Derick Eugene Sloan v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-330-CR
DERICK EUGENE SLOAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Appellant Derick Eugene Sloan appeals the trial court’s order
adjudicating him guilty after finding that he had violated conditions of his
deferred adjudication community supervision. In one issue, Sloan argues
that the trial court abused its discretion by adjudicating him guilty because
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… See Tex. R. App. P. 47.4.
the evidence that he violated his community supervision was legally and
factually insufficient. We affirm.
II. Factual and Procedural Background
Sloan pleaded guilty to aggravated assault with a weapon and received
five years’ deferred adjudication community supervision and a $750 fine.
The State moved to adjudicate, arguing that Sloan had violated five
conditions of his community supervision by (1) committing two
offenses—fleeing from a peace officer and refusing to give the officer his
identifying information; (2) failing to report in person to the supervision
officer for two consecutive months; (3) failing to pay appropriate court costs
for a total of fifteen months; (4) failing to submit monthly payments on his
$750 fine for a total of twelve months; and (5) failing to pay his monthly
community supervision fee for a total of fifteen months.
At the hearing on the State’s motion to adjudicate, Sloan pleaded not
true to all of the allegations in the State’s motion. Regarding the first
violation of community supervision alleged by the State—that Sloan fled an
officer and refused to identify himself—Officer Noah Bragg, Constable for
Palo Pinto County, testified that on November 6, 2008, Sloan intentionally
refused to give the officer identification while he was trying to lawfully arrest
Sloan. Specifically, Sloan passed the officer going sixty miles per hour in a
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forty-five mile-per-hour zone on a red “ninja-style” motorcycle; Officer Bragg
immediately activated his overhead lights and proceeded to go after Sloan.
However, Officer Bragg could not catch Sloan, who continued to gain speed,
and the officer believed at that point that Sloan was fleeing from him.
Officer Bragg eventually saw the motorcycle parked outside of a gas
station, pulled in behind the motorcycle to investigate, and then noticed
Sloan exiting the station’s convenience store. He approached Sloan,
identified himself as the officer whom Sloan had passed earlier, and asked
Sloan to remove his helmet and produce identification. Sloan refused, put
gas in the motorcycle, and then started the engine. Officer Bragg ran over
to the motorcycle, grabbed the keys, and asked Sloan to step back from the
motorcycle and produce identification. Sloan refused again, demanded that
Officer Bragg return his keys, and slammed Officer Bragg’s truck door shut,
preventing Officer Bragg from accessing his radio. Officer Bragg told Sloan
that he was under arrest, and Sloan ran. Graham Police Officer Casey
Scobee eventually caught Sloan, and with the assistance of another officer,
handcuffed Sloan and placed him in the back of his patrol unit.
Cindy Collins also testified for the State regarding the offense and
explained that she had observed Sloan, her ex-husband, pass Officer Bragg
and had later seen Sloan in the back of a police car. However, Sloan
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testified that it was not him who had sped past Officer Bragg that day and
that Officer Bragg had never asked him for his name, but had only asked for
his driver’s license, which he could not find. Sloan also testified that Officer
Bragg never asked him to remove his helmet, that Sloan never slammed the
door shut on Officer Bragg’s truck, and that his hands were in front of him
the whole time. When asked his reason for running, Sloan testified that
Officer Bragg did not have his lights on, that he did not know why Officer
Bragg was there, and that he had a rough past with the police.
Regarding the second violation, failure to report in person, Steve
Richie, Sloan’s community supervision officer, testified that Sloan did not
report in person in September or October 2008. Richie filed a violation
report with the district attorney’s office. Sloan testified that he tried to
contact Richie to reschedule an appointment but that Richie was on vacation
and would never return his calls. Sloan testified that he called over thirty
times. Richie could not recall whether he went on vacation in September
2008, but if he had, he was unsure whether a call from Sloan would have
been reported. However, he testified that, if Sloan talked with another
officer, the officer probably would have recorded the call.
Richie also testified as to violations two through five, regarding Sloan’s
failure to submit monthly court-ordered payments for court costs, his fine,
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and the community supervision fee. According to Richie’s testimony, Sloan
failed to make his court-ordered payments for court costs and a community
supervision fee for May 2007, August through December 2007, January
through April 2008, and June through October 2008. Richie also testified
that Sloan failed to make his monthly payments toward the court-ordered
fine for October through December 2007, January through April 2008, and
June through October 2008. Additionally, Richie stated, “[W]e hardly ever
just violate on the money unless they just flat refuse to pay.” Richie
acknowledged that Sloan was having difficulty making payments because of
his divorce expenses.
After hearing all of the testimony, the trial court found the State’s
allegations to be true. The trial court adjudicated Sloan guilty of aggravated
assault with a deadly weapon and sentenced him to fourteen years’
confinement and a $1,500 fine. Sloan filed a notice of appeal; he also filed
a motion for new trial, which was overruled by operation of law.
III. Adjudication of Guilt Supported by Record
In his issue, Sloan argues the trial court abused its discretion by
adjudicating him guilty because the evidence was legally and factually
insufficient to show that he violated his community supervision.
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A. Standard of Review
We review an order revoking community supervision under an abuse of
discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984);
Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet.
ref’d). In a revocation proceeding, the State must prove by a preponderance
of the evidence that the defendant violated the terms and conditions of
community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.
App. 1993); Cherry, 215 S.W.3d at 919. The trial court is the sole judge of
the credibility of the witnesses and the weight to be given their testimony,
and we review the evidence in the light most favorable to the trial court’s
ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172,
174 (Tex. Crim. App. [Panel Op.] 1981); Cherry, 215 S.W.3d at 919. If the
State fails to meet its burden of proof, the trial court abuses its discretion in
revoking the community supervision. Cardona, 665 S.W.2d at 493–94.
Proof by a preponderance of the evidence of any one of the alleged
violations of the conditions of community supervision is sufficient to support
a revocation order. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App.
[Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App.
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[Panel Op.] 1980); Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort
Worth 2005, pet. ref’d.).
A factual sufficiency review is inapplicable to revocation proceedings.
See Becker v. State, 33 S.W.3d 64, 65–66 (Tex. App.—El Paso 2000, no
pet.); Joseph v. State, 3 S.W.3d 627, 642 (Tex. App.—Houston [14th Dist.]
1999, no pet.); Liggett v. State, 998 S.W.2d 733, 735–36 (Tex.
App.—Beaumont 1999, no pet.).
Inability to pay is an affirmative defense that the defendant must raise
and prove by a preponderance of the evidence. Tex. Code Crim. Proc. Ann.
art. 42.12, § 21(c) (Vernon Supp. 2009); Stanfield v. State, 718 S.W.2d
734, 737–38 (Tex. Crim. App. 1986). If the defendant raises the issue and
meets his burden, the burden shifts to the State to prove that he
intentionally failed to pay. Stanfield, 718 S.W.2d at 738.
B. Analysis
We determine that a preponderance of the evidence does not support
Sloan’s inability to make the missed payments but does support the alleged
violations of conditions (3), (4), and (5) of his community supervision
regarding payment of costs and fees. See Cardona, 665 S.W.2d at 493;
Moore, 605 S.W.2d at 926. Sufficient evidence supports the trial court’s
judgment.
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IV. Conclusion
We affirm the trial court’s judgment.
CHARLES BLEIL
JUSTICE
PANEL: MCCOY and MEIER, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 31, 2010
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