Joseph Randall Holcomb v. the State of Texas

Affirmed and Memorandum Opinion filed January 26, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00718-CR
JOSEPH RANDALL HOLCOMB, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1281755
MEMORANDUM OPINION
Appellant Joseph Randall Holcomb complains on appeal that the trial court
abused its discretion by revoking his community supervision. Because appellant
concedes on appeal that legally sufficient evidence supports one of the allegations
in the State’s motion to revoke, which supports the trial court’s order, we affirm.
Background
In 2010, the State charged appellant with the third-degree felony offense of
assault of a family member by impeding breath. The trial court deferred an
adjudication of appellant’s guilt and placed appellant on community supervision
for a period of eight years. In 2014, appellant was charged with a new offense,
indecency with a child, and later arrested in Louisiana. A month later, the State
filed a motion to adjudicate guilt, alleging that appellant violated five terms of his
community supervision. The State served the motion on appellant in 2019. In
2020, the court held a hearing on the motion, found three allegations true,
adjudicated appellant’s guilt on the assault of a family member charge, and
sentenced appellant to eight years’ confinement.
Analysis
Appellant presents three issues for review. First, he argues that the trial
court abused its discretion in ruling that appellant failed to establish a due-
diligence affirmative defense. Second, appellant contends that the trial court
abused its discretion in finding that appellant committed a new offense of
indecency with a child by contact while on community supervision. Third,
appellant argues that his trial counsel provided ineffective assistance.
A. Standard of Review
We review a trial court’s decision to revoke deferred adjudication
community supervision for an abuse of discretion. See Leonard v. State, 385
S.W.3d 570, 576 (Tex. Crim. App. 2012). A trial court has discretion to revoke
community supervision if a preponderance of the evidence supports the violation
of a condition of the community supervision. Id. Proof of a single violation will
support the trial court’s decision to revoke. See Garcia v. State, 387 S.W.3d 20, 26
2
(Tex. Crim. App. 2012); Bessard v. State, 464 S.W.3d 427, 429 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d). Thus, to prevail an appellant must
successfully challenge all the findings that support the revocation order. See Smith
v. State, 286 S.W.3d 333, 342-43 & n.36 (Tex. Crim. App. 2009); Jones v. State,
571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978).
Under the preponderance standard, the State must prove that the greater
weight of credible evidence would create a reasonable belief that the defendant
violated a condition of community supervision. Hacker v. State, 389 S.W.3d 860,
865 (Tex. Crim. App. 2013). This standard “has been described as a review for
whether there is ‘more than a scintilla’ of evidence.” Id. (quoting Jelinek v. Casas,
328 S.W.3d 526, 532 (Tex. 2010)). The standard is not met when the evidence
offered to prove a vital fact is so weak as to do no more than create a mere surmise
or suspicion of its existence or when the factfinder must guess whether a vital fact
exists. Id. The trial court is the sole judge of the credibility of the witnesses and
the weight to be given to the testimony. Id.B. Legally Sufficient Evidence Supports Revocation
Appellant’s community supervision was subject to the following conditions:
(1) Commit no offense against the laws of this or any other State or
of the United States.
(2) Avoid injurious or vicious habits. You are forbidden to use,
possess, or consume any controlled substance, dangerous drug,
marijuana, alcohol or prescription drug not specifically prescribed to
you by lawful prescription. You are forbidden to use, consume, or
possess alcoholic beverages.
(7) Work faithfully at suitable employment and present written
verification of employment (including all attempts to secure
employment) to your Community Supervision Officer on each
reporting date. You must notify HCCS&CD within 48 hours of any
change in your employment status.
3
(8) Remain within a specified place, to-wit: Harris
County/Chambers County, Texas. You may not travel outside of
Harris County/Chambers County, Texas unless you receive prior
written permission from the Court through your Community
Supervision Officer. You must notify HCCS&CD prior to any
change of residence. YOU ARE ALLOWED TO TRAVEL TO
PORT ARTHUR, TEXAS FOR EMPLOYMENT PURPOSES
ONLY.
(12) Pay the following fees through HCCS&CD as specified
herein. . . .
12.1 Pay a Supervision Fee at the rate of $40.00 per month for
the duration of your community supervision beginning
01/18/2011 to HCCS&CD.
The State alleged that appellant violated the conditions of his community
supervision by: committing the offense of sexual contact with a child; possessing
alcohol; failing to work faithfully and provide written proof of employment for the
months of November and December 2013 and January, February, May, June, and
July 2014; failing to remain within Harris County as evidenced by his arrest in
Louisiana; and failing to pay the required supervision fees. At the revocation
hearing, the trial court orally pronounced that it found true the allegations that
appellant committed a new offense, that appellant failed to work faithfully, and
that appellant failed to remain within a specified place.
On appeal, appellant argues that the trial court erred in finding true the
allegation that appellant committed the offense of sexual contact with a child.
However, appellant concedes in his brief that the evidence supports the trial court’s
finding that he failed to work faithfully: “Appellant does not contest that the trial
court had discretion to revoke his community supervision on this ground.” Indeed,
a witness at the hearing testified that appellant failed to provide a payment stub for
November and December 2013, despite claiming to be employed, and that
appellant reported being unemployed in January, February, May, June, and July
4
2014. This evidence was undisputed. Thus, the record supports the trial court’s
finding that appellant violated a condition of his community supervision on at least
one ground alleged by the State.
Proof of a single violation will support the trial court’s decision to revoke a
defendant’s community supervision. See Garcia, 387 S.W.3d at 26. Even
assuming appellant is correct that the State failed to prove that he violated the
conditions of community supervision by committing the offense of sexual contact
with a child, the record supports the trial court’s finding on another violation
asserted by the State. Thus, appellant has not demonstrated that the trial court
abused its discretion in revoking appellant’s community supervision and
proceeding to an adjudication of guilt, and we overrule his second issue.
C. Remaining Issues Are Moot
In his first and third issues, appellant argues that he proved a due-diligence
affirmative defense and that his trial counsel was ineffective for eliciting testimony
that appellant was convicted of indecency with a child. Neither one of these
arguments, even if meritorious, changes the result.
At the hearing, appellant elicited testimony from a witness that the State did
not make any efforts to serve appellant with the motion to adjudicate guilt for five
years. Appellant testified that he was in prison, and thus easily located, for four
years while the motion was pending. Appellant argued that the State failed to
exercise due diligence in serving the motion, which is an affirmative defense under
the Code of Criminal Procedure.
Appellant misapprehends the scope of the defense. Article 42A.756 states:
[I]t is an affirmative defense to revocation for an alleged violation
based on a failure to report to a supervision officer as directed or to
remain within a specified place that no supervision officer, peace
5
officer, or other officer with the power of arrest under a warrant
issued by a judge for that alleged violation contacted or attempted to
contact the defendant in person at the defendant’s last known
residence address or last known employment address, as reflected in
the files of the department serving the county in which the order of
community supervision was entered.
Tex. Code Crim. Proc. art. 42A.756.
This defense applies only to revocations involving allegations of failure to
report or failure to remain within a specified place; it is not a general defense to all
allegations justifying revocation. See, e.g., Jones v. State, No. 06-21-00140-CR,
2022 WL 1434117, at *3 (Tex. App.—Texarkana May 6, 2022, no pet.) (mem. op.,
not designated for publication); Bravo v. State, No. 04-17-00698-CR, 2018 WL
3129444, at *3 (Tex. App.—San Antonio June 27, 2018, no pet.) (mem. op., not
designated for publication). And while the trial court found true the allegation that
appellant failed to remain within a specified place, that is not the allegation on
which we affirm the judgment, so appellant’s first issue is moot. State v.
Plambeck, 182 S.W.3d 365, 367 n.10 (Tex. Crim. App. 2005) (“A court is not
required to address issues that become moot because of the resolution of other
issues.”); Gobell v. State, 528 S.W.2d 223, 224 (Tex. Crim. App. 1975) (“Since the
other finding upon which probation was revoked is unchallenged, appellant’s
contention, even if correct, would not show an abuse of discretion.”).
Appellant also argues that his trial counsel provided ineffective assistance by
eliciting testimony during the hearing that supported the State’s allegation that
appellant committed the offense of sexual contact with a minor. Again, this is not
the allegation on which we affirm, so we need not reach appellant’s third issue.
See Bessard, 464 S.W.3d at 429.
We overrule appellant’s first and third issues.
6
Conclusion
We affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish — Tex. R. App. P. 47.2(b).
7