Darius Allen v. the State of Texas ( 2023 )

Affirmed and Memorandum Opinion filed June 22, 2023
In The
Fourteenth Court of Appeals
NO. 14-21-00419-CR
DARIUS ALLEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1551047
MEMORANDUM OPINION
Appellant Darius Allen was sentenced to deferred adjudication for a period of
four years for the offense of aggravated assault with a deadly weapon. The State
subsequently moved to revoke appellant’s community supervision. Following a
hearing, the trial court found one of the allegations in the State’s motion to be true,
revoked appellant’s community supervision, adjudicated him guilty of the offense
of aggravated assault with a deadly weapon, and sentenced him to two years’
imprisonment. Appellant appeals the revocation of his community supervision,
contending that (1) there was insufficient evidence that he violated the terms and
conditions of his community supervision, (2) his due process rights were violated,
and (3) he did not receive effective assistance of counsel. For the reasons set forth
below, we affirm the judgment of the trial court.
Background
On June 4, 2019, the trial court sentenced appellant to deferred adjudication
for a period of four years for the offense of aggravated assault with a deadly weapon.
In addition to a number of other standard conditions of community supervision,
appellant was ordered to (1) report to the community supervisor officer as directed
for the remainder of the supervision term unless so ordered differently by the Court,
(2) pay a fine of $100 and court costs, (3) pay $50 to Crime Stoppers of Houston,
(4) pay $10 per month to cover expenses of drug testing, and (5) pay a one-time fee
of $100 to Harris County Community Supervision & Corrections Department.
On January 26, 2021, the State filed an amended motion to proceed on
adjudication 1, alleging that appellant “failed to report [to the community supervision
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officer] as directed on May 4, 2020, and had not reported to his community
supervision officer since.” Appellant pleaded “not true” to each of the State’s
allegations.
At the hearing revocation hearing, the State called Officer Dominque Brown
as a witness. Officer Brown was employed by the Harris County Community
Supervision & Corrections Department and was assigned as appellant’s community
supervision officer. During the hearing, Officer Brown testified that she was initially
supervising appellant in person, and appellant was scheduled to report twice a month
1
The State filed its original motion to adjudicate on July 2, 2020. The original motion,
however, is not part of the record.
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during his supervision term.
In March 2020, the Harris County Community Supervision & Corrections
Department closed its offices in response to the COVID-19 pandemic. Thereafter,
Officer Brown began supervising appellant virtually while the offices were closed.
Appellant was scheduled to report virtually on May 4, 2020. On this date,
appellant “contacted [her] 25 minutes after his appointment time.” Officer Brown
explained that “a missed appointment is if the client doesn’t show up at all, no-call,
no-show, or if the client shows up 15 minutes late without contacting the officer to
let them know that they’re going to be running late.” She testified that appellant was
rescheduled for May 8, 2020. Appellant, however, never accessed this scheduled
meeting either.
Officer Brown testified that from the time she began supervising appellant in
June 2019 through July 2020, she had to reschedule appellant eleven times, he failed
to report at least eight times, and that she had attempted to contact appellant at least
fifteen times.
Following the hearing, the trial court found the allegations in paragraph 3 of
the State’s motion to be true, adjudicated appellant guilty of the second-degree
offense of aggravated assault, and sentenced him to two years’ imprisonment. This
appeal followed.
Discussion
In three issues, appellant argues the trial court erred by finding each of the
State’s allegations true in its motions for revocation of community supervision and
adjudication of guilt and abused its discretion by revoking his community
supervision.
In a proceeding to revoke community supervision, the State must prove, by a
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preponderance of the evidence, that the defendant violated a term or condition of his
community supervision. Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App.
2006); Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The State
satisfies its burden when the greater weight of the credible evidence before the trial
court creates a reasonable belief that it is more probable than not that the defendant
violated a condition of his community supervision as alleged in the State's motion.
Cobbs, 851 S.W.2d at 873. In a revocation hearing, the trial judge is the sole trier of
fact and determines the credibility of the witnesses and the weight to be given to
their testimony. See Battle v. State, 571 S.W.2d 20, 22 (Tex. Crim. App. 1978). If
the State fails to meet its burden of proof, then revocation would be an abuse of the
trial court’s discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.
1984). Proof by a preponderance of the evidence as to any one of the alleged
violations is sufficient to support a trial court’s decision to revoke community
supervision. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.]
1980). Our review of an order revoking community supervision is limited to
determining whether the trial court abused its discretion. Rickels, 202 S.W.3d at 763.
I. Sufficiency of the Evidence
In his first issue, appellant argues that the trial court abused its discretion and
challenges the sufficiency of the evidence to support the trial court’s finding that he
failed to report to the community supervisor officer. We disagree.
In its Motion to Adjudicate, the State alleged that appellant failed to report to
his community supervision officer and that he failed to pay supervision fees, fine
and court costs, and other required fees and assessments. In support of its motion,
the State called Officer Brown, who had been assigned as appellant’s community
supervision officer. Officer Brown testified that appellant failed to report to the
community supervision office for the months of May and June. She also testified
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that appellant was $938 in arrears for supervision fees, $312 in arrears for fines and
court costs, $50 in arrears for Crime Stoppers of Houston fee, and $180 in arrears
for drug testing fees, and $100 in arrears for an assessment fee. Though appellant’s
trial counsel cross-examined Officer Brown, appellant did not testify or offer any
other evidence against the State’s motion.
Here, it was well within the trial court’s discretion to accept or reject any or
all of Officer Brown’s testimony. Maddox v. State, 466 S.W.2d 755, 757 (Tex. Crim.
App. 1971). The evidence was clear that appellant was rescheduled eleven times
while on community supervision and failed to report as required by the conditions
of his community supervision at least eight times in May and June 2020. Appellant’s
failure to report provided a sufficient reason for the trial court to revoke his
community supervision. See Flournoy v. State, 589 S.W.2d 705, 709–10 (Tex. Crim.
App. [Panel Op.] 1979); Greer v. State, 999 S.W.2d 484, 489 (Tex. App.—Houston
[14th Dist.] 1999, pet. ref’d) (no abuse of discretion to revoke for failing to report
for single month). Accordingly, we overrule appellant’s first issue.
II. Due Process Violation
In his second issue, appellant contends that his “constitutional right to the due
process of law . . . was violated when the trial court adjudicated him guilty for being
25 minutes late to one probation meeting during the height of the COVID-19
pandemic. We disagree.
At a revocation of probation proceeding, a defendant need not be afforded the
full range of constitutional and statutory protections available at a criminal trial.
Gagnon v. Scarpelli, 411 U.S. 778, 789 (1973). In Gagnon, the Supreme Court
enunciated the minimum requirements of due process which must be observed in
community supervision revocation hearings: (1) written notice of the claimed
violations of probation; (2) disclosure to the probationer of the evidence against him;
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(3) opportunity to be heard in person and to present witnesses and evidence, and the
right to confront and cross-examine adverse witnesses; (4) a neutral and detached
hearing body; and (5) a written statement by the fact finders as to the evidence relied
on and the reasons for revoking probation. Gagnon, 411 U.S. at 786 (1973) (citing
Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). In Texas, the procedure for
revoking probation affords a probationer greater safeguards than those required by
Gagnon and Morrissey. See Ruedas v. State, 586 S.W.2d 520, 523 (Tex. Crim. App.
1979) (citing to Whisenant v. State, 557 S.W.2d 102 (Tex. Crim. App. 1977)). In
Texas, a probationer has the right to be represented by counsel at a revocation
hearing. Ex parte Guzman, 551 S.W.2d 387 (Tex. Crim. App. 1977); Ex parte
Flores, 537 S.W.2d 458 (Tex. (Tex. Crim. App. 1976). At such a proceeding, guilt
or innocence is not at issue, and the trial court is not concerned with determining the
defendant’s original criminal culpability. Davenport v. State, 574 S.W.2d 73, 75
(Tex. Crim. App. 1978). “The question at a revocation hearing is whether the
appellant broke the contract he made with the court after the determination of his
guilt.” Kelly v. State, 483 S.W.2d 467, 469 (Tex. Crim. App. 1972).
The record from the revocation proceeding reflects that appellant was
represented by counsel and had written notice of the State’s allegations alleging that
he failed to report to his community supervision officer and failed to pay fines, court
costs, and other assessments as required by the conditions of his community
supervision. The State presented evidence to support the alleged violations, and
appellant had an opportunity to be heard, present witnesses and evidence, and
confront and cross-examine adverse witnesses. There is nothing before us to indicate
that the proceedings did not take place before a neutral and detached hearing body,
nor did appellant make this argument. Though the trial court clearly articulated its
rulings on the record after the hearing and found that appellant failed to report to his
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community supervision officer, there was evidence presented for each of the other
violations alleged by the State in its adjudication motion.
Under the facts of this case, appellant’s due process rights were adequately
protected. Accordingly, we overrule appellant’s second issue.
III. Ineffective Assistance of Counsel
In appellant’s third issue, he alleges that he did not receive effective assistance
of counsel because trial counsel failed to (1) raise the affirmative defense of due
diligence and his tardiness (2) argue that appellant’s tardiness to a scheduled
probation meeting should have been excused. We disagree.
To prevail under Strickland, an appellant must show both that (1) counsel’s
performance fell below an objective standard of reasonableness and (2) but for
counsel’s unprofessional error, there is a reasonable probability that the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687
(1984); Vasquez v. State, 830 S.W.2d 948, 949 (Tex. Crim. App. 1992). In order to
satisfy the first prong, appellant must prove, by a preponderance of the evidence,
that his trial counsel’s performance fell below an objective standard of
reasonableness under the prevailing professional norms. Strickland, 466 U.S. at 687.
To prove prejudice, appellant must show that there is a reasonable probability, or a
probability sufficient to undermine confidence in the outcome, that the result of the
proceeding would have been different. Id.The Texas Code of Criminal Procedure provides an affirmative defense to
revocation for failure to report to a supervision officer as directed where no
supervision officer, peace officer, or other officer contacted or attempted to contact
the defendant in person at the defendant’s last known residence address or last
known employment address. See Tex. Code Crim. Proc. Ann. art. 42A.109; see also
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Garcia v. State, 387 S.W.3d 20, 22–24 (Tex. (Tex. Crim. App. 2012). The Texas
Court of Criminal Appeals determined the Legislature intended this affirmative
defense to apply in those instances in which the State has timely alleged violations
but has not arrested the defendant before the community supervision period expired.
See Garcia, 387 S.W.3d at 25 (interpreting Tex. Code Crim. Proc. art. 42.12, § 24,
which was later repealed and re-codified at Tex. Code Crim. Proc. art. 42A.109).
Here, appellant’s contention that he was entitled to the due diligence
affirmative defense is misplaced. The record reflects that appellant was charged with
several violations prior to the expiration of his community supervision period. Thus,
appellant was not eligible to raise this affirmative defense. See Garcia, 387 S.W.3d
at 25 (“The application of the due diligence defense is limited to “those instances in
which the State has timely alleged violations but has not arrested the defendant
before the community supervision period has expired.”); see also Tex. Code Crim.
Proc. Ann. art. 42A.109. Because appellant failed to meet the “deficiency” part of
the Strickland test, we need not reach the question of whether appellant was
prejudiced.
Presuming without deciding that counsel’s failure to argue that “being 25
minutes late to one probation meeting” would satisfy the first prong of Strickland,
appellant’s ineffective assistance claim still fails because the second Strickland
prong is not satisfied. Appellant has not shown a reasonable probability that, but for
counsel’s presumptively deficient performance, the result of the trial would have
been different. See Strickland, 466 U.S. at 687; Mallett v. State, 65 S.W.3d 59, 63
(Tex. Crim. App. 2001).
Accordingly, we overrule appellant’s third issue.
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Conclusion
We affirm the trial court’s judgments.
/s/ Frances Bourliot
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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