Gary Lee Reed v. the State of Texas ( 2024 )

Opinion filed May 23, 2024
In The
Eleventh Court of Appeals
__________
No. 11-22-00263-CR
__________
GARY LEE REED, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 21546-B
MEMORANDUM OPINION
Appellant, Gary Lee Reed, appeals the trial court’s judgment revoking his
deferred adjudication community supervision for the offense of aggravated assault
family violence with a deadly weapon, a first-degree felony. TEX. PENAL CODE ANN.
§ 22.02(b)(1) (West Supp. 2023). In a single issue, Appellant argues that the
evidence was legally insufficient to support the trial court’s finding of “true” for
certain allegations. We affirm.
Factual and Procedural History
In August 2019, Appellant pled guilty to the first-degree felony offense of
aggravated assault family violence and pled “true” to the habitual offender
enhancement. The trial court accepted the pleas and sentenced Appellant to eight
years’ deferred adjudication community supervision. Appellant was required, as a
condition of his community supervision, to have no contact with the victim, Telia
Fay Elmore. In April 2021, the State filed an amended motion to adjudicate
Appellant’s guilt and to revoke his community supervision, alleging that Appellant
had violated six conditions of his community supervision.
The State waived the first allegation. In paragraph six, the State alleged that
Appellant violated condition Q of his community supervision when he contacted
Telia in December 2019. Paragraph two of the amended motion alleged that
Appellant violated condition A of his community supervision 1 when he
intentionally, knowingly, and recklessly caused bodily injury to Telia in December
2019. Paragraph three alleged the same violation of condition A of community
supervision, but as to Teresa Ann Elmore, Telia’s mother. Paragraphs four and five
alleged that Appellant violated conditions D and N of his community supervision by
failing to report to his community supervision officer and by failing to pay his court
appointed attorney’s fees on a monthly schedule.
Appellant pled “true” to allegations four and five, but pled “not true” to
allegations two, three, and six. Four witnesses testified during the hearing: Telia,
Teresa, and the two officers who responded to the December 2019 incident. Telia
testified that she was in a relationship with Appellant and that she was the named
1
The trial court’s August 15, 2019 order of deferred adjudication states: “condition A” requires
that Appellant will “[c]ommit no offense against the laws of this or any other state, or the United States”;
“condition D” requires monthly reporting to the Community Supervision and Corrections Department
Officer of Taylor County, Texas; “condition N” requires timely payment of various listed fees; and
“condition Q” requires that “Defendant is to have no contact with Telia Fay Elmore.”
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victim in Appellant’s original deferred adjudication community supervision case.
Telia also testified that she was the alleged victim in the assault that took place in
December 2019. Telia admitted that she knew there was a “no contact” order
between Appellant and herself as part of his community supervision;
notwithstanding the order, Appellant moved back in with her the day that he was
released from custody. Teresa was living with Telia and Appellant in December
2019, and she became involved in a physical conflict between Telia and Appellant.
Teresa testified, as did Telia, that Appellant physically assaulted both women during
that altercation.
The two officers testified regarding their response to the 9-1-1 call in
December 2019. Abilene Police Lieutenant Joe Tauer testified that Appellant was
attempting to leave the premises in his vehicle when Lieutenant Tauer arrived in
response to the call for service. Following a brief conversation with Appellant,
Lieutenant Tauer learned that one of the reasons that Appellant was attempting to
drive away was because he knew that he was not supposed to be on the premises.
Abilene Police Officer Bryan Stevens arrived at the home after Lieutenant
Tauer. Both Telia and Appellant were outside when Officer Stevens arrived. Officer
Stevens testified that he initially did not see any injuries on Telia, but that she was
yelling out that Appellant had assaulted her and should be arrested. Officer Stevens
indicated that he later noticed Telia’s arm was red, and that Teresa had a visible
injury to her foot—but he suspected that the injury on Telia’s arm may have been
self-inflicted. However, Officer Stevens also testified that, in family violence cases,
it is not unusual for inflicted injuries to appear after time has passed.
At the conclusion of the hearing, the trial court found that allegations two,
three, four, five, and six were “true.” The trial court adjudicated Appellant guilty of
the offense, revoked his deferred adjudication community supervision, and
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sentenced him to twenty-five years’ imprisonment in the Institutional Division of
the Texas Department of Criminal Justice.
Standard of Review
We review a trial court’s order revoking community supervision for an abuse
of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In that
regard, we review the evidence in the light most favorable to the trial court’s ruling.
Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). “In a revocation
proceeding, the trial court has discretion to revoke community supervision when a
preponderance of the evidence supports one of the State’s allegations that the
defendant violated a condition of his community supervision.” Leonard v. State,
385 S.W.3d 570, 576 (Tex. Crim. App. 2012) (emphasis added); see Jones v. State,
472 S.W.3d 322, 324 (Tex. App.—Eastland 2015, pet. ref’d). Although a defendant
is not entitled to community supervision, once community supervision has been
ordered in lieu of other punishment, the trial court may not arbitrarily withdraw a
defendant’s community supervision. Leonard, 385 S.W.3d at 576 (citing DeGay v.
State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987)). Thus, there must be a showing
that the defendant violated a condition of the community supervision imposed by the
trial court. Id. Additionally, the judgment of the trial court should be affirmed if the
appellant fails to challenge all of the grounds on which the trial court revoked
community supervision. Guillory v. State, 652 S.W.3d 923, 928 (Tex. App.—
Eastland 2022, pet. ref’d) (citing Alvarez v. State, No. 11-13-00322-CR, 2015 WL
6121359, at *4 (Tex. App.—Eastland Oct. 15, 2015, no pet.) (mem. op., not
designated for publication)); Lott v. State, No. 01-22-00067-CR, 2024 WL 628933,
at *1–2 (Tex. App.—Eastland Feb. 15, 2024, no pet.) (mem. op., not designated for
publication); 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.—
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Houston [1st Dist.] Oct. 25, 2007, no pet.) (mem. op., not designated for
publication).
Analysis
Here, Appellant pled “true” to allegations four and five and the trial court
founds these allegations to be “true.” In addition, the trial court found allegations
two, three, and six to be “true.” Appellant argues that he only pled true to “technical
violations” of his community supervision, and without the trial court’s insufficient
finding as to the other violations, such violations “most likely would not have been
used to violate his probation and he would likely not have been sent to prison.” In
this regard, Appellant only challenges the “true” findings to the allegations on which
he pled “not true”—allegations two and three, that he: “intentionally, knowingly, and
recklessly cause[d] bodily injury to Telia Fay Elmore” and “intentionally,
knowingly, and recklessly cause[d] bodily injury to Teresa Ann Elmore,”
respectively.2
First, as previously stated, a finding of “true” for even one of the alleged
violations of a defendant’s probation is sufficient to support a trial court’s revocation
of community supervision. See Leonard, 385 S.W.3d at 576. Here, regardless of
whether Appellant categorizes allegations four and five as “technical,” he pled “true”
to both allegations and the trial court accepted Appellant’s pleas and found both
allegations to be “true.” These findings, alone, support the trial court’s revocation
order.
Second, on appeal, Appellant has failed to contest the trial court’s finding of
“true” to allegation six. Because Appellant has not challenged the sufficiency of the
evidence for any of the allegations that the trial court found to be “true,” we must
affirm the judgment revoking community supervision. Baxter, 936 S.W.2d at 472;
At the hearing, Appellant did not contest part of allegation six—that he had contact with Telia.
2
Instead, he challenged the second part, which alleged that he assaulted Telia in December 2019.
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see Leonard, 385 S.W.3d at 576; Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.
App. [Panel Op.] 1980). Thus, we need not address whether sufficient evidence
exists to support the trial court’s findings of “true” to the allegations to which
Appellant pled “not true.” See TEX. R. APP. P. 47.1. As to allegation six, the
evidence presented during the hearing was enough to support the alleged violation
of Appellant’s no contact condition under a preponderance-of-the-evidence
standard. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013) (citing
Rickels, 202 S.W.3d at 764) (Where, in the context of a revocation proceeding, a
“preponderance of the evidence” means “that greater weight of the credible evidence
which would create a reasonable belief that the defendant has violated a condition
of his probation.”). Telia testified that Appellant returned to live with her the day
that he was released on community supervision, despite the no contact order.
Further, Telia and Teresa each testified that Appellant was living with them at the
time of the alleged assaults—which occurred after Appellant was placed on deferred
adjudication.
When Lieutenant Tauer arrived at the home where all three were living,
Appellant was attempting to leave, and communicated to the officer that he knew he
was not even supposed to be there. Thus, there is sufficient evidence that, under a
preponderance-of-the-evidence standard, Appellant violated condition Q of his
Order of Deferred Adjudication. This violation is clearly material and there is no
argument before us that it is not. Appellant was specifically ordered to have no
contact with Telia as a part of his plea bargain and Order of Deferred Adjudication.
According to the evidence presented at the hearing, Appellant not only violated
condition Q, but he knew that he was in violation of his community supervision.
Again, only one alleged violation is required to be “true” to revoke a defendant’s
community supervision.
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There are three unchallenged findings on appeal, and each is supported by a
preponderance of the evidence. We nevertheless disagree with Appellant’s
contention that the State presented insufficient evidence to support the trial court’s
finding of true to allegations two and three. We evaluate the evidence and confirm
that each is supported by the record to address Appellant’s stated issue on appeal.
Paragraphs two and three allege that Appellant violated condition A of his
probation when he committed assault against two people: Telia and Teresa. The
paragraphs allege that Appellant intentionally, knowingly, and recklessly caused
bodily injury to each Telia and Teresa, who were each a member of his household,
as described in Section 71.005 of the Texas Family Code. Paragraph two alleges
that Appellant caused injury to Telia by dragging her by the hair and pinning her
against the wall, and paragraph three alleges that Appellant caused injury to Teresa
by pushing her.
Both Telia and Teresa testified they were assaulted and sustained injury by
Appellant’s actions in December 2019. Specifically, Telia testified that Appellant
dragged her by her hair from her mother’s room to the living room. Teresa
confirmed this and testified that Appellant shoved Telia up against a wall. Telia and
Teresa both testified that Appellant pushed Teresa. Teresa’s leg was injured as a
result of Appellant pushing her. The testimony was clear that Appellant, Telia, and
Teresa were living together at the time of the altercation. Additionally, Officer
Stevens testified that, while he was suspicious about what happened or how they
were injured, he arrived after the altercation and Telia and Teresa had both sustained
injuries.
The record shows that, Appellant committed offenses “against the laws of this
or any other State, or the United States” thereby violating a condition of his deferred
adjudication community supervision. The evidence presented by the State to the
trial court of Appellant’s aggravated assault family violence with a deadly weapon
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meets the preponderance-of-the-evidence standard for the allegations related to this
offense. The greater weight of the evidence presented about the altercation and
injuries sustained was sufficient to create a reasonable belief that Appellant violated
a condition of his probation by committing the offense of assault against both Telia
and Teresa. Thus, the trial court did not abuse its discretion in concluding that
Appellant violated both conditions as alleged in paragraphs two and three of the
State’s motion to revoke his probation. Having concluded that the trial court had
sufficient evidence to support its findings as to violations alleged, we further
conclude that it was well within the trial court’s discretion to revoke Appellant’s
deferred adjudication community supervision. Moreover, because Appellant has not
challenged the sufficiency of the evidence for all alleged violations that the trial court
found to be true, we must affirm the judgment revoking community supervision. See
Baxter, 936 S.W.2d at 472; see also Leonard, 385 S.W.3d at 576; Moore, 605
S.W.2d at 926.
We overrule Appellant’s sole issue.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
May 23, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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