James Patrick Smith v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-381-CR
JAMES PATRICK SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant James Patrick Smith appeals his adjudication of guilt for
violating conditions of his community supervision. In six points, Appellant
argues the trial court abused its discretion by revoking his community
1
 See Tex. R. App. P. 47.4.
supervision and imposing an eighty-year sentence. We will affirm the trial
court’s judgment.
II. Factual and Procedural Background
In April 2005, a grand jury indicted Appellant of eight counts of
aggravated sexual assault and one count of indecency with a child. Appellant
pleaded guilty on November 13, 2007, to one count of aggravated sexual
assault. The trial court placed Appellant on ten years’ deferred adjudication
community supervision. The conditions of Appellant’s community supervision
prohibited him from drinking alcohol.
Appellant attended a sex offender treatment session in late March 2008
with the smell of alcohol on his breath and, at the time, admitted to drinking “a
beer or half a beer prior to attending treatment.” 2 During a later review of this
violation with his community supervision officer, Jeremy Thompson, Appellant
admitted to having “approximately two-and-a-half beers” before attending the
sex offender treatment session. In June and July, Appellant made multiple
admissions to Thompson that he drank alcohol, including one admission that he
“regularly consumed a fifth of whiskey and approximately six or seven six-
2
 Appellant’s community supervision officer testified this event occurred
a week or two before he took over Appellant’s case in the first week of April
2008.
2
packs of beer every—in every two-week period. At that time, [Appellant] said
it was representative of how much he drank while on probation.” On June 12,
2008, Thompson filed a Courtesy Supervision Progress Report requesting the
Montague County district attorney to consider pursuing revocation of
Appellant’s community supervision.
On July 24, 2008, the State filed a motion to proceed with adjudication
of guilt and alleged that Appellant violated conditions of his community
supervision by: (1) consuming alcohol on or about March 17, 2008, and (2)
having contact with a minor child. The trial court held a hearing on the State’s
motion on October 13, 2008, and Appellant entered pleas of “not true” to both
allegations. During the hearing, Thompson testified that a July 23, 2008
conversation with Appellant “implied that [Appellant] was continuing to drink.” 3
After hearing the evidence, the trial court found that on or about March
17, 2008, Appellant violated a condition of his community supervision by
consuming alcohol. 4 The court revoked Appellant’s community supervision and
adjudicated Appellant guilty of the felony offense of aggravated sexual assault.
3
 Thompson testified that his last contact with Appellant occurred July
23, 2008. Thompson transferred from the Sex Offender Unit of the Tarrant
County Adult Probation Department on July 31, 2008.
4
 The trial court did not find the second allegation, contact with a minor
child, to be true.
3
On October 14, 2008, the trial court sentenced Appellant to eighty years’
imprisonment. 5
III. Analysis
A. Standard of Review
We review an order revoking community supervision under an abuse of
discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.
1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983);
Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet.
ref’d). In a revocation proceeding, the State must prove by a preponderance
of the evidence that the defendant violated the terms and conditions of
community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.
1993); Cherry, 215 S.W.3d at 919. This standard is met when the greater
weight of the credible evidence creates a reasonable belief that the defendant
violated a condition of his community supervision as the State alleged.
Allbright v. State, 13 S.W.3d 817, 819 (Tex. App.—Fort Worth 2000, pet.
ref’d). 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
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 The trial court assessed punishment one day after the hearing on the
State’s motion to revoke community supervision so that an updated
Presentence Investigation Report could be prepared, submitted, and reviewed
by Appellant and the State.
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most favorable to the trial court’s ruling. Cardona, 665 S.W.2d at 493; Garrett
v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Cherry,
215 S.W.3d at 919. If the State fails to meet its burden of proof, the trial
court abuses its discretion by revoking the community supervision. Cardona,
665 S.W.2d at 493–94. Proof by a preponderance of the evidence of any one
of the alleged violations of the conditions of community supervision is sufficient
to support a revocation order. Moore v. State, 605 S.W.2d 924, 926 (Tex.
Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex.
Crim. App. [Panel Op.] 1980).
B. Delay in Reporting Violation Does Not Preclude Revocation
In the first half of Appellant’s first point, he contends the trial court
abused its discretion by hearing evidence of Appellant’s alleged violation of his
“no alcohol” community service condition in March 2008 because Thompson
did not report Appellant’s alleged violation to the court for three months.
A judge may issue a warrant for violation of any of the conditions of the
community supervision at any time during the period of community
supervision—regardless of the delay in reporting the alleged violation. See Tex.
Code Crim. Proc. Ann. art. 42.12, § 21(b) (Vernon Supp. 2009); Flournoy v.
State, 589 S.W.2d 705, 709 (Tex. Crim. App. 1979) (holding that “a
subsequent arrest on order of the court rendered within the period of probation
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is in conformity with [article 42.12, section 21(b)] even though there is a delay
in reporting the alleged violation to the court”); Miller v. State, 330 S.W.2d
466, 468 (Tex. Crim. App. 1959) (holding that probation officer’s five-month
delay in reporting appellant’s violation did not preclude its use as a basis for
revocation).
Thomas testified that on four different occasions, Appellant admitted to
drinking alcohol while on deferred adjudication probation in violation of a
condition of his community supervision. With each admission, the amount,
frequency, or duration of alcohol consumption increased. Any one of these
admissions is sufficient to affirm the trial court’s revocation of Appellant’s
deferred adjudication community supervision at any time during Appellant’s
community supervision. See Moore, 605 S.W.2d at 926; Sanchez, 603
S.W.2d at 871.
Based on the evidence detailed above, the trial court could have formed
a reasonable belief that Appellant violated a term of his community supervision
by drinking alcohol. Because the trial court did not abuse its discretion by
permitting the State to present evidence of Appellant’s violation of a condition
of his community supervision, we overrule the first half of Appellant’s first
point.
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In the second half of Appellant’s first point, Appellant argues we should
reverse the trial court’s revocation of his community supervision because he did
not violate the Texas Penal Code. However, a trial court may revoke an
appellant’s community supervision because an appellant violates the Texas
Penal Code or a condition of his community supervision. See Tex. Code Crim.
Proc. Ann. art. 42.12, §§ 21–23 (Vernon Supp. 2009); see Moore, 605
S.W.2d at 926; Sanchez, 603 S.W.2d at 871; see also Coffel v. State, 242
S.W.3d 907, 909 (Tex. App.—Texarkana 2007, no pet.) (“On proof that the
defendant has violated one of the terms of [community supervision], the trial
court may, at a proper revocation hearing, . . . revoke the probationer’s
community release.”).
As previously explained, the trial court could have formed a reasonable
belief that Appellant violated a term of his community supervision by drinking
alcohol. Thus, the trial court did not abuse its discretion by revoking
Appellant’s community supervision. We overrule the second half of Appellant’s
first point.
C. Appellant Received Due Process Protections
In his second point, Appellant contends the trial court abused its
discretion by allowing Appellant’s admissions during treatment to be used to
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revoke his community supervision in violation of his due process right under the
U.S. Constitution.
A probationer is entitled to certain due process protections in the
revocation proceedings. Bradley v. State, 564 S.W.2d 727, 729–30 (Tex.
Crim. App. 1978); Moore v. State, 11 S.W.3d 495, 499 (Tex. App.—Houston
[14th Dist.] 2000, no pet.). In Gagnon v. Scarpelli, the Supreme Court
extended the due process protections to state probation revocation
proceedings, recognizing that revocation of probation deprives an individual of
a conditional liberty. 411 U.S. 778, 782, 94 S. Ct. 1756, 1759–60 (1973);
see Diaz v. State, 172 S.W.3d 668, 671 (Tex. App.—San Antonio 2005, no
pet.). Specifically, due process in a probation revocation proceeding entitles the
probationer to (1) written notice of the claimed violations of his probation, (2)
disclosure of the evidence against him, (3) an opportunity to be heard in person
and to present witnesses and documentary evidence, (4) a neutral hearing
body, (5) the opportunity to cross-examine adverse witnesses, and (6) a written
statement by the factfinder as to the evidence relied on and the reasons for
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revoking probation. 6 Black v. Romano, 471 U.S. 606, 611–12, 105 S. Ct.
2254, 2258 (1985).
Appellant does not explain in his brief how the trial court violated his due
process protections under Black, nor does he cite to the record as support for
his contention. Appellant simply argues that the “[a]pplication of probation
standards to deferred adjudication is fundamentally unfair,” and that “deferred
adjudication should be afforded the full range of right[s] afforded a defendant
under the due process clause of the Fourteenth Amendment.” Appellant fails
to cite any relevant authority, from this jurisdiction or from any other, to
support this argument. Therefore, we deem this point inadequately briefed.
Tex. R. App. P. 38.1(i); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App.
2000), cert. denied, 532 U.S. 1053 (2001). We overrule Appellant’s second
point.
D. Appellant’s Admissions Not Compelled or Inadmissible
In his third and fourth points, Appellant contends the trial court abused
its discretion by permitting his admissions of alcohol use to his probation officer
to be used as evidence against him during the revocation hearing. Specifically,
6
 Appellant did not request written findings of fact or conclusions of
law. See King v. State, 649 S.W.2d 42, 46 (Tex. Crim. App. 1983); Gonzales
v. State, Nos. 05-07-01710-CR & 05-07-01711-CR, 2009 WL 294851, at *5
(Tex. App.—Dallas Feb. 9, 2009, no pet.) (not designated for publication).
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Appellant argues the admissions were compelled and inadmissible under both
the Fifth Amendment and the Texas constitution.
Appellant makes no effort to distinguish the self-incrimination rights,
protections, and privileges afforded by the U.S. Constitution from those
guaranteed by the state constitution. When briefing constitutional issues, a
party should separate federal and state issues into distinct points or issues and
provide substantive argument on each. McCambridge v. State, 712 S.W.2d
499, 501 n.9 (Tex. Crim. App. 1986). If a party does not do this, we need not
address federal and state constitutional issues separately. Eldridge v. State,
940 S.W.2d 646, 650–51 (Tex. Crim. App. 1996). Therefore, because the
state constitution gives no greater rights against self-incrimination than does
the U.S. Constitution, we will address Appellant’s third and fourth points solely
under the U.S. Constitution. See Olson v. State, 484 S.W.2d 756, 762 (Tex.
Crim. App.1972) (op. on reh’g); Carroll v. State, 68 S.W.3d 250, 253 n.3 (Tex.
App.—Fort Worth 2002, no pet.); see also Wood v. State, 18 S.W.3d 642,
648 n.5 (Tex. Crim. App. 2000) (stating that where appellant’s brief makes no
distinction between federal and state protections, the court reviews federal
only).
A person may not be compelled to make an incriminating statement. U.S.
Const. amend. V. However, this privilege against self-incrimination must be
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invoked in all but a few specific situations in order for an individual to claim his
statement was compelled. Chapman v. State, 115 S.W.3d 1, 6 (Tex. Crim.
App. 2003). Appellant acknowledges he did not assert his right against self-
incrimination before telling Thompson about drinking alcohol. Therefore, we
must determine whether the facts of this case fall within “the classic penalty
situation” relieving an individual of the obligation to assert the Fifth Amendment
privilege. See id.
In the classic penalty situation, a person is threatened with punishment
for asserting his privilege against self-incrimination, depriving him of his choice
to refuse to answer. Id. (citing Garrity v. New Jersey, 385 U.S. 493, 496, 87
S. Ct. 616, 618 (1967)). In the context of a community supervision situation,
“[t]he critical inquiry is whether a state has gone beyond merely requiring a
probationer to appear and speak on matters relevant to his probationary status,
or ‘whether [it goes] further and require[s] him to choose between making
incriminating statements and jeopardizing his conditional liberty by remaining
silent.’“ Id. at 7–8 (quoting Minnesota v. Murphy, 465 U.S. 420, 436, 104 S.
Ct. 1136, 1147 (1984)). In Murphy, the Supreme Court held that a probation
condition requiring a probationer to be truthful with his probation officer did not
present a classic penalty situation. Murphy, 465 U.S. at 439, 104 S. Ct. at
1148. In making this determination, the Court considered the following factors:
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(1) the obligation was similar to the obligation of a trial witness compelled to
appear who must answer truthfully under penalty of perjury, or assert his Fifth
Amendment privilege; (2) the probation terms were silent as to the
consequences should a probationer assert his Fifth Amendment privilege; (3)
there was no evidence the incriminating statements were made because the
probationer was threatened with revocation; and (4) even if the probationer
believed his probation could be revoked for invoking the privilege, this belief
would not have been objectively reasonable because the State cannot carry out
a threat to revoke probation for invoking the privilege. Murphy, 465 U.S. at
436–39, 104 S. Ct. at 1147–49.
In this case, there is no indication that anyone expressly or impliedly
stated that Appellant’s community supervision would be revoked if he exercised
his privilege against self-incrimination. His community supervision required him
to meet monthly with Thompson and to permit Thompson to visit him at his
home or elsewhere. But, here, as in Murphy, there was no mention of the
consequences of invoking his Fifth Amendment privilege during these meetings
and visits. See id. at 437, 104 S. Ct. at 1147. Further, Appellant does not
claim that he made the incriminating statements because he was threatened
with community supervision revocation, that his admissions were responses to
direct questions, or that he was expressly informed that refusing to divulge the
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incriminating information would result in the imposition of a penalty. See id. at
437–38, 104 S. Ct. at 1147–48. Additionally, any belief by Appellant that his
community supervision would be revoked for invoking his Fifth Amendment
right would not have been objectively reasonable because the State could not
legitimately revoke his probation for that reason. See id. at 438, 104 S. Ct. at
1148. Because there is no evidence Appellant would have been subject to an
automatic penalty had he invoked his Fifth Amendment right, Appellant was
required to assert the privilege. Chapman, 115 S.W.3d at 11. Because he did
not invoke his right against self-incrimination, Appellant’s statement was not
compelled within the meaning of the Fifth Amendment. Id. at 3. Therefore, we
hold the trial court did not abuse its discretion by admitting testimony of
Appellant’s admissions. Accordingly, we overrule Appellant’s third and fourth
points.
E. Testimonial Evidence Sufficient to Support Revocation
In his fifth point, Appellant contends the trial court abused its discretion
by revoking his community supervision because Thompson’s testimony was too
inconsistent for the court to find facts supporting revocation on the grounds
that Appellant consumed alcohol on or about March 17, 2008.
A trial court may accept or reject any or all of a witness’s testimony.
Allbright, 13 S.W.3d at 819. Thompson testified Appellant attended a sex
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offender treatment session in late March 2008 with the smell of alcohol on his
breath and, at the time, admitted to drinking “a beer or half a beer prior to
attending treatment.” Thompson also testified Appellant later admitted to
having “approximately two-and-a-half beers” before attending the session. In
June and July, Appellant made multiple admissions to Thompson that he drank
alcohol, including one admission by Appellant that he “regularly consumed a
fifth of whiskey and approximately six or seven six-packs of beer every—in
every two-week period. At that time, he said it was representative of how
much he drank while on probation.” Each of Appellant’s admissions increased
the amount, frequency, or duration of alcohol he consumed.
The second condition of the trial court’s order imposing community
supervision stated that Appellant was not to drink alcohol. Based on
Thompson’s testimony, the trial court could have formed a reasonable belief
that Appellant violated a term of his community supervision by drinking alcohol
on or about March 17, 2008. A finding of a single violation of community
supervision is sufficient to support revocation. See Sanchez, 603 S.W.2d at
871. Therefore, the trial court did not abuse its discretion by revoking
Appellant’s community supervision. We overrule Appellant’s fifth point.
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F. Appellant Failed to Object to Punishment at Revocation Hearing
In Appellant’s final point, he complains the trial court abused its discretion
by sentencing him to eighty years’ imprisonment. We agree with the State that
this issue is not properly before us because Appellant did not object or
otherwise raise the alleged error in the trial court. 7 See Tex. R. App. P.
33.1(a)(1); Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986);
see also Thompson v. State, 243 S.W.3d 774, 776 (Tex. App.—Fort Worth
2007, pet. ref’d) (holding that appellant forfeited his complaint regarding his
post-adjudication sentence because he did not object at trial or present his
motion for new trial); Davis v. State, No. 02-04-00132-CR, 2005 WL 627104,
at *1 (Tex. App.—Fort Worth Mar. 17, 2005, pet. ref’d) (mem. op., not
designated for publication) (holding that appellant forfeited his complaint
regarding his sentence because he did not object at trial); Rodriguez v. State,
917 S.W.2d 90, 92 (Tex. App.—Amarillo 1996, pet. ref’d) (stating that error
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 Even assuming this point was properly before us, we would overrule
Appellant’s sixth point. Section 12.32 of the penal code states that a person
adjudicated guilty of a first degree felony shall be punished by confinement in
the Texas Department of Criminal Justice for life or for any term of not more
than ninety-nine years or less than five years. Tex. Penal Code Ann. § 12.32(a)
(Vernon 2009). It is clear the punishment assessed by the trial court fell within
the range of punishment established by law, and a penalty imposed within the
range prescribed by the legislature will not be disturbed on appeal. Nunez v.
State, 565 S.W.2d 536, 538 (Tex. Crim. App. 1978).
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was not preserved for review because appellant failed to raise the severity of
his sentence when punishment was assessed and failed to file a motion for new
trial). Therefore, we must overrule Appellant’s sixth point.
IV. Conclusion
Having overruled each of Appellant’s six points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: CAYCE, C.J.; GARDNER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 17, 2009
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