Luis Alberto Adame, Jr. v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00007-CR
LUIS ALBERTO ADAME, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 286th District Court
Hockley County, Texas
Trial Court No. 16-06-8772; Honorable Pat Phelan, Presiding
December 11, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Luis Alberto Adame, Jr., appeals from the trial court’s judgment revoking
his community supervision and sentencing him to ten years of imprisonment for the
offense of sexual assault of a child.1 Appellant challenges the court’s judgment through
two issues. We affirm as modified.
1 TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West 2019). As indicted, the offense was a second
degree felony. Id. at § 22.011(f).
BACKGROUND
In early 2017, Appellant pleaded guilty to sexual assault of a child. His ten-year
sentence was suspended in favor of his placement on community supervision for a period
of ten years. His community supervision was subject to certain terms and conditions.
Almost six months after Appellant’s placement on community supervision, the State filed
a motion to revoke. Following a hearing in which the trial court found the alleged violations
to be true, the trial court ordered Appellant’s community supervision to continue with
additional terms.
Several months later, the State filed another motion to revoke, alleging Appellant
violated eight of the thirty-four conditions of his community supervision. Those alleged
violations included Appellant’s failure to report as required, failure to work at suitable
employment, failure to pay required fines and fees, failure to pay the required monthly
community supervision fee, failure to attend psychological counseling sessions, failure to
perform required community service, failure to attend probation performance reviews, and
failure to avoid contact with a minor child.
The trial court held a hearing on the State’s motion during which Appellant pleaded
“not true” to the State’s allegations. Two witnesses testified. One witness was Appellant’s
community supervision officer and the other was an investigator with the Texas
Department of Family and Protective Services.
Appellant’s community supervision officer testified to the terms and conditions of
Appellant’s community supervision, that he discussed those terms and conditions with
Appellant, and that Appellant understood them. The officer then told the court which
conditions Appellant violated. First, Appellant failed to report as required for the months
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of May through December 2018. The officer testified his last contact with Appellant was
a February 2018 “face-to-face” “field visit” in which the officer went to see Appellant rather
than Appellant coming to see him. Second, while Appellant did submit a job search form
in November 2017, he did not obtain employment and “failed to provide proof that he’s
[continuing to seek] employment.” Third, the officer testified Appellant was required to
attend sex offender counseling once a week. The sex offender counselor told the officer
Appellant missed several sessions and also failed to attend a scheduled polygraph exam
in February 2018. Appellant was “discharged unsuccessfully” from the program in late
February 2018. Fourth, the officer told the court Appellant was ordered to complete
community service hours and because Appellant was not employed, he was required to
complete eight hours per week. However, Appellant had completed only a total of 6.5
hours for the entire period of his community supervision. Furthermore, Appellant failed
to appear for a required performance review hearing. The community supervision officer
also told the court that the terms and conditions of Appellant’s community supervision
prohibited his contact with minor children without permission of the officer or the court. In
mid-February, the officer received a telephone call and follow-up email from a CPS
investigator informing him that a week earlier, he conducted a home visit regarding minor
children. A male identified as Appellant answered the door of the apartment and it was
confirmed he was in the presence of minor children. The officer recommended to the
court that Appellant’s supervision be revoked because he is “not a good candidate to
complete probation just by his actions throughout his term of supervision and so I don’t
think he will comply with conditions.”
The investigator with the Department of Family and Protective Services testified
he received an intake report concerning domestic violence in the home of an infant and
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a one-year-old. The report indicated concerns of domestic violence, loud arguing, drug
use, and neglect. When the investigator visited the home in early February 2018, a male
answered the door and told the investigator the woman he was looking for was not there.
On request, that person identified himself to the investigator as Appellant and told him he
was babysitting the children. The investigator asked to see the children and Appellant
allowed him to do so. The investigator “made a brief assessment, assured their safety”
and obtained further identifying information from Appellant and contact information for the
mother. The investigator left the apartment and went to his car to determine who
Appellant was and to attempt to locate the mother. Within thirty minutes, a maternal aunt
arrived. She went to the apartment and came downstairs with one of the children. The
investigator asked who she was, and she identified herself. Shortly thereafter, Appellant
came downstairs with the other child.
Appellant told the investigator he was not the father of the children, but the
maternal aunt told the investigator he was. The aunt left with the children, so the
investigator went back to the apartment and asked Appellant again whether he was the
father of the children. Again, he said no and when confronted with the fact the maternal
aunt said he was, he just said it had not “been proven” and that he had “not taken a
paternity test” so he did not know for certain if he was. The investigator left and within
two or three hours, he discovered Appellant’s charges of sexual abuse to a minor child.
The investigator later spoke with the mother and she confirmed Appellant was the father
of the children. When asked, she told the investigator she was not aware of the condition
prohibiting Appellant’s contact with minor children. The mother also told the investigator
Appellant was not living in the apartment with her and her children. However, other
people at the apartment complex told the investigator Appellant was living there.
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Appellant did not testify but did comment to the court that he “tried my hardest to
complete my probation.” He also said his community supervision officer told him to stop
taking his anxiety medication and that he would “just get too nervous, I guess, and I didn’t
report. I’m sorry.”
At the conclusion of the hearing, the trial court found each of the State’s allegations
to be true and revoked Appellant’s community supervision. The court sentenced
Appellant to serve ten years of imprisonment.
ANALYSIS
STANDARD OF REVIEW AND APPLICABLE LAW
The only question before this court when reviewing an order revoking community
supervision is whether the trial court abused its discretion. Hacker v. State, 389 S.W.3d
860, 865 (Tex. Crim. App. 2013); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim.
App.1984) (citation omitted). In a revocation proceeding, the State is required to prove
by a preponderance of the evidence that the probationer violated a condition of
community supervision as alleged in the motion to revoke. Cardona, 665 S.W.2d at 493
(citation omitted). Proof of a single violation is sufficient. Garcia v. State, 387 S.W.3d 20,
26 (Tex. Crim. App. 2012). If the State fails to satisfy its burden of proof, the trial court
abuses its discretion in revoking community supervision. Cardona, 665 S.W.2d at 493-
94. (citation omitted). In determining the sufficiency of the evidence to sustain a
revocation, we view the evidence in the light most favorable to the trial court’s ruling. Id.
at 493. The trial court is the sole trier of fact and determines the credibility of witnesses
and the weight to be give their testimony in revocation proceedings. Moore v. State, 11
S.W.3d 495, 498 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citation omitted).
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APPLICATION
ISSUE ONE—SUFFICIENCY OF THE EVIDENCE
In his first issue, Appellant argues the evidence was insufficient to prove he
violated several conditions of his community supervision order. The State responds that
it presented sufficient evidence showing Appellant violated each condition and because
the law requires sufficient evidence of violation of only one condition, we must overrule
the issue. We agree.
Appellant first argues the State failed to prove he did not properly report. Appellant
concedes his community supervision officer testified Appellant did not report to him but
argues there was no evidence Appellant did not report to another officer. The report and
file were not admitted into evidence. According to Appellant, such evidence has been
found in other cases sufficient to prove an appellant’s failure to report as required.
However, Appellant asserts, because no such evidence was offered here, the State’s
proof falls short. We do not agree with Appellant’s arguments, in significant part because,
in his comments to the court, Appellant admitted his failure to report. While he said it was
because he was “too nervous” and that he was sorry, these are not valid explanations for
his failure to report. The trial court was free to interpret this as an admission supporting
violation of this condition.
Appellant also argues the order did not expressly include in its conditions that
Appellant make a certain number of job contacts. It said only that Appellant “shall work
faithfully at suitable employment as far as possible.” The officer acknowledged Appellant
submitted a job form, made several job contacts, had few skills for employment other than
manual labor, and that finding a job “would be difficult.” The officer also said that he
faulted Appellant “for not seeking employment” rather than for not obtaining employment.
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The record also shows that when Appellant did find potential employment, his community
supervision officer told him he could not take the job because it was not local and would
take him out of the sex offender counseling program. According to Appellant, courts have
been reluctant to revoke community supervision for violation of this condition, particularly
when some efforts toward employment have been made. However, the trial court here
had before it sufficient facts from which it could have found, by a preponderance of the
evidence, that Appellant violated this condition. See Howard v. State, No. 09-09-00386-
CR, 2010 Tex. App. LEXIS 5758, at *6-7 (Tex. App.—Beaumont July 21, 2010, pet. ref’d)
(mem. op., not designated for publication).
Next, Appellant argues the law requires the State to show Appellant had the ability
to pay the fees and costs he was alleged to have left unpaid. This is so because,
Appellant asserts, revocation of community supervision for failure to pay when a
defendant is unable to pay denies due process of law. Under article 42A.751(i), when it
is alleged only that the defendant violated the conditions of community supervision by
failing to pay community supervision fees or court costs or by failing to pay the cost of
legal services, the State must prove, by a preponderance of the evidence, that Appellant
had the ability to pay but willingly did not pay the required costs and fees. TEX. CODE
CRIM. PROC. ANN. art. 42A.751(i).
The statute comes into play in a revocation hearing at which it is alleged only that
the defendant violated the conditions of community supervision by failing to pay
community supervision fees or court costs or by failing to pay the cost of legal services.
Here, several other allegations were at issue in the revocation hearing. The “clear
language of the statute provides that the State only needs to prove the defendant’s ability
to pay when the failure to pay is the only allegation.” Archer v. State, No. 13-18-00059-
7
CR, 2019 Tex. App. LEXIS 4216, at *10 (Tex. App.—Corpus Christi May 23, 2019) (mem.
op., not designated for publication) (citing TEX. CODE CRIM. PROC. ANN. art. 42A.751(i)).
Thus, when the State alleges more than one allegation at the revocation hearing, as is
the case here, “the State is not required to prove the defendant had the ability to pay or
that his failure to do so was willful.” Id. (citing Gipson v. State, 428 S.W.3d 107, 113 (Tex.
Crim. App. 2014) (Johnson, J., concurring). See also Farr v. State, No. 13-17-00297-CR,
2018 Tex. App. LEXIS 6714, at *9-10 (Tex. App.—Corpus Christi Aug. 23, 2018, no pet.)
(mem. op., not designated for publication)). Therefore, the trial court had before it
sufficient evidence to support a finding Appellant violated this condition.2
Appellant further argues that in its motion, the State alleged he violated condition
number 15 that required Appellant to attend psychological counseling sessions.
However, the community supervision officer testified that Appellant failed to attend
sessions of the sex offender counseling program as described in condition B, not
condition 15. Because, Appellant argues, evidence was given to support a violation of
condition B rather than condition 15 and because the State failed to allege Appellant
violated condition B, the evidence was insufficient to support revocation under condition
15. The testimony indicates that while there are two conditions pertaining to counseling,
one for psychological counseling and one for the sex offender counseling program, the
two were, in Appellant’s case, related or perhaps the same requirement. The officer
speaks to both individual counseling and group sessions, noting both of the conditions.
2 Appellant also argues that while his failure to pay the imposed fine is not alone subject to article
42A.751(i), the court included the repayment of the fine with the other fees and costs. Therefore, he asserts,
his community supervision should not have been revoked on his failure to make payments toward
repayment of the imposed fine. Because we have found the State was not required to prove Appellant had
the ability to pay fees and costs under the statute or that his failure to so pay was willful, we find the State
was not required to prove either with regard to the assessed fine.
8
Given this, the trial court could have been confused. In any event, this finding does not
warrant a reversal of the decision to revoke in light of the other established violations.
Condition 19 of Appellant’s community supervision order required him to complete
community service hours. At the time the motion was filed, the State alleged Appellant
was thirty-one hours delinquent. Appellant was required to perform 240 hours of service
and the officer testified he had completed only 6.5 hours by the time of the revocation
hearing. Appellant does not dispute this evidence; rather, he argues the State failed to
meet its burden of proof as to this allegation because the officer relied only on his own
records, did not refer to the departmental records as a whole, and did not state how he
received verification of completion of hours. We disagree with Appellant’s assessment of
the evidence and find the trial court could have determined there was sufficient proof to
support a finding that Appellant violated this condition.
Based on the above and foregoing, the trial court did not abuse its discretion in
determining Appellant violated at least one of the terms and conditions of his community
supervision. Accordingly, we overrule Appellant’s first issue.
ISSUE TWO—THE EFFECT OF EXHIBIT A(F) ON APPELLANT’S FAMILIAL RIGHTS
In his second issue, Appellant argues the restriction against contact with minor
children contained in Exhibit A(f) of his community supervision order unconstitutionally
restricted his familial rights and was not reasonably related to his underlying crime.3
3 In his appellate brief, Appellant refers to the restriction contained in Exhibit A(f) of his community
supervision order as “condition eight.” It is not, however, condition 8 of Appellant’s community supervision
order. It is the eighth allegation in the State’s motion to revoke. We will refer to the condition of which
Appellant complains as that condition set forth in Exhibit A(f).
9
Appellant pleaded guilty to sexual assault of a child. The victim was fourteen years
old and Appellant had just turned nineteen. Appellant acknowledges that because the
victim was considered a child under the law, the condition restricting his contact with minor
children is reasonably related to his underlying crime. However, he contends, if the order
did extend to his own biological children, something Appellant disputes because the order
did not explicitly say so, the condition was not reasonably related to the underlying crime
because his crime was not one against very minor children or incestuous in nature.
Rather, it was of the “statutory rape” variety and thus, Appellant posed no danger to his
own minor children. The condition, Appellant asserts, thus “eviscerated his constitutional
familial rights.”
The State argues Appellant has mischaracterized Exhibit A(f). The provision
provides in relevant part as follows:
Do not initiate, maintain, or establish direct or indirect contact with any minor
child, or attempt to do so, nor reside in the same residence with minor
children without prior permission of the court or supervision officer.
This, the State says, does not eviscerate Appellant’s constitutional rights but
instead, imposes only a safety requirement, i.e., that Appellant request permission prior
to seeing his children. We agree.
Texas trial courts are afforded “broad discretion” in devising terms of community
supervision. Cochran v. State, 563 S.W.3d 374, 378-79 (Tex. App.—Texarkana 2018, no
pet.) (citing Butler v. State, 189 S.W.3d 299, 303 (Tex. Crim. App. 2006); Briseno v. State,
293 S.W.3d 644, 647 (Tex. App.—San Antonio 2009, no pet.)). Trial judges “may impose
any reasonable condition that is designed to protect or restore the community, protect or
restore the victim, or punish, rehabilitate, or reform the defendant.” Id. (citing TEX. CODE
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CRIM. PROC. ANN. art. 42A.301(a) (West 2018)). The condition contained in Exhibit A(f)
was a permissible condition under the facts of this case. See Ex parte Alakayi, 102
S.W.3d 426, 435-36 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (discussing
restrictions imposed in community supervision order limiting contact with minors and
creating a child safety zone).
Appellant admits that under Exhibit A(f), he could have asked the trial court for
permission to see his biological children and he readily admits he did not do so. Instead,
once his conduct was being questioned, he simply says this shows, when considered
alongside the fact that Appellant did not attempt to hide his contact with his children from
the officer, that he did not understand that the order extended to contact with his own
minor children. But ignorance is not an excuse. Furthermore, the record shows the
community supervision officer testified he discussed with Appellant that this condition
“includes all children, biological and nonbiological.” In addition, the officer answered
affirmatively when asked whether he was “convinced that [Appellant] clearly understood
that included his own children.”
Thus, we cannot agree that Appellant’s asserted misunderstanding that the
condition did not apply to his own children alters the character of the condition such that
it violated his constitutional rights or placed an impermissible restriction on him. This is
true even though Appellant’s crime was “not against very minor children or incestuous in
nature” because limits like these may be placed on defendants on community supervision
for many crimes, regardless of the victim’s age. Ex parte Alakayi, 102 S.W.3d at 435.
(citations omitted); Briseno, 293 S.W.3d at 650.
11
Because the restriction set forth in Exhibit A(f) of Appellant’s supervision order did
not unconstitutionally restrict Appellant’s familial rights and was reasonably related to his
underlying crime, we resolve Appellant’s second issue against him.
REFORMATION OF JUDGMENT
During our review of Appellant’s issues, this court noted an error in the Judgment
Revoking Community Supervision. The summary portion of the judgment under the
heading “Plea to Motion to Revoke” reflects a plea of “True.” However, Appellant
contested the State’s allegations, pleading “not true” at the hearing. Furthermore, on
page two, paragraph five, of the Judgment Revoking Community Supervision the court
finds Appellant failed to attend psychological counseling sessions. As we have noted
above, the State’s evidence failed to establish this violation.
This court has the power to modify the judgment of the court below to make the
record speak the truth when we have the necessary information to do so. TEX. R. APP. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Appellate courts
have the power to reform whatever the trial court could have corrected by a judgment
nunc pro tunc where the evidence necessary to correct the judgment appears in the
record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). The
power to reform a judgment is “not dependent upon the request of any party, nor does it
turn on the question of whether a party has or has not objected in the trial court.” Id. at
529-30. Thus, we modify the trial court’s Judgment Revoking Community Supervision to
reflect a plea of “Not true” in the summary portion of the judgment and to delete the fifth
paragraph of the trial court’s findings concerning violations of the conditions of community
supervision.
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CONCLUSION
As modified, we affirm the judgment of the trial court.
Patrick A. Pirtle
Justice
Do not publish.
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