Arthur Michael Palacios v. the State of Texas ( 2022 )

NO. 12-21-00066-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ARTHUR MICHAEL PALACIOS, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Appellant Arthur Michael Palacios appeals the revocation of his deferred adjudication
community supervision and the imposition of a fifteen-year prison sentence. In two issues,
Appellant contends (1) the trial court abused its discretion by not requiring him “to participate in
an intermediate sanction facility as a less-restrictive alternative to imprisonment” and (2) the trial
court improperly assessed a time payment fee and a warrant fee. We modify and affirm the trial
court’s judgment as modified.
BACKGROUND
Appellant was charged by indictment with the second-degree felony offense of burglary of
a habitation. Appellant waived a jury trial and pleaded “guilty” in an open plea. The trial court
found the evidence sufficient to find Appellant guilty, but deferred further proceedings and placed
Appellant on community supervision for ten years. The State subsequently filed a motion to
adjudicate guilt. The trial court conducted a hearing on the matter, at which Appellant pleaded
“true” to violating the terms and conditions of his community supervision. After the hearing, the
trial court found the allegations in the State’s motion to be “true,” revoked Appellant’s community
supervision, and sentenced Appellant to fifteen years of imprisonment. This appeal followed.
LESS RESTRICTIVE ALTERNATIVES
In his first issue, Appellant argues the trial court abused its discretion by failing to consider
less restrictive alternatives to imprisonment.
Standard of Review and Applicable Law
We review a trial court’s order revoking community supervision for an abuse of discretion.
Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); Quisenberry v. State, 88 S.W.3d
745, 749 (Tex. App.—Waco 2002, pet. ref’d). 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);
see also Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006). Proof of a single
violation of the terms of community supervision is sufficient to support revocation. Moore v.
State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980). The preponderance of the
evidence standard is met when the greater weight of the credible evidence supports a reasonable
belief that the defendant has violated a condition of community supervision. Rickels, 202 S.W.3d
at 763-64. If the State fails to meet its burden of proof, the trial court abuses its discretion in
revoking community supervision. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App.
1984).
We examine the evidence in the light most favorable to the trial court’s findings to
determine whether the evidence supports the findings. See Brooks v. State, 323 S.W.3d 893, 899
(Tex. Crim. App. 2010) (plurality op.) (explaining the legal sufficiency standard for reviewing a
jury’s verdict); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.
2d 560 (1979). At a hearing on a motion to revoke community supervision, the trial court is the
trier of fact and determines the weight and credibility of the testimony. See Diaz v. State, 516
S.W.2d 154, 156 (Tex. Crim. App. 1974); see also Montgomery v. State, 369 S.W.3d 188, 192
(Tex. Crim. App. 2012). When the record supports conflicting inferences, we presume the
factfinder resolved any such conflicts in favor of its findings. See Montgomery, 369 S.W.3d at
192.
Analysis
Appellant does not challenge the sufficiency of the evidence supporting the trial court’s
revocation of his community supervision. Appellant argues only that the trial court erred by
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imposing a sentence of imprisonment rather than a less restrictive alternative, such as an
intermediate sanctions facility to address his substance abuse.
Once a single violation of any condition of community supervision is established, trial
courts “enjoy broad discretion in deciding whether to continue, extend, modify, or revoke
community supervision.” Merino v. State, Nos. 13-19-00240-CR, 13-19-00241-CR, 2020 WL
3116351, at *3 (Tex. App.—Corpus Christi June 11, 2020, no pet.) (mem. op., not designated for
publication); see TEX. CODE CRIM. PROC. ANN. art. 42A.751(d) (West Supp. 2021); see also Ex
parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App. 1986), overruled on other grounds by State
v. Waters, 560 S.W.3d 651, 663 (Tex. Crim. App. 2018); Smith v. State, 587 S.W.3d 413, 419
(Tex. App.—San Antonio 2019, no pet.). The trial court’s broad discretion includes whether to
place a probationer in SAFPF 1 as an additional condition of continued community supervision.
Merino, 2020 WL 3116351, at *3. Courts have consistently deferred to a trial court’s discretion
to revoke community supervision over a probationer’s request for placement in SAFPF or a similar
facility. Merino, 2020 WL 3116351, at *3; Hodge v. State, Nos. 02-10-00050-CR, 02-10-00051-
CR, 2011 WL 2756540, at *2-3 (Tex. App.—Fort Worth July 14, 2011, pet. ref’d) (mem. op., not
designated for publication); Mathis v. State, No. 04-09-00075-CR, 2009 WL 3320270, at *2 (Tex.
App.—San Antonio Oct. 14, 2009, no pet.) (mem. op., not designated for publication); Marriott
v. State, No. 07-02-00203-CR, 2003 WL 22004084, at *2 (Tex. App.—Amarillo Aug. 25, 2003,
pet. ref’d) (mem. op., not designated for publication); Hawkins v. State, 112 S.W3d 340, 343-44
(Tex. App.—Corpus Christi 2003, no pet.).
Despite this clear deference to the trial court’s discretion, Appellant argues that “conditions
and sanctions should be tailored to the circumstances and needs of the individual defendant.”
Appellant urges that “[i]ntermediate sanction facilities are an important piece of the progressive
sanctions available for offenders who struggle with substance abuse[,]” and he maintains that the
least restrictive intervention should be imposed. Appellant contends that he did not commit any
violent crimes or use firearms or other weapons during his community supervision, and that “[t]his
is precisely the type of case that warrants implementation of additional, progressive sanctions
before revocation.” While we do not disagree with Appellant that there is a broad array of
alternatives to imprisonment in Texas, we cannot, based on the record, agree with Appellant that
the trial court abused its discretion in not utilizing one of those alternatives.
1
SAFPF is Substance Abuse Felony Punishment Facility.
3
Appellant pleaded “true” to all of the alleged violations in the State’s motion to adjudicate
guilt, which included failure to submit to numerous random urinalysis tests, failure to report to his
supervision officer, failure to attend Narcotics Anonymous meetings, and failure to complete the
Lifeskills Program. The trial court accepted Appellant’s pleas of true and found that the allegations
in the State’s motion to revoke were true. An appellant’s plea of “true,” standing alone, supports
revocation of his community supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App.
[Panel Op.] 1979). On this record, the trial court could reasonably determine that Appellant was
not a good candidate for continued community supervision or substance abuse counseling. See
Webster v. State, No. 07-20-00248-CR, 2021 WL 1899359, at *3-4 (Tex. App.—Amarillo May
11, 2021, no pet.) (mem. op., not designated for publication). As previously discussed, revocation
proceedings are “highly discretionary.” Merino, 2020 WL 3116351, at *4 (citing Waters, 560
S.W.3d at 661). Any one of Appellant’s numerous violations would have supported revocation of
his community supervision. See Merino, 2020 WL 3116351, at *4 (citing Moore v. State, 605
S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980)). Therefore, it was within the trial court’s
discretion to revoke Appellant’s community supervision and impose a fifteen-year sentence of
imprisonment. See id. We overrule issue one.
TIME PAYMENT FEE AND WARRANT FEE
In his second issue, Appellant argues that the trial court prematurely assessed a time
payment fee of $25 and improperly assessed a warrant fee of $50. The State concedes that the
time payment fee was prematurely assessed and joins Appellant’s request that we delete the time
payment fee; however, the State contends the warrant fee was properly assessed.
The bill of costs reflected a total of $314, which included a time payment fee of $25. “The
pendency of an appeal stops the clock for purposes of the time payment fee.” Dulin v. State, 620
S.W.3d 129, 133 (Tex. Crim. App. 2021). Consequently, assessment of the time payment fee in
Appellant’s case is premature and should be struck in its entirety, without prejudice to its being
assessed later if, more than thirty days after issuance of the appellate mandate, the defendant has
failed to completely pay any fine, court costs, or restitution that he owes. See id. Accordingly, we
sustain this portion of issue two and delete the time payment fee.
The bill of costs also includes a $50.00 “warrant fee.” The Texas Code of Criminal
Procedure requires a convicted defendant to pay certain fees to “defray the cost of services
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provided in the case by a peace officer.” TEX. CODE CRIM. PROC. ANN. art. 102.011(a) (West
Supp. 2021). Specifically, the statute requires a defendant to pay $5.00 for an arrest without a
warrant and $50.00 for executing or processing an issued arrest warrant, capias, or capias pro fine.
Id. art. 102.011(a)(1), (2).
Appellant argues that this Court should delete the warrant fee because “the record does not
demonstrate that Mr. Palacios’s arrest was pursuant to a warrant[]” and “no arrest warrants or
capiases appear in the record[.]” However, contrary to Appellant’s assertions, two capiases appear
in the record: one dated February 6, 2018, and the other dated February 2, 2021. Both capiases
were executed and returned served. We have the authority to modify a judgment to make the
record speak the truth when we have the necessary data and information to do so. See TEX. R.
APP. P. 43.2(b); Patterson v. State, 525 S.W.3d 896, 898 (Tex. App.—Tyler 2017, no pet.).
Therefore, the judgment and corresponding bill of costs should be modified to include a warrant
fee for each of the two capiases issued, an increase of $50, for a total warrant fee of $100. See
Martinez v. State, 510 S.W.3d 206, 207 (Tex. App.—Houston [1st Dist.] 2016, no pet.); see also
TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2). We overrule this portion of issue two.
DISPOSITION
Having sustained in part and overruled in part Appellant’s second issue and overruled
Appellant’s first issue, we modify the trial court’s judgment and bill of costs by striking the $25
time payment fee, without prejudice to it being assessed later, if more than thirty days after the
issuance of our mandate, Appellant fails to completely pay any fine, court costs, or restitution he
owes. We further modify the judgment and bill of costs to add an additional $50 warrant fee for
the second capias that was issued, resulting in a warrant fee of $100 and total costs of $339. See
TEX. R. APP. P. 43.2(b). We affirm the trial court’s judgment as modified.
BRIAN HOYLE
Justice
Opinion delivered March 23, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 23, 2022
NO. 12-21-00066-CR
ARTHUR MICHAEL PALACIOS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-0049-18)
THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that the judgment of the court below
should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be modified by striking the $25 time payment fee, without prejudice to it being
assessed later if, more than thirty days after the issuance of our mandate, Appellant fails to
completely pay the fine, court costs, or restitution he owes; and we modify the judgment and bill
of costs to add an additional $50 warrant fee for the second capias issued; resulting in a warrant
fee of $100 and total costs of $339; in all other respects the judgment of the trial court is affirmed;
and that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.