grand jury is to determine whether evidence exists to charge a
person formally with an offense. Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim.
App. 1996). “A Grand Jury’s no-bill is merely a finding that the specific evidence
brought before the particular Grand Jury did not convince them to formally charge
the accused with the offense alleged.” Id. Thus, a prior no-bill for the charged
offense is not material in any way to the defense of a case, and evidence of a grand
jury’s once having no-billed the charged offense was properly excluded. Smith v.
State, 474 S.W.2d 486, 489 (Tex. Crim. App. 1971). Even though the standard for
a return of a true-bill by a grand jury is low, its return of a no-bill has no evidentiary
value because there is no way to determine what specific evidence was brought
before the grand jury. Accordingly, we disagree with Appellant’s contention that
the no-bill from the grand jury precluded the trial court from concluding that the
evidence presented at the revocation hearing established that Appellant committed
an assault.
Deputy Brian Shields of the Stonewall County Sheriff’s Department testified
that on May 20, 2018, he responded to a reported death at the Dickerson residence
in Swenson. When Deputy Shields arrived, there was a group of people, including
Appellant, standing by the house. Deputy Shields got out of his vehicle, and the
group of people told him to leave. The group informed him that they only wanted
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EMT personnel to report to the scene and not law enforcement. Deputy Shields
testified that Appellant “came at” him during the melee, taking a swing at the deputy.
However, the swing missed Deputy Shields but connected with an EMT at the scene.
Rebecca Durham is an EMT with the Stonewall County Ambulance Service.
She was dispatched to the scene because of a reported death at the property. Durham
testified that after she arrived, as she was walking toward Appellant’s deceased
brother, Appellant accidentally struck her abdomen instead of Deputy Shields.
Durham, who was pregnant at the time, said that she became nauseous and dizzy.
Durham required hospitalization in order to be evaluated.
Appellant testified that he never hit Durham and that she was lying. After
both sides rested, the trial court announced that it found sufficient evidence that
Appellant had violated the terms of his community supervision by committing
assault.
The trial court abuses its discretion by revoking community supervision if the
State failed to meet its burden of proof. Cardona v. State, 665 S.W.2d at 493–94;
Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974). “[A]n order
revoking probation must be supported by a preponderance of the evidence; in other
words, that greater weight of the credible evidence which would create a reasonable
belief that the defendant has violated a condition of his probation.” Scamardo, 517
S.W.2d at 298. The trial court is the sole trier of the facts, the credibility of the
witnesses, and the weight given to their testimony. Naquin v. State, 607 S.W.2d
583, 586 (Tex. Crim. App. 1980).
An appellate court must view the evidence presented at a revocation hearing
in the light most favorable to the trial court’s ruling. Garrett v. State, 619 S.W.2d
172, 174 (Tex. Crim. App. 1981). Even if the State later dismisses the offense or if
the defendant is later acquitted, the trial court does not abuse its discretion by
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revoking the probation. Beck v. State, 492 S.W.2d 536, 537 (Tex. Crim. App. 1973);
Russell v. State, 551 S.W.2d 710, 714 (Tex. Crim. App. 1977).
Viewing the evidence presented at the revocation hearing in the light most
favorable to the trial court’s ruling, we conclude that the finding that Appellant
committed an assault is supported by the preponderance of the evidence. The trial
court was able to assess the credibility of the witnesses and to resolve any
inconsistencies in their testimony. Accordingly, we overrule Appellant’s two issues
on appeal.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
October 30, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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